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id_409	0	Judgment Central Bureau of Investigation Special Case No. 35/2008 CNR No. MHCC02-002359-2008 Date of Institution/Filing 08/07/2008 Date of Registration 08/07/2008 Date of Judgment 03/11/2023 Duration 15 years 3 months 26 days Exhibit No.137 The Central Bureau of Investigation, Anti Corruption Bureau, Mumbai. Prosecution Faraz Sultan Khan, aged about 47 years, residing at Yusuf Manzil, Nawab Gate, Rampur, Uttar Pradesh, Police Station Kothwali, P.O. Rampur (Mustafabad, Delhi). Accused Appearance: Learned Subordinate Prosecuting Officer P. K. B. Gaikwad for the prosecution, Central Bureau of Investigation, Anti Corruption Bureau, Mumbai. Learned Advocate Saeed Akhtar for the accused., The accused Faraz Sultan Khan stands prosecuted for the offence under Section 416 of the Indian Penal Code, punishable under Section 419 read with Section 511 of the Indian Penal Code, and Sections 8 and 9 of the Prevention of Corruption Act, 1988., A written complaint was received on 10 May 2006 from Ketan K. Tirodkar alleging that Faraz Khan had demanded Rs 30 lakh from him for obtaining a favourable verdict in Criminal Application No. 6572/2005 filed by the State of Maharashtra in the Bombay High Court and pending before Honourable Justice A (name not disclosed) of the Bombay High Court against the order of the Maharashtra Control of Organized Crime Court, Mumbai granting him bail., The complainant is a private complainant in Special Maharashtra Control of Organized Crime Case No. 4/2003 against police‑underworld nexus. The State of Maharashtra had filed Criminal Application No. 6572 of 2005 before the Honourable Bombay High Court seeking cancellation of bail granted to the complainant by the Special Court of the Maharashtra Control of Organized Crime, Mumbai and he is contesting the same. On 28 March 2006 he filed an Intervention Application in Special Leave Petition No. 103 of 2006 before the Supreme Court of India and, after receiving a letter from the Registrar of the Supreme Court, he removed a defect on 1 May 2006. On 2 May 2006 he filed an Intervention Application in SLP No. 1694/2006 filed by the State of Maharashtra., It is alleged that on the evening of 2 May 2006 he was approached by Mr. Faraz Khan, resident of Delhi, through a common friend from Pune. The duo came to his Room No. 56 in the Indian Institute of Public Administration, New Delhi in the late evening of 2 May 2006. Faraz spoke to the complainant about his close association with some Central Ministers and claimed to be brother‑in‑law of Honourable Justice B of the Delhi High Court (name not disclosed)., It is further alleged that he was in the process of consulting eminent lawyers from the Supreme Court in connection with Criminal Application No. 6572/2005. He had spoken to Advocate Uday Dube of the Supreme Court over telephone the same evening and to Advocate Mahesh Jethmalani, who was recovering from surgery in London. After learning about the high‑profile contacts of Faraz Khan he requested him to arrange a lawyer on a charitable basis to appear for him in the hearing of Criminal Application No. 6572/2005 scheduled for 4 May 2006 before Honourable Justice A of the Bombay High Court. Faraz Khan asked the complainant to write down the details of the date and application number so that he could arrange a junior lawyer to seek time for a senior counsel on a charitable basis. The complainant wrote the number of the criminal application, the name of the Honourable Lordship and the date of hearing and left for Mumbai on 3 May 2006. He called Faraz Khan that evening to inquire about the development, and Faraz Khan said he would revert back., It is alleged that the complainant received a call from Faraz Khan on the same evening of 3 May 2006 and Faraz Khan stated that his job was done and asked the complainant to call back. The complainant called back from a STD booth and Faraz Khan said that he would require Rs 30 lakh for obtaining a favourable verdict in Criminal Application No. 6572/2005. The complainant was shocked and could not react. He returned home, received a missed call from Faraz Khan and called him again. Faraz Khan said that he would require two first‑class air tickets from Delhi to Mumbai the next morning and a stay in a five‑star hotel for two persons so that the message could be conveyed to the concerned in the Bombay High Court before 11.00 a.m. The complainant expressed his inability to comply and thanked him for his concern. He did not counter him as he did not want to create enemies., It is alleged that the next morning the complainant appeared before Honourable Justice A of the Bombay High Court and pleaded for permission to appear for law examinations and to perform an engagement. The prosecution did not object and time was granted up to 19 May 2006. Later that day or the next afternoon Faraz Khan called the complainant and said that the job was done. The complainant became alert and decided to trap Faraz Khan. He thanked Faraz Khan for his concern and requested him to call on his MTNL landline after some time. The complainant attached a recording device to his MTNL landline and recorded the conversation. He borrowed two days to arrange Rs 30 lakh on the ground that his aunt would send it from the United States. Faraz Khan told him that he would be in Lucknow on Saturday 6 May for a marriage and would be back in Delhi on Sunday., It is further alleged that the complainant received a call from his Pune‑based friend Milind Gaikwad on Saturday night and again on the same night, which he recorded. He repeated that he wanted to pay the money demanded by Faraz Khan on behalf of Honourable Justice B of the Delhi High Court. The complainant then received a call from Faraz Khan on Sunday afternoon; his mother asked Faraz Khan to call on their MTNL number around 6 p.m. as per his request since the complainant had attached a recording machine to the MTNL number. The complainant received another call on Monday 8 May evening from Faraz Khan on his MTNL landline and recorded this conversation in which the complainant insisted that his cousin, who was bearing the expenses, would like to discuss a Supreme Court verdict with Honourable Justice B of the Delhi High Court as the verdict had been annexed to his affidavit before the Bombay High Court. On this request Faraz Khan said that Ahmed Sahib would not meet anyone, but on the complainant’s insistence Faraz Khan said that they would work out a meeting in person., It is alleged that the complainant has been fighting a lonely battle against some evils in the system. A witness in the Maharashtra Control of Organized Crime Case No. 4/2003 had also instituted a private complaint. He has also filed a private complaint against R. M. Dhariwal, Mumbai Police Commissioner A. N. Roy and former Central Bureau of Investigation Director U. S. Mishra for having conspired to sabotage investigation in the infamous Gutkha case. His legal submissions were upheld in totality by the majority view of the Full Bench of the Bombay High Court in their judgment dated 22 December 2005. Due to this judgment the fate of many powerful persons accused in various Maharashtra Control of Organized Crime cases came in danger. Immediately after this judgment the State of Maharashtra filed Criminal Application No. 6572/2005 seeking cancellation of bail granted to him by the Special Court in his own complaint case registered against him at his instance., The complaint records the accused’s mobile numbers as 9811788126 and 9811788137, the complainant’s MTNL number as 2435788 and the Tata telephone number as 7., The verification of the complaint was undertaken and a letter dated 24 July 2006 from Shri V. K. Jain, Court Administrator‑cum‑Registrar General, Supreme Court of India, New Delhi was received on 4 August 2006 informing that Honourable Justice B of the Delhi High Court has no brother‑in‑law named Faraz Khan. The alleged demand was an attempt to cheat the complainant and denigrated the judiciary. Consequently RC/BA1/2006/A0032 was registered by the Central Bureau of Investigation, Anti Corruption Bureau, Mumbai on 14 August 2006 for the offence under Section 416 of the Indian Penal Code, punishable under Section 419 of the Indian Penal Code, along with Sections 8 and 9 of the Prevention of Corruption Act, 1988., The investigation was assigned to K. Babu, Deputy Superintendent of Police, Central Bureau of Investigation, Anti Corruption Bureau, Mumbai. During the investigation the investigating officer obtained permission from the concerned court and visited Arthur Road Central Prison, Mumbai and recorded the complainant’s statement. The complainant handed over cassettes of the telephonic recordings to press reporter Mr. Jayesh Shirsath and another copy to his mother. The investigating officer also visited the complainant’s residence and seized a copy of the audio cassette containing the telephonic recording, a copy of the order dated 4 August 2005 in Bail Application No. 24/2005 in Maharashtra Control of Organized Crime Case No. 11/2004 passed by the Special Judge, Mumbai under the Maharashtra Control of Organized Crime Act, copies of orders dated 23 May 2006, 24 May 2006 and 5 June 2006 passed by the Honourable Bombay High Court in Criminal Application No. 6572/2005, and the cassettes held by press reporter Jayesh Shirsath (PW‑7) which were seized on 19 September 2006. On 30 April 2008 the investigating officer also seized a Fonotel Model telephone‑recording machine from the complainant’s mother., On 3 March 2008 the investigating officer prepared a Transcription Panchnama and Annexures A and B in the presence of the panchas based on the conversations recorded in the cassettes recovered from press reporter Jayesh Shirsath. Annexure A contains the conversation between the complainant and Milind Gaikwad (PW‑4). Annexure B contains the conversation between the complainant and the accused., During further investigation the investigating officer confirmed the installation of telephone lines at the complainant’s residence and collected Call Detail Records (CDR) with certificates from the service provider, along with relevant documents. The certified copy of the Visitors Register of the Indian Institute of Public Administration, New Delhi was also collected to show the complainant’s stay in Delhi between 29 April 2006 and 3 May 2006., The investigating officer arrested the accused. On 4 March 2008 a voice specimen of the accused was collected on an audio cassette in the presence of the panchas and a Voice Specimen Panchnama was prepared along with Annexure A, which contained the text given to the accused for reading. The suspected voice and the voice specimen were sent to the Centre for Forensic Science Laboratories, New Delhi for spectrographic testing., The statement of the witnesses was also recorded. Upon completion of the investigation, the charge‑sheet was filed on 8 July 2008. Later, by order dated 13 March 2019, the prosecution was permitted to produce an attested copy of the Forensic Voice Examination Report/Spectrographic Report dated 28 July 2008. On 20 June 2019 the prosecution filed an application to deposit the Fonotel Model telephone‑recording machine and, by order dated 20 June 2019, the machine was deposited. On 9 March 2021 the prosecution filed an application to deposit a CD containing true copies of exhibits and a certificate under Section 65‑B of the Evidence Act, and by order dated 9 March 2021 the CD was deposited., A charge, vide Exhibit 44, was framed against the accused for the offence under Section 416 of the Indian Penal Code, punishable under Section 419 read with Section 511 of the Indian Penal Code, as well as under Sections 8 and 9 of the Prevention of Corruption Act, 1988, by the learned predecessor. The charge was read and explained to the accused in the vernacular. He pleaded not guilty and claimed to be tried., In order to prove the charge, the prosecution examined eleven witnesses and submitted documentary evidence. The defence did not adduce any defence evidence. The statement of the accused under Section 313 of the Code of Criminal Procedure was recorded. The accused denied the incriminating circumstances and alleged false prosecution., The learned Subordinate Prosecuting Officer P. K. B. Gaikwad for the Central Bureau of Investigation and the learned Advocate Saeed Akhtar for the accused submitted written notes of arguments. Both sides relied upon several case laws. The Subordinate Prosecuting Officer submitted a list of case laws and later indicated that the case law at serial number 5 in that list was not relevant and was not relied upon., The court must determine whether the prosecution proved that in May 2006, in a hostel room of the Indian Institute of Public Administration, New Delhi, Milind Gaikwad of Pune introduced the accused to the complainant Ketan Tirodkar, that the accused spoke about his close association with some Central Ministers and pretended to be the brother‑in‑law of Honourable Justice B of the Delhi High Court, and that on a telephonic conversation in Dombivali the accused demanded Rs 30 lakh on behalf of the Honourable Lordship for a favourable verdict, thereby committing an offence under Section 416 read with Section 419 and Section 511 of the Indian Penal Code., The court must also determine whether the prosecution proved that the accused, claiming to be the brother‑in‑law of Honourable Justice B of the Delhi High Court, made a demand of Rs 30 lakh as gratification for inducing a public servant to render a favourable verdict, thereby committing an offence under Section 8 of the Prevention of Corruption Act., The court must further determine whether the accused, claiming to be the brother‑in‑law of Honourable Justice B of the Delhi High Court, made a demand of Rs 30 lakh as gratification for influencing a public servant to show favour to the complainant, thereby committing an offence under Section 9 of the Prevention of Corruption Act., At the outset, certain material undisputed facts emerge from the record and from the submissions of the learned advocate for the accused. The accused is a private person and not a public servant; therefore, there is no question of sanction for the prosecution. It is undisputed that Criminal Application No. 6572/2005 was pending before the Honourable Bombay High Court, filed by the State of Maharashtra under Section 439(2) read with Section 482 of the Code of Criminal Procedure, challenging the order passed by the Special Judge under the Maharashtra Control of Organized Crime Act, 1999, Mumbai dated 4 August 2005 in Bail Application No. 24/2005 in Maharashtra Control of Organized Crime Special Case No. 11/2004 granting interim bail to the complainant., The prosecution examined eleven witnesses: Rajeshkumar Sadhuram (clerk in the hostel of IIPA, Delhi); Gulshan K. Arora (nodal officer, Hutchison Essar Mobile Services Ltd.); N. K. Choudhary (commercial officer, BSNL, Thane); Milind S. Gaikwad (acquaintance of the complainant); Ketan K. Tirodkar (complainant); Ravinder R. Gupta (panch on Transcription Panchnama and Voice Specimen Panchnama); Jayesh V. Shirsath (acquaintance of the complainant, handed over two audio cassettes to CBI); Dattatraya Sawant (nodal officer, Tata Tele Services, Navi Mumbai); Dr. Rajinder Singh (retired director of CFSL, New Delhi); Chotelal Ramanand Yadav (panch on Transcription Panchnama and Voice Specimen Panchnama)., The prosecution produced numerous documents, including the certified copy of the Visitor Register of the Indian Institute of Public Administration, New Delhi; Call Detail Records of mobile numbers 9811788126 and 9811788137 with certificates under Section 65‑B of the Evidence Act; letters from BSNL and Tata Tele Services confirming installation of telephone lines; transcripts and annexures of the recorded conversations; voice specimen panchnama; forensic voice examination report; and various orders of the Bombay High Court relating to Criminal Application No. 6572/2005., The charge‑sheet was filed in 2008 together with a list of articles, including a Fonotel Model telephone‑recording machine, which was not deposited with the charge‑sheet. On 20 June 2019 the prosecution deposited Article 3 (cotton cloth) and Article 3/1 (telephone‑recording machine). On 19 April 2018 the court directed the production of two audio cassettes (Exhibit C and Exhibit D). The CBI complied on 12 March 2019, stating that the cassettes were forwarded to CFSL and later received back, but they were not traceable. By 17 December 2020 the prosecution had adduced evidence of nine witnesses, including Dr. Rajender Singh, who testified that the voice examination was transferred to the CFSL system. The court directed the production of true copies of the cassettes on 9 March 2021., The learned Subordinate Prosecuting Officer argued that the complainant Ketan Tirodkar made a written complaint (Exhibit 86) received by the Central Bureau of Investigation on 10 May 2006. A letter from the Court Administrator‑cum‑Registrar General of the Supreme Court dated 24 July 2006 was received on 4 August 2006. The FIR (Exhibit 87) was registered on 14 August 2006. The complainant testified about his stay in the hostel of the Indian Institute of Public Administration, Delhi from 29 April 2006 to 3 May 2006 and his meeting with Milind Gaikwad and the accused. The accused represented himself as brother‑in‑law of Honourable Justice B of the Delhi High Court and claimed that Honourable Justice B and Honourable Justice A of the Bombay High Court, before whom the matter was pending, were friends. The complainant asked the accused to help find an appropriate counsel on a charitable basis. On 3 May 2006 the accused informed the complainant that he would obtain temporary relief for a payment of Rs 30 lakh. The complainant obtained two weeks’ time to prepare a reply in his bail cancellation matter. He recorded the telephone conversation using a recording machine attached to his landline. The complainant’s evidence is corroborated by the evidence of Rajeshkumar Sadhuram, Milind Gaikwad and Jayesh Shirsath, and there is no evidence in cross‑examination to disbelieve the complainant., The learned Subordinate Prosecuting Officer further argued that Rajeshkumar Sadhuram testified about the complainant’s stay in the hostel and produced the certified Visitors Register. Milind Gaikwad deposed about the meeting between the complainant and the accused in his presence at the Delhi hostel and about receiving a telephonic call concerning the demand of Rs 30 lakh. Jayesh Shirsath testified about handing over the cassettes to him and their production before the Central Bureau of Investigation. The complainant also testified on the same matters. The evidence of these witnesses is considered reliable., The learned Subordinate Prosecuting Officer drew attention to the written complaint and submitted that there were two telephone landlines in the complainant’s house and the accused used two mobile numbers as mentioned in the complaint. Gulshan Arora submitted Call Detail Records of the two mobile numbers with a certificate under Section 65‑B of the Evidence Act. N. K. Choudhary submitted documents confirming the installation of a BSNL telephone landline at the complainant’s house. Dattatraya Sawant submitted documents confirming the installation of a Tata telephone landline and the corresponding Call Detail Records with a certificate under Section 65‑B of the Evidence Act., The original cassettes were recovered from Jayesh Shirsath on 19 September 2006. Jayesh Shirsath and Investigating Officer K. Babu testified about the recovery. On 12 September 2006 copies of the audio cassette containing the telephonic recordings and copies of orders were recovered from the complainant’s mother. The cassette was played before the complainant in jail by Investigating Officer K. Babu. On 3 March 2008 the transcripts of the recorded conversations seized from Jayesh Shirsath were prepared by Investigating Officer K. Babu in the presence of Jayesh Shirsath, Ravinder Gupta and Chotelal Yadav. At that time Jayesh Shirsath identified the voice of the complainant., It is further argued that the accused was arrested and on 4 March 2008 the voice specimen of the accused was collected on a micro‑cassette as per script, read by the accused in the presence of Ravinder Gupta and Chotelal Yadav. The Voice Specimen Panchnama was prepared, and the investigating officer and the panch witnesses testified about the procedure. Their testimonies corroborate each other.
id_409	1	Milind Gaikwad (Party Witness 4), complainant Ketan Tirodkar (Party Witness 5) and Jayesh Shirsath (Party Witness 7) identified the voice in the Supreme Court of India when the CD was played. The transcription shows cheating by personation and demand from the accused. According to the Learned Senior Public Prosecutor, Dr. Rajinder Singh (Party Witness 10) deposed in detail about receipt of an audio cassette containing the questioned voice of the accused and a micro audio cassette containing a specimen voice of the accused. After examination he issued a Forensic Voice Examination Report/Spectrographic Report (Exhibit 106). Following directions of the Supreme Court of India, he went to the Central Forensic Science Laboratory, retrieved the true copies of the questioned and specimen voices from the system, prepared copies on a CD and submitted the CD along with a certificate under Section 65‑B of the Evidence Act., The letter (Exhibit 103) shows that Honourable Justice B of the Delhi High Court does not have a brother‑in‑law named Faraz Khan. The complainant has never handed over the demanded money to the accused. Although the defence has alleged several criminal acts on the part of the complainant, no record has been produced to explain why the complaint was lodged. The accused is a private person, so no sanction for prosecution is required. The prosecution evidence is sufficient to establish the guilt of the accused and contains no infirmity., The Learned Senior Public Prosecutor relied upon the following case law: Yusufalli Esmail Nagree v. State of Maharashtra, AIR 1968 Supreme Court 147, where it was observed that in a trap case the conversation between accused and complainant was tape recorded, the voices were identified, and the contemporaneous dialogue formed part of res gestae and was relevant under Section 8 of the Evidence Act. The Apex Court held that an accurate tape record of a relevant statement is admissible, provided the time, place and accuracy of the recording are proved by a competent witness and the voices are properly identified. The Court must be satisfied beyond reasonable doubt that the recording has not been tampered with., The Learned Senior Public Prosecutor also cited Neeraj Dutta v. State (Government of NCT of Delhi), AIR 2023 Supreme Court 330, observing that even in the absence of the complainant’s evidence regarding demand of bribe, the Court can draw an inference of culpability of a public servant on the basis of other prosecution evidence. If the complainant turns hostile, dies or is unavailable, the demand for illegal gratification can be proved by any other witness, either orally or by documentary evidence, or by circumstantial evidence. It is established law that when all incriminating facts are incompatible with the innocence of the accused, a cogent chain of events leaving no reasonable doubt may be inferred., The Learned Senior Public Prosecutor further relied on State of Maharashtra v. Narsingrao Gangaram Pimple, AIR 1984 Supreme Court 63, where the accused was initially convicted under Sections 5(1)(a) and 5(2) of the Prevention of Corruption Act, the High Court set aside the conviction, but the Apex Court restored it. The Apex Court observed that the learned judge’s approach towards the prosecution was not independent and was tainted by prejudice, likening it to wearing coloured glasses that distort perception, thereby undermining the correct judicial approach to evidence in a trap case., The Learned Senior Public Prosecutor also cited Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 Supreme Court 753, noting that excessive importance should not be given to minor discrepancies that do not go to the root of the matter, especially when the overall probability favours the version narrated by the witnesses., The Learned Senior Public Prosecutor referred to Sohrab and Another v. State of Madhya Pradesh, AIR 1972 Supreme Court 2020, observing that the rule ‘falsus in uno, falsus in omnibus’ is not sound because witnesses may contain minor untruths or embellishments, but the core of the prosecution case must be reliable and not reconstructed by the Court., The Learned Senior Public Prosecutor cited State of Uttar Pradesh v. M. K. Anthony, AIR 1985 Supreme Court 48, stating that a witness’s evidence does not become inadmissible merely because the investigating officer obtained the witness’s signature on his statement, and that minor discrepancies and technical errors should not be given undue importance if the evidence is generally reliable., The Learned Senior Public Prosecutor relied on Mritunjoy Biswas v. Pranab @ Kuti Biswas, AIR 2013 Supreme Court 3334, observing that minor contradictions and omissions do not affect the core of the prosecution case and cannot be a ground to reject prosecution evidence., The Learned Senior Public Prosecutor cited Dattatraya Krishanaji Joshi v. State of Maharashtra, 1991 Criminal Law Journal 2097 (Bombay High Court), observing that the making of a demand is a matter of understanding between the person who demands and the person who pays, not between the accused and any third person., The learned Advocate for the accused argued that the cardinal principle of criminal jurisprudence places the entire burden of proving the case beyond reasonable doubt on the prosecution. In the present case there are several clouds of doubt, and the benefit of doubt must go to the accused. The Central Bureau of Investigation received a detailed written complaint (Exhibit 86) of eleven pages on 10 May 2006, but the FIR was not registered until 14 August 2006, after an unexplained long delay, which is fatal to the prosecution. The Advocate further described the case as a classic example of fabrication through misuse of technology., The learned Advocate highlighted that the complainant (Party Witness 5) is the only witness alleging the demand and recording of the conversation, while the other witnesses are hearsay. The complaint does not mention Honourable Justice A of the Bombay High Court. In the written complaint the complainant himself termed all allegations as humbug, which undermines the allegation of personation for cheating. The Advocate drew attention to the letter of the Court Administrator‑Cum‑Registrar General of the Supreme Court of India (Exhibit 103) stating that there was no involvement of a public servant, thereby collapsing Sections 8 and 9 of the Prevention of Corruption Act. Nevertheless, the FIR was registered invoking those sections., The learned Advocate further noted that the complainant’s credibility is questionable given his background and past history. He referred to the contempt petition Bombay High Court, Suo Motu Contempt Petition No. 1 of 2017, decided on 11 October 2018 by a bench of three judges, where the complainant was convicted for publishing alleged instances of misconduct of sitting and retired judges of the Bombay High Court on his Facebook profile. The judgment observed that naming judges individually and casting aspersions on their character constitutes criminal contempt, scandalising and lowering the authority of the Court., The Advocate also pointed to paragraph 107 of the cross‑examination of the complainant, where he admits that he was convicted by the Bombay High Court for three months in a contempt proceeding, and to paragraphs 34, 37, 42, 44, 45, 46, 55, 56 and 115 of the cross‑examination, asserting that the complainant’s criminal history is sufficient to disbelieve his evidence., The learned Advocate argued that there is no positive evidence to show the alleged personation for cheating in the name of Honourable Lordship. The complainant’s evidence is not consistent with the written complaint and lacks corroboration from Party Witness 4 and Party Witness 7 on material aspects, indicating that the complainant is not telling the truth before the Supreme Court of India and is losing credibility., The Advocate further contended that there is no positive and credible evidence of seizure of the original audio cassettes. The complainant admitted in paragraph 100 of the cross‑examination that he handed over a copy of the cassette to Party Witness 7 for backup. Consequently, the seizure of audio cassettes from Party Witness 7 (Production‑Cum‑Seizure Memo, Exhibit 97 dated 19 September 2006) cannot be said to be a seizure of the original cassettes. The complainant testified that copies of the audio cassettes were with his mother, and the seizure from his mother (Production‑Cum‑Seizure Memo dated 12 September 2006, Exhibit 88) was also of copies, not originals. Therefore, the Transcription Panchnama dated 3 March 2008 and its annexures, prepared on the basis of copies, lose significance., The Advocate argued that the cassettes alleged to have been seized from Party Witness 7 have not been produced on record by the prosecution, the reason given being misplacement during the shift of the CBI office. Party Witness 4 testified that the conversation he heard was from the micro cassette and that Transcript Annexure‑A was prepared from that cassette using a cassette recorder. Investigating Officer K. Babu (Party Witness 9) stated that the recording machine (Article‑3/1) and the micro cassette were used for recording the conversation with the help of a telephone recording instrument. Dr. Rajinder Singh, retired director of the Central Forensic Science Laboratory, received a normal audio cassette (Q‑1) for spectrographic examination, creating further doubt about the seizure of the alleged audio cassettes., The Advocate noted that Party Witness 7 could not recollect the period when he received the cassettes in 2005, raising doubt about the alleged handover of the conversation cassettes by the complainant in 2005 for an incident that allegedly occurred in 2006., The Advocate further observed that Party Witness 6 (Ravinder Gupta) and Party Witness 11 (Chotelal Yadav) are panch witnesses on the Transcription Panchnama and its annexures, but their evidence is contradictory, rendering it unreliable. The prosecution even declared Party Witness 11 hostile during cross‑examination, thereby failing to prove the Transcription Panchnama and its annexures., The Advocate highlighted that during Dr. Rajinder Singh’s evidence on 13 January 2021, this Court directed him to search the system for any available record and to produce copies of the conversation. On 12 March 2021 he produced a copy of the alleged conversation on a CD along with Certificate Article‑4/1. However, the cross‑examination of Dr. Singh discredits the evidentiary value of his forensic report, casting doubt on the Forensic Voice Examination Report/Spectrographic Report (Exhibit 106)., The Advocate pointed out that, according to the written complaint, the complainant had a MTNL landline at his residence and had attached a recording machine to it, yet no evidence has been produced to show that such a landline existed. The mobile phones alleged to have been used by the accused were neither seized nor linked to the accused, diminishing the significance of the testimony of Party Witnesses 2, 3 and 8. The evidence of Party Witness 1 and Investigating Officer K. Babu is also not free from doubt, indicating several lapses in the investigation., The prosecution evidence is not sufficient to prove the case. There is reasonable doubt, and the accused deserves acquittal on the benefit of doubt., The learned Advocate relied upon Yemmiganur Shiva Reddy v. State of Maharashtra, Criminal Revision Application No. 549/2019 decided on 6 June 2023 by the Bombay High Court, where the question was whether Section 12 of the Prevention of Corruption Act was attracted; the charge in the present case is not under Section 12., The Advocate also cited Kishore Khanchand Wadhwani and Others v. State of Maharashtra, Writ Petition No. 2925/2019 decided on 26 July 2019 by the Bombay High Court, where the petitioners sought quashing of proceedings under Sections 7 and 12 of the Prevention of Corruption Act; the present case does not involve those sections., The Advocate referred to Bishwanath Rai v. Sachhidanand Singh, AIR 1971 Supreme Court 1949, observing that a letter written by a person is relevant and admissible to the extent that its existence and contents have bearing on the issues, while the correctness of its contents must be proved by examining the author as a witness., I have given mindful consideration to the submissions of both sides and the cited case law. Regarding points 1 to 3, the following ingredients of Section 416 of the Indian Penal Code are relevant: (1) pretence by a person to be some other person; (2) knowingly substituting one person for another; (3) representation that he or any other person is a person other than he or such other person really is; (4) cheating someone by impersonation., The ingredients of Section 8 of the Prevention of Corruption Act that must be proved are: (1) solicitation, offer or receipt of any gratification; (2) the gratification must have been asked for, offered or paid as a motive or reward for inducing, by illegal or corrupt means, a public servant; and (3) the public servant must do or forbear to do an act, render or attempt to render any service or dis‑service to any person with the Central or State Government or any public servant., The ingredients of Section 9 of the Prevention of Corruption Act are: (1) the accused accepted or agreed to accept, obtain or attempt to obtain for himself or anyone on his behalf a gratification; (2) the gratification must be as a motive or reward to induce a public servant by the exercise of personal influence (a) to do or to forbear to do any official act, (b) to show favour or disfavour in the exercise of his official functions, or (c) to render or attempt to render any service or dis‑service to any person with the Central or State Government or any public servant. Section 8 applies even when the influencer is not a public servant, whereas Section 9 deals with gratification for inducing a public servant by personal influence., The evidence shows that the complainant’s bail application was allowed by the Metropolitan Court (MCOC), Mumbai, and Honourable Justice A of the Bombay High Court set aside his bail on the first occasion. He was approached by Mr. Vijay Chitnis and Mr. Soni, surrendered before the MCOC, and was later re‑arrested after filing a fresh bail application which was again allowed in July 2005. The State of Maharashtra then filed Criminal Application No. 6572/2005 for cancellation of bail before the Bombay High Court, where it was placed before Honourable Justice A. The complainant also filed an intervention application before the Supreme Court of India., While in Delhi, the complainant stayed in Room No. 56 of the hostel of the Indian Institute of Public Administration from 29 April 2006 to 3 May 2006, as shown by the certified copy of the Visitors Register (Exhibit 55). On the day before his departure, the accused, accompanied by Milind Gaikwad, came to his room. Gaikwad introduced the accused as the brother‑in‑law of Honourable Justice B of the Delhi High Court and informed him that the accused had acquaintances with prominent personalities in Delhi. When the accused learned of the complainant’s bail application, he claimed that Justice B and Justice A were friends and the complainant asked the accused to find an appropriate counsel appearing before Honourable Justice A on a charitable basis., After returning to Mumbai on 3 May 2006, the complainant called the accused and reminded him of the promised legal assistance. The accused replied, “Bat ho gayee hai, aap High Court jao, kaam ho jayega,” indicating that the complainant would obtain temporary relief if he went to the High Court. When asked about the meaning of temporary relief, the accused clarified that the complainant needed to wait about two weeks for the relief to be granted., The complainant later testified that the accused told him he had spoken to Honourable Justice A and that the complainant would receive temporary relief only upon payment of Rs 30 lakh., The complainant recorded the telephonic conversation using a recording machine borrowed from a friend, which he attached to his BSNL landline (and also possessed a Tata landline). After recording sufficient conversation, he approached the Central Bureau of Investigation office at Tanna House, Mumbai, with a written complaint alleging demand of bribe, and produced the written complaint as evidence., The complainant testified that during the next hearing in the Bombay High Court he informed Honourable Justice A of the bribery demand and that the CBI had recorded his statement. He filed a fresh bail application, which was accepted by Honourable Justice A across the bar, but the last paragraph of that application mentioned the demand for bribe and the CBI’s recording. On or about 4–5 June 2006, Honourable Justice A set aside the bail granted by the MCOC, and the complainant again applied for bail, resulting in his judicial custody., On 7 September 2006, while the complainant was lodged in Arthur Road Jail in connection with the offence under the MCOC case, Investigating Officer K. Babu visited the jail and inquired about the audio cassettes containing the recorded conversation. The complainant disclosed that copies of the cassettes were with his mother, while the original cassettes were with his journalist friend Jayesh Shirsath. He handed a letter addressed to his mother requesting the handover of the copies to Officer Babu. Production‑Cum‑Seizure Memos dated 12 September 2006 and 30 April 2008 (Exhibit 88) record the receipt of the copies, the High Court orders, and the telephone‑recorder instrument (Article‑3/1) from the complainant’s mother., The complainant further testified that Officer Babu played the cassettes in his presence in jail, and the complainant identified his own voice, the accused’s voice, and Milind Gaikwad’s voice. The voice recording of Milind Gaikwad was also made in May 2006 to collect evidence. Copies of the bail orders (Exhibit 89) were produced., The complainant also stated that he had spoken with the accused on his landline, and the accused asked him to pay Rs 30 lakh for making payment to Honourable Justice A of the Bombay High Court and Honourable Justice B of the Delhi High Court. The accused said he would come to Mumbai to collect the payment, work out the modalities of the case, and asked the complainant to arrange air tickets from Delhi to Mumbai.
id_409	2	The complainant has also identified the voice from the conversation when CD Article‑4/1 was played before the Bombay High Court. It has come in the cross‑examination of complainant Ketan Tirodkar (Witness 5) that in the year 2002 he met Daya Nayak and Daya Nayak was taking money from gangsters abroad to favour their henchmen. On occasions he had acted as a person to collect money on behalf of Daya Nayak, he participated in the activities of Daya Nayak, he was arrested on 09‑07‑2004 for investigation in the case of Daya Nayak, the Central Bureau of Investigation of Gujarat arrested him pertaining to the encounter case of Sadiq Jamal, he became a party to that crime as he could not stop that crime, he was in judicial custody in the Maharashtra Control of Organised Crime case, prior to 29‑04‑2006 he had filed a complaint against one of the judges of the Hon'ble Bombay High Court without proof but on the basis of mere information and he had collected money from the gangsters and others at the instance of Mr Daya Nayak. It has further come in the cross‑examination of the complainant that he had conducted an interview with Dawood Ibrahim, there was no guarantee that the person who was interviewed was in fact Dawood Ibrahim and the interview was published as if Dawood Ibrahim had given the interview. The complainant has further admitted in cross‑examination that in October 2018 he was convicted by the Hon'ble Bombay High Court for a period of three months in a contempt proceeding and he had made allegations against several judges of the Hon'ble Bombay High Court. The learned advocate for the accused has pressed into service the observations in the case of the Bombay High Court on its own motion versus Ketan Tirodkar, Suo Moto Contempt Petition No. 1/2017 decided on 11‑10‑2018 by the bench of three judges of the Bombay High Court. Perusal of the same makes it clear that it is in respect of publishing the alleged instances of misdemeanour and misconduct of some sitting and retired judges of the Bombay High Court by Ketan Tirodkar on his Facebook profile and there is a reference therein in respect of application of the year 2006 and of litigations since the year 2007 including the rejection of bail application of Ketan Tirodkar by a lady judge when she was in the Maharashtra Control of Organised Crime Court; therefore, the said judgment in the contempt case is relevant for the case in hand. The Bombay High Court has observed in the contempt petition that, by naming judges individually, sitting and retired, and casting aspersions on their character, integrity and impartiality, the respondent is guilty of criminal contempt. This is not a mere defamation of a judge otherwise than in discharge of his or her duties as such. This is a clear case of scandalising and lowering the authority of the Court itself. By targeting the judges of this Court, the respondent is scandalising and lowering the authority of the Court itself. Considering the above and the past history along with the background of the complainant Ketan Tirodkar (Witness 5), his testimony requires close and cautious scrutiny., Vide paragraph 15 of the examination‑in‑chief, the complainant Ketan Tirodkar (Witness 5) has come with the case that Milind Gaikwad (Witness 4) introduced him to the accused by saying that the accused is brother‑in‑law of Hon'ble Mr Justice B (Hon'ble Mr Justice of the Delhi High Court). However, Milind Gaikwad (Witness 4) has nowhere testified to that effect. It is the case of the complainant that Milind Gaikwad introduced the accused with him in the hostel of the Indian Institute of Public Administration, New Delhi in the month of May 2006. It has also come in the evidence of the complainant that for the first and last time he met the accused in the room of that hostel in May 2006. Milind Gaikwad (Witness 4) however testified that his office is situated at Pune and that the first meeting between the complainant and the accused was in his office in the year 2005‑2006. Investigating Officer K. Babu (Witness 9) also testified that much prior to May 2006 the complainant and the accused were friends. It has also come in the evidence of the complainant that in the year 2006 Jayesh Shirsath (Witness 7) was his good friend and used to visit his house. It becomes material in the light of the fact that, as per the case of the prosecution, the complainant had handed over cassettes to Jayesh Shirsath. Jayesh Shirsath (Witness 7) has however testified that he was never having friendly relations with the complainant and he never had been to the house of the complainant. It has also come in the evidence of the complainant that Investigating Officer K. Babu (Witness 9) visited him in jail for voice verification of the accused and Mr K. Babu played the cassettes in his presence and he identified the voice of himself, of the accused and Milind Gaikwad. However, the investigating officer has nowhere testified about visiting the jail for the purpose of playing the cassettes in the presence of the complainant for voice verification. It has come in paragraph 2 of the examination‑in‑chief of the complainant that Investigating Officer Mr K. Babu disclosed to him that he would be approaching the Supreme Court of India against the oral refusal of seeking permission to record the statement of Hon'ble Mr Justice A (Hon'ble Mr Justice of the Bombay High Court). Investigating Officer Mr K. Babu has however testified that he has not informed the complainant that he intended to approach the Supreme Court of India. The complainant has further testified that during his stay in Dubai he did not convert to any other religion. Milind Gaikwad (Witness 4) has in his evidence made it clear that on the say of Daya Nayak, the complainant went to Dubai and converted to Islam. From the above aspects, it is crystal clear that the complainant Ketan Tirodkar (Witness 5) is not telling the real truth before the Bombay High Court., The close analysis of the evidence of complainant Ketan Tirodkar (Witness 5) makes it clear that there is nothing therein to show the alleged representation by the accused to the effect that he is brother‑in‑law of Hon'ble Mr Justice B (Hon'ble Mr Justice of the Delhi High Court) by way of personation. All the while the complainant has testified that Milind Gaikwad (Witness 4) introduced the accused to him by saying that the accused is brother‑in‑law of Hon'ble Mr Justice B (Hon'ble Mr Justice of the Delhi High Court). However, Milind Gaikwad (Witness 4) has nowhere testified to that effect., The complainant Ketan Tirodkar (Witness 5) has testified that he used to draft petitions and applications for litigants in the Hon'ble High Court and earned his livelihood thereby. It is thus clear that the complainant is knowledgeable about drafting. The written complaint (Exhibit 86) is not cryptic; on the contrary, it is detailed and runs eleven pages. On close analysis of the written complaint vis‑à‑vis the evidence of the complainant it reveals that the evidence of the complainant is not in accordance with his written complaint. In this reference, there is nothing in the written complaint that the accused said “but it is gone, you go to the High Court, it will be done” and “I will get temporary relief”. When the complainant asked the accused about the meaning of temporary relief, the accused made it clear that the complainant had to pray for a period of about two weeks and it would be granted to him. There is also nothing in the complaint to the effect that the accused informed the complainant that he had talked to Hon'ble Mr Justice A (Hon'ble Mr Justice of the Bombay High Court) and the complainant would get temporary relief and that the complainant had to pay Rs 30 lakh. The written complaint was filed on 10‑05‑2006. The complainant in paragraph 73 has stated that till 10‑05‑2006 he had not taken the name of Hon'ble Mr Justice A regarding the demand of Rs 30 lakh at his instance. The close analysis of the written complaint also depicts the same., The complainant Ketan Tirodkar (Witness 5) has testified that he asked the accused for a favour to look for an appropriate counsel who was appearing before Hon'ble Mr Justice A (Hon'ble Mr Justice of the Bombay High Court) on a charity basis. However, in cross‑examination the complainant admits that after stopping his salary he started drafting petitions and applications for litigants, his contention was upheld by the Full Bench of the Hon'ble High Court by order dated 22‑12‑2005 in the Maharashtra Control of Organised Crime case, he was regularly consulting with his advocates on a friendly basis in respect of Criminal Application No. 6572/2006, he was fully prepared and ready to make submissions before the Hon'ble High Court and in Special Leave Petition proceedings Advocate Bhatti offered help to him on a charity basis in the Special Leave Petition and she was appearing at a few hearings before the Supreme Court of India. It has also come in the evidence of Milind Gaikwad (Witness 4) that the complainant had arranged one advocate for him and he is aware that the complainant, being from Bombay, knows several advocates who charge fees and some work on a charity basis. If this is so, then asking for an appropriate counsel on a charity basis from the accused does not appear probable or acceptable., It has come in the evidence of complainant Ketan Tirodkar (Witness 5) that he borrowed the recording machine from his friend and attached it to the phone for recording calls. The written complaint is silent on such aspect and there is nothing therein to show such borrowing of a recording machine by the complainant from his friend. On the other hand, perusal of the written complaint shows that the complainant attached a recording equipment to his MTNL landline. Thus, again the evidence of the complainant is not found in conformity with his written complaint. Even we do not know the name and details of the friend from whom he borrowed the recording machine. During cross‑examination the complainant showed ignorance and stated that he does not remember whether the cassette recorder used in this case was a normal or a micro cassette recorder., In the written complaint it is mentioned by the complainant that he requested the accused to call on his MTNL landline after some time; he then attached a recording equipment to his MTNL landline and recorded the conversation between himself and the accused. According to the complainant his mother asked the accused to call on the MTNL number as the complainant had attached the recording machine to that number. On 8 May late evening the complainant received a call again from the accused on his MTNL landline, his MTNL number being 2435788. In cross‑examination, paragraph 88, the complainant further confirmed that he had asked the accused to call him on his MTNL landline. Thus, it is crystal clear that the complainant has an MTNL landline bearing number 2435788 at his residence and, as per the written complaint, the recording machine was attached to that landline. However, there is no evidence either of the complainant or any other witness to show that the complainant has an MTNL landline at his residence. On the contrary, the complainant has testified in respect of attaching the recording machine to a BSNL landline, which is contrary to the contents of the written complaint. Thus, there is a serious inconsistency in the case of the prosecution. Moreover, the evidence of the complainant is silent with respect to the mobile numbers of the accused alleged to have been used for making calls to the complainant., It has also come in the evidence of complainant Ketan Tirodkar (Witness 5) that the voice recording of Milind Gaikwad (Witness 4) was also done in the month of May 2006. He recorded the conversation of Milind Gaikwad and the purpose of recording was to collect evidence. Milind Gaikwad (Witness 4) has testified that after returning from Delhi there was no meeting or talks with Mr Tirodkar at any time and in the year 2007 he got a phone call from Mr Tirodkar who disclosed that the accused was going to help him to come out of the Maharashtra Control of Organised Crime case and, for that purpose, the accused had demanded an amount of Rs 30 lakh. It is necessary to note that the written complaint was filed on 10‑05‑2006 and, as per the prosecution, after recording the entire conversation the written complaint was filed. It is therefore clear that the complainant is further not telling the real truth before the Bombay High Court in respect of the alleged recording of conversation between himself and Milind Gaikwad in May 2006., It has come in the cross‑examination of the complainant Ketan Tirodkar (Witness 5) that he handed over one set of copies of the cassette to Jayesh Shirsath (Witness 7) and he does not remember when, where and by whom the copies of the said conversation were prepared. This statement runs contrary to the prosecution and raises doubt on the prosecution’s case that after recording the alleged conversation the complainant handed over the original cassettes to Jayesh Shirsath and later the original cassettes were recovered from Jayesh Shirsath (Witness 7) vide Exhibit 97 on 19‑09‑2006., It is the case of the prosecution that a meeting took place between complainant Ketan Tirodkar (Witness 5), the accused and Milind Gaikwad (Witness 4) in the hostel of the Indian Institute of Public Administration, New Delhi, wherein the accused made an alleged representation by introducing himself as brother‑in‑law of Hon'ble Mr Justice B (Hon'ble Mr Justice of the Delhi High Court). On the other hand, the complainant has testified that in the said meeting Milind Gaikwad introduced the accused by saying that he is brother‑in‑law of Hon'ble Mr Justice A (Hon'ble Mr Justice of the Bombay High Court). In such premises, the evidence of Milind Gaikwad assumes importance. It is further the case of the prosecution that after the alleged representation by the accused the complainant requested the accused to look for an appropriate counsel on a charity basis and the subsequent development regarding the alleged demand took place on a telephonic conversation which was alleged to have been recorded by the complainant. In the backdrop of the above, it can be gathered that the complainant and Milind Gaikwad are the only witnesses on the point of alleged representation by the accused and the complainant is the only witness who alleged demand of money and recording of conversation. In this reference, let me consider the evidence of Milind Gaikwad (Witness 4)., Milind Gaikwad (Witness 4) deposed that there was a meeting between complainant Ketan Tirodkar (Witness 5) and the accused in his office for the first time in the year 2005‑2006. In the year 2006, during the summer season he had been to New Delhi and stayed in Maharashtra Sadan. The complainant also had been to New Delhi in connection with a case pending in the Supreme Court of India. The complainant invited himself and the accused to a hostel meant for journalists. He, along with the accused, went there to meet the complainant. There was a discussion between the accused and the complainant in respect of the Maharashtra Control of Organised Crime case against the complainant. As he fell asleep, he could not hear the conversation between them. Even when he got up, he was not informed about their discussion. Then the accused dropped him at Maharashtra Sadan, New Delhi. Thereafter, in the year 2007, he got a phone call from the complainant who disclosed that the accused was going to help him to come out of the Maharashtra Control of Organised Crime case and the accused had demanded an amount of Rs 30 lakh. When his statement was recorded by CBI officer Mr K. Babu (Witness 9), the conversation recorded on the micro cassette was played before him and he heard it. The last digits of two mobile numbers of the accused are 88137 and 88126. Further, this witness identified the voice of himself and the complainant when CD Article‑4/1 was played before the Bombay High Court., On the analysis of the entire evidence of Milind Gaikwad (Witness 4), it merely shows discussion between the complainant and the accused in respect of the Maharashtra Control of Organised Crime case. He is not aware of the actual discussion as, according to him, he was sleeping. There is nothing in the evidence to show that, as claimed by the complainant, Milind Gaikwad introduced the accused to the complainant by saying that the accused is the brother‑in‑law of Hon'ble Mr Justice B (Hon'ble Mr Justice of the Delhi High Court). The evidence of Milind Gaikwad also nowhere shows that in the said meeting the accused ever made a representation to the complainant that he is brother‑in‑law of Hon'ble Mr Justice B. He admits in cross‑examination that he is not aware of anything regarding talks held between the complainant and the accused in Delhi and has no concern about it. He further admits that, as he had lost trust in the complainant, there was no propriety on his part to advise him in any manner., The alleged incident is of the month of May 2006 and the alleged conversation between the complainant and the accused as well as between the complainant and Milind Gaikwad (Witness 4) was also recorded in May 2006. However, according to this witness, after returning from Delhi he never received a phone call from the complainant. In the year 2007 the complainant made a phone call to him and informed about the demand of the accused. The evidence of this witness, as reflected from paragraphs 13 and 14 of the examination‑in‑chief, shows that a micro cassette was played before him and the transcript was also prepared on the basis of the conversation heard from the micro cassette with the help of a cassette recorder. It is the case of the prosecution that the cassette was seized from Jayesh Shirsath (Witness 7) vide Production‑Cum‑Seizure Memo (Exhibit 97) and later forwarded to the Centre for Forensic Science Laboratories, New Delhi for spectrographic examination. Surprisingly, the evidence of Dr Rajinder Singh (Witness 10, retired director of CFSL, New Delhi) shows that on opening the parcel he found a normal audio cassette stated to have the questioned voice of the accused. Thus, it is clear that the evidence of Milind Gaikwad (Witness 4) neither supports nor corroborates the evidence of the complainant Ketan Tirodkar (Witness 5)., As observed above, the complainant Ketan Tirodkar (Witness 5) is the only witness who alleged demand of money and recording of conversation. Now let me evaluate the evidence and material on the point of seizure of audio cassettes, telephone‑cum‑recording machine, transcription of conversation, collection of voice specimen of the accused and forensic voice examination report., In this reference, it has come in the evidence of Jayesh Shirsath (Witness 7) that in the year 2006 he was working with the Daily Marathi newspaper Lokmat as a journalist. During 2006 he was approached by a CBI officer in respect of a tape‑record cassette. Prior to that, he met the complainant Ketan Tirodkar (Witness 5). The complainant disclosed to him the cassette and that the conversation therein was in respect of demand of money by one judge from Delhi and another from Bombay through a middle man. There were two such cassettes. He heard the conversation from both cassettes but was not convinced to prepare any news article on that basis. The CBI officer approached him for those cassettes and he handed over the two cassettes to the CBI officer. The cassettes were sealed by the CBI officer and he signed the proceeding. He produced the Production‑Cum‑Seizure Memo (Exhibit 97) dated 19‑09‑2006. Thereafter, in 2008 he was called by a CBI officer to the CBI office where two persons, Mr Yadav and Mr Gupta, were present. The CBI officer removed the cassette from the sealed envelope and played it. The transcripts were prepared and verified. The panchnama proceeding was drawn up. He has produced the Transcription Panchnama dated 03‑03‑2008 along with Transcripts Annexure‑A and B (Exhibit 78). He further identified the voice of the complainant and of Milind Gaikwad when CD Article‑4/1 was played before the Bombay High Court., Ravinder Gupta (Witness 6) and Chotelal Yadav (Witness 11) are the panch witnesses on the Transcription Panchnama with transcripts (Exhibit 78) as well as on the Voice Specimen Panchnama (Exhibit 95). Ravinder Gupta testified that on 03‑03‑2008 he, along with his colleague Chotelal Yadav, went to the CBI office situated at Tanna House, near Regal Theatre, Mumbai between 10.00 a.m. and 10.30 a.m. and remained there till 3.00 p.m. Two CBI officers and one journalist were present. Two sealed cassettes were produced, their seals were broken, and the cassettes were inserted in the tape recorder. The conversation was heard and a panchnama was prepared. Thereafter, he was called on 04‑03‑2008 at the CBI office, Tanna House, near Regal Theatre, Mumbai to record a voice specimen of Mr Khan. The voice sample was recorded on a cassette and its panchnama was prepared. He produced the Transcription Panchnama with transcripts (Exhibit 78) and the Voice Specimen Panchnama with Annexure‑A (Exhibit 95)., Chotelal Yadav (Witness 11) testified that on 03‑03‑2008 he, along with Ravinder Gupta, went to the CBI office situated in the MTNL building, Fountain, Mumbai at about 3.00 p.m. The sealed cassettes were opened and the black cassette was played and there was a conversation between the accused and the complainant. Jayesh Shirsath (Witness 7) identified the voice of the complainant. The transcription was prepared and the panchnama was drawn up. Both cassettes were kept in a brown envelope and sealed. The proceeding was completed at about 7.30 p.m. On 04‑03‑2008 they again visited the CBI office, MTNL, Fountain, Mumbai and a voice sample of the accused was recorded on a cassette which was again sealed in a brown envelope. He produced both panchnamas., Investigating Officer K. Babu (Witness 9) has deposed that after registration of FIR (Exhibit 87) its investigation was assigned to him. The complainant Ketan Tirodkar (Witness 5) was in judicial custody. He visited and recorded the statement of the complainant inside the jail. The complainant informed that the cassette of the telephonic recording was given to Jayesh Shirsath (Witness 7) and its copy is with his mother. The cassettes have been seized from Jayesh Shirsath (Witness 7). The cassette and recording instrument as well as copies of orders have been recovered under a recovery memo from the mother of the complainant. The transcripts on the basis of the conversation available in the cassette recovered from Jayesh Shirsath (Witness 7) and its panchnama have been prepared. The accused was arrested and his voice sample was collected under panchnama. During investigation it was revealed that no exchange of money had taken place and there was no connection whatsoever about the judges as mentioned in the complaint. The cassettes were forwarded to the Centre for Forensic Science Laboratories for voice examination and were received back to the CBI office. However, the cassettes could not be submitted before the Court as they were not traceable and were misplaced while shifting the office., The striking feature of the case in hand, as testified by Investigating Officer K. Babu (Witness 9), is that the cassettes which the complainant handed over to Jayesh Shirsath (Witness 7) have not been produced on the record of this Court. During the course of examination‑in‑chief Dr Rajinder Singh (Witness 10, retired director of CFSL, New Delhi) has deposed that at the time of voice examination of exhibits i.e. normal audio cassette Q‑1 stated to have the questioned voice of the accused and micro cassette S‑1 stated to have the specimen voice of the accused, they were transferred in the system of CFSL and it will have to be searched in the office if a recording of voice is available. Considering such evidence and the fact that the cassettes have not been produced on the record, a direction was given by the Court to the witness to search the system, if any, and to produce its copies. Accordingly, according to the prosecution, the recordings were found available in the system of CFSL, New Delhi and the copies thereof have been produced on a CD along with a certificate vide Article‑4/1., In this backdrop, it has come in the evidence of Dr Rajinder Singh (Witness 10) that on 25‑04‑2008 the CFSL received two sealed parcels from CBI Mumbai containing normal audio cassette Q‑1 and micro audio cassette S‑1. He examined the same by auditory and voice spectrographic technique and the questioned voice tallies with the specimen voice. He has produced the Forensic Voice Examination Report/Spectrographic Report (Exhibit 106). As per directions of the Court, he went to CFSL and located the true copies of the conversation preserved in the system. With the help of an expert from CFSL, he prepared copies thereof on a CD and verified its contents and found that the contents of the recorded CD are as per the transcription. He produced the CD along with Certificate Article‑4/1., It is material to note that the prosecution has come with the case that the complainant Ketan Tirodkar (Witness 5) recorded the conversation regarding the alleged demand of money in the name of judges and handed over the cassettes to Jayesh Shirsath (Witness 7). Jayesh Shirsath has also testified about receiving two cassettes from the complainant. However, the complainant in the evidence has stated that he handed over one set of copies of the cassette to Jayesh Shirsath as he wanted to preserve the backup of the conversation. As such, the handing over of the original cassettes of the alleged recording by the complainant to Jayesh Shirsath itself is in doubt. It is further the case of the prosecution that the transcripts (Exhibit 78) of the conversation have been prepared on the basis of the recording of conversation in the audio cassettes recovered from Jayesh Shirsath (Witness 7) vide Exhibit 97. It is thus clear that the transcripts have not been prepared on the basis of the original cassettes alleged to have been handed over by the complainant to Jayesh Shirsath but from the copy of cassettes and even the said alleged copy of cassettes recovered from Jayesh Shirsath (Witness 7) were forwarded to CFSL for voice examination., As per the prosecution, the cassettes handed over by the complainant to Jayesh Shirsath (Witness 7) have been recovered from Jayesh Shirsath (Witness 7) vide Production‑Cum‑Seizure Memo (Exhibit 97) and after preparing transcripts from those cassettes, the cassette containing the questioned voice was forwarded to CFSL and the further voice examination was done on that basis. Dr Rajinder Singh (Witness 10) has testified that he received a normal audio cassette Q‑1 stated to have the questioned voice along with a cassette of sample voice S‑1. Milind Gaikwad (Witness 4) in paragraphs 13 and 14 of his examination‑in‑chief has firmly testified that the conversation recorded on the micro cassette was played before him and he heard it. He also testified that the transcript Annexure‑A was prepared as per the conversation heard from the micro cassette with the help of a cassette recorder. The normal cassette and the micro cassette are two different things and not similar. If the cassette recovered from Jayesh Shirsath (Witness 7) and forwarded to CFSL as Q‑1 is a normal cassette then a question arises as to how Milind Gaikwad heard the conversation in the micro cassette and how the transcript was prepared on the basis of the conversation heard from the micro cassette. Surprisingly, when the cassette recorder Article‑3/1 is shown to Investigating Officer K. Babu (Witness 9) he testified that the micro cassette is used for recording conversation with the said telephone recording instrument. Thus, again a great doubt arises on the entire story of the prosecution. It has also come in the evidence of Investigating Officer K. Babu (Witness 9) that he cannot say if the recording in the cassette was previously done or it was at the time of the incident in question. Such a statement becomes important in the light of the fact that the complainant, in paragraph 37 of his cross‑examination, admits that while working as a crime reporter he came to know about the modus operandi of the Mumbai underworld and also the functioning of the police department, and he was acquainted with the recording of conversation since his childhood., Jayesh Shirsath (Witness 7) also admits in cross‑examination that he does not know whether the cassettes of conversation handed over to him by the complainant were original or were tampered. The cassettes were recovered from Jayesh Shirsath (Witness 7) vide Production‑Cum‑Seizure Memo (Exhibit 97) on 19‑09‑2006. There is no question of handing over a seal to the person from whom any article is recovered. The seal must always be in the official custody of the concerned officer. In this case, Jayesh Shirsath is not an official person of the CBI.
id_409	3	Exhibit 97 records that the seal, after use, was handed over to Shri Jayesh Shirsath with direction to keep it and produce it when required by the Special Judge, Central Bureau of Investigation Court or the Central Bureau of Investigation on any subsequent date. The entire evidence of Witness Jayesh Shirsath (Witness 7) is silent about receiving the seal from the Central Bureau of Investigation on 19 September 2006 and thereafter handing it over to the Central Bureau of Investigation on any subsequent date. The fate of the seal is unknown., Close analysis of the evidence of the panel witnesses Ravinder Gupta (Witness 6) and Chotelal Yadav (Witness 11) shows that their testimonies are contradictory on material aspects. Ravinder Gupta states that on 3 March 2008 he and Chotelal Yadav went to the Central Bureau of Investigation office at Tanna House, near Regal Theatre, Mumbai, between 10:00 a.m. and 10:30 a.m., and remained there until 3:00 p.m., during which the hearing of the conversation and preparation of transcripts and the panchnama took place. Chotelal Yadav, however, testifies that on 3 March 2008 he and Ravinder Gupta arrived at the Central Bureau of Investigation office situated in the MTNL building, Fountain, Mumbai, at about 3:00 p.m. and stayed there until 7:00 p.m. or 7:30 p.m. He further states that he reached the office at about 3:00 p.m. and is unaware of any prior events concerning the cassette. The evidence of Investigating Officer K. Babu (Witness 9) does not mention the time or place of preparation of the panchnama., The Transcription Panchnama (Exhibit 78, collated) is a typed document in English. Ravinder Gupta states that the Central Bureau of Investigation officer wrote the panchnama in his own handwriting. He also admits in cross‑examination that he had not personally read the contents of the panchnama before signing it, as noted in the judgment of the Central Bureau of Investigation Special Case No. 35/2008. Chotelal Yadav did not support the prosecution on certain material aspects; consequently, with the permission of the Special Judge, Central Bureau of Investigation Court, cross‑examination questions were put to him by the Learned Prosecutor. According to the prosecution, the voice specimen of the accused was collected on 4 March 2008. However, Chotelal Yadav testifies that on 4 March 2008, when he was at the Central Bureau of Investigation office, only two Central Bureau of Investigation officers, one constable, and Ravinder Gupta were present, and no one else was present for the proceeding. This raises doubts about the reliability of both witnesses and about the preparation of transcripts and collection of the voice specimen., Dr. Rajinder Singh, retired director of the Centre for Forensic Science Laboratories, New Delhi, testified that on 25 April 2008 he received two sealed parcels from the Central Bureau of Investigation, Mumbai, identified as Exhibit C and Exhibit D. He relabelled these parcels as Q‑1 and S‑1. Upon opening parcel Q‑1, he found a standard audio cassette containing the questioned voice of the accused, which he marked as Exhibit Q‑1 (A). Upon opening parcel S‑1, he found a micro‑cassette containing the specimen voice of the accused, which he marked as Exhibit S‑1 (A). He examined both cassettes using auditory and voice‑spectrographic techniques and found that the questioned voice matched the specimen voice. He prepared a Forensic Voice Examination Report/Spectrographic Report bearing No. CFSL‑2008/P/S0321 dated 28 July 2008, signed by him, and produced a copy of the report as Exhibit 106. He further testified that at the time of voice examination, the exhibits were simultaneously transferred into the system, as noted in the judgment of the Central Bureau of Investigation Special Case No. 35/2008., The prosecution states that complainant Ketan Tirodkar (Witness 5) handed over the cassette recordings of the conversation to Jayesh Shirsath (Witness 7), which were later recovered from Jayesh Shirsath through Exhibit 97 on 19 September 2006. The record shows that the cassettes alleged to have been seized from Jayesh Shirsath have not been produced and were misplaced during the shifting of the Central Bureau of Investigation office. In view of this and Dr. Rajinder Singh’s testimony that the exhibits were transferred into the Centre for Forensic Science Laboratories system at the time of voice examination, Dr. Rajinder Singh was directed by the Special Judge, Central Bureau of Investigation Court on 13 January 2021 to search the system for any available record and to produce copies. Consequently, the prosecution produced a CD together with Certificate Article‑4/1, as per application Exhibit 108 dated 9 March 2021., Dr. Rajinder Singh further testified that, following the direction of the Special Judge, Central Bureau of Investigation Court, he searched the system for the authentic copies of the preserved records, namely the specimen and questioned voices. With the assistance of an expert, he prepared CD copies of the voice recordings and verified that the contents of the CD conformed with the provided transcription., It is noted from the evidence of complainant Ketan Tirodkar (Witness 5) that he handed over one set of cassette copies to Jayesh Shirsath (Witness 7). The cassettes were alleged to have been recovered from Jayesh Shirsath and, according to the prosecution, forwarded to the Centre for Forensic Science Laboratories. However, the original cassette of the alleged conversation has neither been recovered nor forwarded to the Centre for Forensic Science Laboratories., The last two lines on page 2 of the Transcription Panchnama (Exhibit 78) indicate that the black cassette, together with its original wrapper, was placed inside a fresh brown envelope, signed by the panel members, and then sealed with the Central Bureau of Investigation seal after being wrapped in a piece of cloth marked as Exhibit C and signed by the panel members. A facsimile of the seal used for sealing is shown on page 3 of the panchnama. Chotelal Yadav (Witness 11) also stated that the cassettes were wrapped and kept in a brown envelope. However, during cross‑examination, Dr. Rajinder Singh (Witness 10) testified that he found the normal cassette Q‑1 in an orange‑coloured envelope. The Forensic Voice Examination Report (Exhibit 106) references the orange‑coloured paper envelope with seven seals., Dr. Rajinder Singh (Witness 10) selected six sentences for spectrography and listed them in the report (Exhibit 106) under the headings Exhibit Q‑1 and Exhibit S‑1. However, in cross‑examination he admitted that only four of those sentences appear in the transcription; the sentences ‘wo kab tak arrange ho jayega’ and ‘abhi aap rahene dijiye’ are absent. Jayesh Shirsath (Witness 7), in paragraph 42 of his cross‑examination, admitted that portion mark A of Annexure‑A of Exhibit 78 (Transcription Panchnama) does not appear in the conversations on CD Article‑4/1. He further stated that while preparing Annexure‑A of Exhibit 78 he had heard the cassettes and the portion marked A was present, but the CD Article‑4/1, which he played before the Special Judge, did not contain that portion, indicating a discrepancy between the two recordings., It is claimed by Dr. Rajinder Singh (Witness 10) that at the time of voice examination the exhibits were transferred into the system, and consequently he was directed by the Special Judge, Central Bureau of Investigation Court to search the system for any record and produce copies. Dr. Rajinder Singh testified that the audio cassettes Exhibit Q‑1 and Exhibit S‑1 were copied onto separate compact discs. He admitted that for the 2008 analysis he prepared two CDs from the cassettes, and that the original cassettes were not played on the computer; instead, data from the original cassettes were copied onto the two CDs, on which the spectrography work was carried out. He acknowledged that the possibility of damage to those two CDs cannot be ruled out. Consequently, the cassettes Exhibit Q‑1 and Exhibit S‑1 received by the Centre for Forensic Science Laboratories were not directly played on its system; the analysis was performed on data copied onto the CDs. Therefore, there was no transfer of data from the cassettes to the Centre’s system, nor any search of the conversation data on the system, and no CD Article‑4/1 was produced from such a search., Dr. Rajinder Singh (Witness 10) testified that after examining the voice he prepared a report bearing No. CFSL‑2008/P/S‑0321 dated 28 July 2008, signed by him. However, the record shows that the prosecution has not produced the original Forensic Voice Examination Report. On 5 February 2019, the prosecution filed application Exhibit 76 to deposit an attested copy of the Forensic Voice Examination Report dated 28 July 2008, and, pursuant to the order of the Special Judge, Central Bureau of Investigation Court, the attested copy was taken on record as Exhibit 106 bearing No. CFSL‑2008/P‑0321. The two reports are not identical; therefore, the attested copy of Exhibit 106 cannot be considered a copy of the original report No. CFSL‑2008/P/S‑0321., The foregoing reasons create substantial doubt regarding the genuineness of the alleged conversation, its transcription, the collection of the voice specimen, the voice examination, and the forensic voice examination report, as well as the credibility of complainant Ketan Tirodkar (Witness 5), Jayesh Shirsath (Witness 7), Ravinder Gupta (Witness 6), Chotelal Yadav (Witness 11), K. Babu (Witness 9), and Dr. Rajinder Singh (Witness 10)., Rajeshkumar Sadhuram (Witness 1) testified regarding the stay of complainant Ketan Tirodkar (Witness 5) in the hostel of the Indian Institute of Public Administration, New Delhi, and produced an extract of the Visitors Register (Exhibit 55). N. K. Choudhari (Witness 3), Divisional Engineer, BSNL, Thane, stated that telephone number 2435788 was in the name of Mrs. Rajni Kamlakar Tirodkar and produced documents (Exhibit 71, collated). However, the written complaint (Exhibit 86) indicates that the telephone recording instrument was attached to an MTNL landline, not a BSNL landline. Dattatrya Lahu Sawant (Witness 8), Nodal Officer, Tata Tele Services, Navi Mumbai, produced call detail records of Tata phone number 251‑5615536 together with a certificate. The prosecution does not rely on this Tata phone for the alleged recording of the conversation., Gulshan Arora (Witness 2), then Nodal Officer at Hutchison Essar Mobile Services Ltd., produced call detail records for two mobile numbers, 9811788126 and 9811788137 (Exhibit 69, collated) together with Certificate Exhibit 69‑A. He presented a graphical narration of calls between these mobile numbers and also between telephone numbers 02512435788 and 02515615536. The prosecution alleges that the accused used the two mobile numbers to call complainant Ketan Tirodkar (Witness 5), and that these calls were recorded. However, neither of the two mobile phones has been seized nor subjected to forensic analysis. Gulshan Arora testified that the two mobile numbers were originally registered in the names of Mr. Shankar Roy and Mr. Sardare Singh, and were later transferred to Mr. Mohmad Amjad, House No. 555, Lane No. 7, Old Mustafabad, near Noor Masjid, Delhi‑110094. No witness, including the complainant, has testified that the accused used these mobile numbers to place the alleged calls to the complainant. Consequently, there is no evidence linking the accused to those mobile numbers., The evidence of complainant Ketan Tirodkar (Witness 5) shows that he filed a fresh bail application, which Honourable Mr. Justice A of the Bombay High Court accepted. In the last paragraph of the application, he mentioned a demand for a bribe in his name. However, the complainant has not produced a copy of the bail application to the Investigating Officer, nor was it collected during the investigation. No investigation was conducted regarding the friend of the complainant from whom the complainant alleged borrowing a telephone recording machine. According to the complainant, while in judicial custody he handed a letter, addressed to his mother, to the Investigating Officer for handing over a copy of the cassette. No such letter has been produced on record., The prosecution claims that one cassette, the telephone recording instrument, and copies of the order of the Honourable High Court, Bombay, were recovered from the mother of the complainant. The written complaint (Exhibit 86) states that the complainant received a call from Faraz Khan on a Sunday afternoon, after which his mother called his MTNL number around 6 p.m., attaching the recording machine to the MTNL line as requested. The prosecution has not produced evidence from the complainant’s mother, and the reasons for not examining this material witness are unknown. The complainant also testified that he discussed the incident with his parents, but neither his father nor his mother has been examined by the prosecution. According to Investigating Officer K. Babu (Witness 9), he is unaware whether the cassette recovered from the complainant’s mother is original or a copy, and he cannot comment on the originality of the cassettes seized from Jayesh Shirsath (Witness 7). He also admits that he did not inquire with the complainant, Jayesh Shirsath, Milind Gaikwad (Witness 4), or the complainant’s mother regarding copies of the cassettes, nor can he say whether the recording on the cassette was made earlier or at the time of the incident. He further admits that he did not mention in the charge‑sheet when the cassettes were forwarded to the Centre for Forensic Science Laboratories, does not recall this, and has not recorded statements of Dr. Chitnis and Soni, whose names appeared in the complainant’s evidence. He also admits that the mobile phones alleged to be used by the accused have not been seized. These lapses in the investigation go to the root of the matter., The written complaint (Exhibit 86) states that the complainant became alert and decided to trap the alleged deception of Faraz Khan. At that time the complainant was confident that the case was being heard on its merits and that time was granted first due to the absence of a specific court order and later after he produced a university hall ticket and pleaded about his engagement. Consequently, there is no question of alleged inducement of a public servant by corrupt or illegal means or by personal influence. A close analysis of the complainant’s evidence shows no representation by the accused that he was the brother‑in‑law of Honourable Mr. Justice B of the Delhi High Court by way of personation. Therefore, the prosecution has failed to prove the essential ingredients of Section 416 punishable under Section 419 read with Section 511 of the Indian Penal Code and Sections 8 and 9 of the Prevention of Corruption Act., Section 134 of the Indian Evidence Act provides that no specific number of witnesses is required to prove a fact and a conviction may be sustained on the evidence of a solitary witness if it inspires confidence of the Court. However, in the present case I must seek corroboration before relying on the evidence of complainant Ketan Tirodkar (Witness 5). No corroboration exists for his testimony, and the material produced by the prosecution does not support his statements. Accordingly, I am not inclined to accept the uncorroborated version of his evidence, as it does not inspire confidence., After reviewing the entire material and evidence, it is clear that the prosecution’s witnesses lack the necessary assurance required in a criminal trial. There is no corroboration for the testimony of complainant Ketan Tirodkar (Witness 5). I am not inclined to accept his uncorroborated version as it does not inspire confidence. In Yusufalli, it was observed that magnetic tape recordings can be erased and reused, so such evidence must be approached with caution. The Court must be satisfied beyond reasonable doubt that the recording has not been tampered with. In the present case, there is considerable doubt about the genuineness of the alleged conversation, its transcription, the collection of the voice specimen, the voice examination, and the forensic voice examination report, as well as the credibility of all witnesses. The prosecution has failed to prove the essential ingredients of Section 416 punishable under Section 419 read with Section 511 of the Indian Penal Code and Sections 8 and 9 of the Prevention of Corruption Act. The case is shrouded in doubt, and the benefit of doubt must therefore go in favour of the accused., Accordingly, I answer points 1 to 3 in the negative. In view of the foregoing discussion, the accused deserve acquittal on the benefit of doubt. I pass the following order:\n\n1. Accused Faraz Sultan Khan is acquitted of the offence under Section 416 punishable under Section 419 read with Section 511 of the Indian Penal Code and Sections 8 and 9 of the Prevention of Corruption Act, 1988, vide Section 248(1) of the Code of Criminal Procedure.\n\n2. The bail bonds of the accused stand cancelled.\n\n3. The muddemal property, namely the cotton cloth (Article‑3), the yellow paper envelope (Article‑4), and the CD with its plastic container (Article‑4/1), shall be destroyed after the appeal period expires.\n\n4. The muddemal property, the telephone‑cum‑recording machine (Article‑3/1) of the Fonotel model, shall be returned to Smt. Rajni Kamlakar Tirodkar, mother of complainant Ketan Tirodkar, after the appeal period expires.\n\n5. The accused shall submit fresh bail bonds to the tune of Rs 15,000 as per the provisions of Section 437‑A of the Code of Criminal Procedure.\n\n[Dictated and declared in open Court.] Date: 3 November 2023. Special Judge, Central Bureau of Investigation Court, Court Room No. 53, Greater Bombay. Certified to be a true and correct copy of the original signed order. (Pushpa Rajan Vengurlekar).
id_41	0	Through: Ms. Shwetasree Majumder, Ms. Diva Arora Menon, Ms. Devyani Nath, Ms. Aiswarya Debadarshini and Mr. Shiv Mehrotra, Advocates. Versus: None. Interim Application 1233/2024 (seeking exemption from filing originals, translation of documents in vernacular language, clear copies and documents with proper margins) Exemption is granted, subject to all just exceptions. The Plaintiff shall file legible and clearer copies of exempted documents, compliant with practice rules, before the next date of hearing. Accordingly, the applications are disposed of., Interim Application 1232/2024 (seeking leave to file additional documents) This is an application seeking leave to file additional documents under the Commercial Courts Act, 2015. The Plaintiff, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the said Act. Accordingly, the application stands disposed of., Interim Application 1231/2024 (exemption from pre‑institution mediation) As the present suit contemplates urgent interim relief, in light of the judgment of the Supreme Court in Yamini Manohar v. T.K.D. Krithi, exemption from attempting pre‑institution mediation is granted. Disposed of., Interim Application 1234/2024 (seeking extension for filing the court fee receipt and undertaking to file the same at the earliest) Ms. Shwetasree Majumder, counsel for the Plaintiff, states that court fee has been applied for, and undertakes to file the same as and when the court fee certificate and stamps are issued. In view of the above, the application is disposed of with a direction that the Plaintiff should furnish the deficient court fees within a period of two weeks from today., Interim Application 1235/2024 (seeking exemption from advance service to the Defendants) The Plaintiff alleges that the Defendants are perpetrating fraud on the general public by creating a false association with the Plaintiff’s well‑known KHADI mark. Considering the nature of controversy involved in the present suit as well as the peculiar facts and circumstances of the case, exemption from effecting advance service on Defendants is allowed. Application is disposed of., Let the plaint be registered as a suit. Upon filing of process fee, issue summons to the Defendants by all permissible modes. Summons shall state that the written statement(s) shall be filed by the Defendants within thirty days from the date of receipt of summons. Along with the written statement(s), the Defendants shall also file affidavit(s) of admission/denial of the documents of the Plaintiff, without which the written statement(s) shall not be taken on record. Liberty is given to the Plaintiff to file replication(s) within fifteen days of the receipt of the written statement(s). Along with the replication(s), if any, filed by the Plaintiff, affidavit(s) of admission/denial of documents of the Defendants shall be filed by the Plaintiff, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines. List before the Joint Registrar for marking of exhibits on 20 March 2024. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs. List before Delhi High Court for framing of issues thereafter., Interim Application 1230/2024 (seeking an interim injunction) Ms. Majumder presented the Plaintiff’s case as follows: The Plaintiff, Khadi and Village Industries Commission, a statutory body established under the Khadi and Village Industries Commission Act, 1956 for the promotion and development of textiles, is the registered proprietor of the trademarks KHADI, collectively the KHADI marks. The mark KHADI has also been recognized as a well‑known trademark by the Trademarks Registry. They adopted the trademark KHADI on 25 September 1956 and have been continuously using the same for their products since. These products range from cosmetics such as soaps, face wash, hair‑care products, essential oils etc., to food products, grocery products, oils, diyas, woolen products, hand wash, hand sanitizers, etc., which are sold through retail outlets, exhibitions, their website and other third‑party e‑commerce websites. The Plaintiff also has a considerable social media presence and operates a mobile application named KHADI INDIA. Over the last few years, the Plaintiff has spearheaded a huge growth in the manufacture and sale of personal care products under the KHADI marks and has spent considerable resources in promoting it. In the financial year 2023, the Plaintiff recorded a turnover of over Rs 1,34,629 crores and expended Rs 9.22 crores towards advertisement and promotional activities between 2022‑2023. By virtue of such extensive use, the KHADI marks are exclusively associated with the Plaintiff. Any person desirous of selling products under the KHADI marks has to obtain a valid certificate from the Plaintiff as per the Khadi and Village Industries Commission Act, 1956, Khadi and Village Industries Commission Regulations, 2007 and Khadi Mark Regulations, 2013. Unless authorised, no organisation, individual or institution can affix or use the KHADI marks on their products. In January 2024, the Plaintiff came across a reel/video posted on Instagram advertising a website for delivery of free prasad from the Pran Pratishta ceremony scheduled to be held on 22 January 2024 at the Shri Ram Temple in Ayodhya, Uttar Pradesh. According to the information hosted on the homepage of the website, members of the public desiring the Ram Mandir prasad for free could place their orders by filling a form provided on the website. For such delivery, a charge of Rs 51 for Indian customers and USD 11 for foreign customers is sought. On further exploring the impugned website, the Plaintiff learned that Defendant No. 1, Mr. Ashish Singh, has established the brand KHADI ORGANIC, which is a part of Defendant No. 2 – M/s DrillMaps India Private Limited. Defendants No. 1 and 2 are offering various products such as garments, collectibles, food items, home temples, goods required to conduct religious ceremonies such as Gangajal, bearing the KHADI marks. Additionally, the impugned website contains a tab titled “Donate us”, where financial contributions are sought from the public to facilitate the free prasad initiative being carried out by Defendants No. 1 and 2. As per the Plaintiff’s knowledge, the website was registered on 23 December 2021 but has become operative only recently. The website further endorses links redirecting consumers to various social media profiles of the KHADI ORGANIC brand. Defendants’ account on Pinterest uses the device mark. Defendants No. 1 and 2 are openly promoting their website as an official website for sale of Ayodhya Ram Mandir prasad on various platforms, such as Instagram. The aforesaid KHADI ORGANIC marks subsume the Plaintiff’s KHADI trademark. Defendants No. 1 and 2 have no right to misappropriate the Plaintiff’s registered KHADI marks or to render a false impression that the Plaintiff is affiliated with the Shri Ram Janmabhoomi Teerth Kshetra Trust, which is organizing the consecration ceremony. Several customers have posted videos/reels on Instagram referring to Defendants No. 1 and 2’s free prasad service as a scam. According to their accounts, Defendants No. 1 and 2 are taking money towards delivery charge for the prasad but are not furnishing any tracking receipt for confirmation. In view of such allegations, on 14 January 2024, Defendant No. 1 hosted a live session on the Khadi Organic YouTube channel under the name “We are not fake Q&A Sessions” at 11:00 AM, wherein Defendant No. 1 clarified that this is a private initiative and is not overseen by the Shri Ram Janmabhoomi Teerth Kshetra Trust. He further stated that till 14 January 2024, nearly twenty lakh orders have been received by him. Plaintiff’s investigation further revealed that Defendant No. 2 has filed trademark application No. 6259743 for registration of the mark KHADI ORGANIC in class 29 on 13 January 2024, claiming use since 15 November 2023. Plaintiff had previously initiated action before the Uniform Domain‑Name Dispute Resolution Policy, World Intellectual Property Organization, against Defendants No. 1 and 2 in May 2022 and March 2023 in respect of the domain name registered in their name for sale of cosmetic products, clothing, home accessories etc. under the KHADI mark. These complaints were eventually decided in the Plaintiff’s favour and the domain name was transferred to them. The Delhi High Court has heard the counsel and examined the record. From the extracted images, the Delhi High Court is of the prima facie opinion that Defendants No. 1 and 2’s marks KHADI ORGANIC are deceptively similar to the Plaintiff’s KHADI mark, which is fully incorporated in the impugned marks. It appears that Defendants No. 1 and 2 are attempting to monopolise the consecration event by preying on the public’s religious beliefs and devotion and deceiving them into transferring money to Defendants No. 1 and 2, using the Plaintiff’s goodwill. Ms. Majumder also states that the Plaintiff has placed an order for some merchandise from the impugned website, but the same has not been received yet. The links to the videos posted by disgruntled consumers annexed with the plaint further indicate that Defendants No. 1 and 2 have falsely obtained money from the public without providing a confirmation receipt or proof of dispatch. In these circumstances, the Delhi High Court is convinced that the Plaintiff has demonstrated a prima facie case in its favour and that, if an ex‑parte interim injunction is not granted, the Plaintiff will suffer an irreparable loss; the balance of convenience also lies in favour of the Plaintiff and against Defendants No. 1 and 2. In view of the above, till the next date of hearing, the following directions are issued: Defendants No. 1 and 2 and any person acting on their behalf are restrained from manufacturing, selling, offering for sale, exporting, advertising, directly or indirectly, any kind of goods or services under any mark identical or deceptively similar to the Plaintiff’s registered KHADI marks, which would amount to infringement or passing off of the Plaintiff’s KHADI marks. Defendant No. 3 shall suspend the operation of the domain name/website registered by them and shall also maintain status quo with respect to the ownership of the said domain name. Defendants No. 1 and 2 shall take down their social media pages mentioned in paragraph No. 25 of the application and any other pages active on social media platforms that use any mark identical or deceptively similar to the Plaintiff’s registered KHADI marks. Compliance with Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 shall be done within a period of five days from today. Issue notice. Reply, if any, be filed within four weeks from the date of service. Rejoinder thereto, if any, be filed within two weeks thereafter. List before Delhi High Court on 27 May 2024., 2023 SCC OnLine SC 1382.
id_410	0	Decided on: 11 May 2022. Surinder Kumar, Petitioner; State of Haryana and others, Respondents. Present: Mr. Arpandeep Narula, Advocate for the petitioner; Ms. Sheenu Shura, Deputy Advocate General, Haryana, for the respondents; Justice Pankaj Jain (Oral). By way of the present petition, the petitioner is seeking quashing of FIR No. 6 dated 14 January 2019 registered under Sections 452 and 506 of the Indian Penal Code, Section 3 of the Scheduled Caste and Scheduled Tribe Act, and Section 8 of the Protection of Children from Sexual Offences Act, 2012 at Women Police Station Dabwali, Sirsa, on the basis of a compromise dated 11 January 2021., The question arises as to whether an FIR registered for offences punishable under the Protection of Children from Sexual Offences Act can be quashed on the basis of compromise exercising jurisdiction under Section 482 of the Criminal Procedure Code. Counsel for the petitioner has relied upon the order passed in CRM‑M‑36158 of 2015 dated 1 December 2015 by a coordinated bench of the Supreme Court of India, wherein the FIR was quashed relying upon the law laid down by the Supreme Court of India in Shiji @ Pappu and others v. Radhika and others, 2012 (1) RCR Criminal 9, and also upon the order in CRM‑M‑12404 of 2018 dated 4 December 2018, wherein the FIR registered for offences punishable under, including those of the Protection of Children from Sexual Offences Act, was quashed on the basis of compromise, relying upon the law laid down by the Supreme Court of India in Gian Singh v. State of Punjab and another, 2012 (4) (RCR) 543, and the order passed by the High Court of Kerala in Criminal Miscellaneous No. 5636 of 2019 titled Hafsal Rehman N.K.1 of 7 v. State of Kerala and others., I have heard learned counsel for the parties and have gone through the records of the case. It needs to be noticed that in the aforesaid three precedents relied upon by counsel for the petitioner, the question of quashing offences punishable under the Protection of Children from Sexual Offences Act on the basis of compromise has not been addressed. Further, in fairness to counsel for the petitioner, it should be observed that while relying upon the judgment passed by the Kerala High Court, the Supreme Court of India in the case of The State of Kerala and another v. Hafsal Rehman N.K. and others very fairly brought to the notice of the Court the order passed by the Supreme Court of India in SLP 24362/2021 dated 3 December 2021, whereby the order passed by the Kerala High Court in Hafsal Rehman's case (supra) has been stayed and the investigation has been allowed to continue., The Statement of Objects and Reasons of the Act recognises the duty cast upon the State to direct its policy towards ensuring that the tender age of children is not abused, and that their childhood and youth are protected against exploitation, and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity as directed by Article 39 of the Constitution. The statement further declares the enforcement of the right of all children to security, safety and protection from sexual abuse and exploitation as an object of the Act. The Preamble of the Act declares it to be an Act to protect children from offences of sexual assault, sexual harassment and pornography. It is said to have been enacted with reference to Article 15(3) of the Constitution of India., The Preamble of the Act further declares sexual exploitation and sexual abuse of children as a heinous crime which needs to be effectively addressed. While noticing this, the Supreme Court of India in the case of Eera v. State (NCT of Delhi) (2017) 15 SCC 133 observed: “The purpose of referring to the Statement of Objects and Reasons and the Preamble of the Protection of Children from Sexual Offences Act is to appreciate that the very purpose of bringing legislation of the present nature is to protect children from sexual assault, harassment and exploitation, and to secure the best interest of the child.” On an avid and diligent discernment of the Preamble, it is manifest that it recognises the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person at all stages of a judicial process involving the child., Best interest and well‑being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The Statement of Objects and Reasons gives regard to the constitutional mandate to direct its policy towards securing that the tender age of children is not abused, that their childhood is protected against exploitation, and that they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. It also mentions that the interest of the child, both as a victim and as a witness, needs to be protected. The stress is on providing child‑friendly procedures. The dignity of the child has been given immense emphasis in the scheme of legislation. Protection and interest occupy a seminal place in the text of the Protection of Children from Sexual Offences Act., Further, in Criminal Appeal No. 263/2022 the Supreme Court of India, by order dated 21 February 2022, deprecated the practice of granting bail in offences punishable under the Act while relying upon grounds such as “there was a love affair”. It is also apposite to note that the scope of exercise of power under Section 482 of the Criminal Procedure Code is no longer residuary., In the case of State of Madhya Pradesh v. Laxmi Narayan and others (2019) 5 SCC 688, the Supreme Court of India, after considering various precedents including Gyan Singh v. State of Punjab (2012) 10 SCC 303 and Narender v. State of Punjab (2014) 6 SCC 466, held that the power conferred under Section 482 of the Code to quash criminal proceedings for non‑compoundable offences under Section 320 of the Code can be exercised when the matters have an overwhelmingly civil character, particularly those arising out of commercial transactions, matrimonial relationships or family disputes and when the parties have resolved the entire dispute amongst themselves. Such power is not to be exercised in prosecutions involving heinous and serious offences such as murder, rape, dacoity, etc., which are not private in nature and have a serious impact on society. Similarly, the power is not to be exercised for offences under special statutes such as the Prevention of Corruption Act or offences committed by public servants in the discharge of their duties, and cannot be quashed merely on the basis of compromise between the victim and the offender. Offences under Section 307 of the Indian Penal Code and the Arms Act, etc., fall in the category of heinous and serious offences and therefore the criminal proceedings for such offences, which have a serious impact on society, cannot be quashed under Section 482 on the ground that the parties have resolved their dispute amongst themselves. However, the High Court would not rest its decision merely because Section 307 of the Indian Penal Code is mentioned in the FIR or the charge is framed under this provision; it may examine whether the incorporation of Section 307 is substantive or whether the prosecution has collected sufficient evidence that, if proved, would lead to framing the charge under Section 307. For this purpose, the High Court may consider the nature of injury sustained, whether such injury is inflicted on vital parts of the body, the nature of weapons used, etc. Such an exercise by the High Court would be permissible only after evidence is collected following investigation and the charge sheet is filed or the charge is framed, or during the trial, and is not permissible when the matter is still under investigation., The ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of the Supreme Court of India in the case of Narinder Singh (supra) should be read harmoniously as a whole and in the circumstances stated above. While exercising the power under Section 482 of the Code to quash criminal proceedings in respect of non‑compoundable offences that are private in nature and do not have a serious impact on society, on the ground of a settlement or compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused, the conduct of the accused, such as whether the accused was absconding, the reasons for absconding, and how the accused managed with the complainant to enter into a compromise., Recently, the Supreme Court of India in Ramgopal and another v. State of Madhya Pradesh, Criminal Appeal No. 1489 of 2012, while reiterating the law laid down in State of Madhya Pradesh v. Laxmi Narayan and others (supra), cautioned courts exercising plenary jurisdiction, observing: “We thus sum up and hold that, as opposed to Section 320 of the Criminal Procedure Code where the Court is squarely guided by the compromise between the parties in respect to offences that are compoundable within the statutory framework, the extraordinary power conferred upon a High Court under Section 482 of the Criminal Procedure Code or vested in the Supreme Court of India under Article 142 of the Constitution can be invoked beyond the metes and bounds of Section 320 of the Criminal Procedure Code.” Nonetheless, the Court reiterated that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: the nature and effect of the offence on the conscience of society; the seriousness of any injury; the voluntary nature of compromise between the accused and the victim; and the conduct of the accused persons prior to and after the occurrence of the purported offence and other relevant considerations. Keeping in view the aforesaid settled proposition of law, in the considered opinion of the Court, offences under the Act, being heinous in nature, will fall under the exceptions carved out by the Supreme Court in the case of State of Madhya Pradesh v. Laxmi Narayan and others (supra)., Another point that needs to be noticed is that in cases involving a child, the compromise effected between the parents cannot be recognized. Any agreement or compromise executed by the child, even if the child is still a minor, as in the present case, will be void ab initio and cannot be accorded validity. Parents cannot be allowed to compromise the dignity of a child by an agreement. Whenever, in a society governed by the rule of law, the question arises: who will protect the protector? The obvious answer is the law. Children are human beings to whom respect is due, superior to us by reason of their innocence and the greater possibilities of their future, as expressed by Maria Montessori. This ethos is embedded in the Constitution of India by the founding fathers and the Protection of Children from Sexual Offences Act recognises this., The compromise effected by the child and/or her parents, compromising the dignity of the child, cannot be raised to a status that defeats the very object of the Act. The power granted under Section 482 of the Criminal Procedure Code cannot be exercised to defeat the purpose of an enactment enacted in discharge of the constitutional mandate as well as obligations arising out of international conventions. Consequently, the Supreme Court of India finds that the FIR registered for offences punishable under the Act cannot be quashed on the basis of compromise. As a result, the present petition is dismissed as being devoid of merit. Keeping in view the facts and circumstances of the case, the trial court is directed to expedite the trial and conclude it preferably within a period of six months from the date of receipt of the certified copy of this order.
id_412	0	Writ Petition (Civil) No. 284 of 2015 and Civil Miscellaneous No. 54 525‑26/2018 were heard by a bench comprising Ms. Karuna Nundy, Mr. Mukesh Sharma and Mr. Raghav Awasthy, Advocates, versus Mr. Tushar Mehta, Solicitor General and Mr. Chetan Sharma, Additional Solicitor General, with Ms. Monika Arora, Chief Government Standing Counsel, and Mr. Vinay Yadav, Mr. Amit Gupta, Mr. Akshya Gadeock, Mr. Rishav Dubey, Mr. Rajat Nair, Mr. Sahaj Garg and Mr. R. V. Prabhat, Advocates. Additional intervenors included Mr. Rajshekhar Rao, Senior Advocate and Amicus Curiae, Mr. Karthik Sundar, Ms. Mansi Sood and Ms. Sonal Sarda, Advocates, Ms. Rebecca M. John, Senior Advocate as Amicus Curiae, Mr. Harsh Bora, Ms. Praavita Kashyap, Mr. Chinmay Kanojia, Mr. Pravir Singh and Ms. Adya R. Luthra, Advocates, and Mr. Amit Lakhani and Mr. Ritwik Bisaria as Intervenors for Men’s Welfare Trust. Another petition, Writ Petition (Civil) No. 5858 of 2017 and Civil Miscellaneous No. 45279/2021, was presented by Mr. Colin Gonsalves, Senior Advocate, with Ms. Olivia Bang, Ms. Sneha Mukherjee, Ms. Mugdha and Ms. Aimy Shukla, Advocates, versus the Union of India represented by Mr. Ruchir Mishra, Mr. Sanjiv Kumar Saxena, Mr. Mukesh Kumar Tiwari and Mr. Ramneek Mishra, Advocates., Preface: What looms before us is Lord Hale’s ghost. Thus, the key question which arises for consideration in these matters is whether or not we should exorcise Hale’s ghost. Hale’s formulation was embedded in the doctrine of coverture, a condition which allowed a married woman to sue only through the personality of her husband. Since then, the world has moved on. Women in most parts of the world are treated as individuals, free to enter into contracts in their own right but when it comes to sexual communion with their husbands, their consent counts for nothing. In plain words, the poser before the Delhi High Court is: Should a husband be held criminally liable for raping his wife who is not under eighteen years of age?, Before I proceed further, I must state, with all humility at my command, that as I began to pen this judgment, the enormity of its impact on society was not lost on me. I do not lay claim to being the repository of all wisdom that must be brought to bear in dealing with a sensitive issue that I am to rule on. That said, it is incumbent on courts to take decisions concerning complex social issues and not dribble past them, as that is the mandate of the Constitution and, therefore, a duty and obligation which must be discharged if one is to remain true to the oath taken under the Constitution. Thus, the mea culpa on behalf of the institution is that one way or the other the issue ought to have been laid to rest much earlier., As was evident during the hearing, both within the Delhi High Court and outside, people have varied views concerning the issue at hand. The legal issue, however, rests in a narrow space. The moot point is whether Exception 2 appended to Section 375 of the Indian Penal Code, hereafter referred to as the Marital Rape Exception (MRE), should remain on the statute. Those who support striking down the MRE contend that it is an archaic provision representing the most abhorrent vestiges of colonialism, while those who argue for its retention contend that striking down the provision would disrupt marital and familial relationships, risking misuse of law and transgression of the constitutional periphery within which the courts are obliged to function., At this juncture, I must also note that petitioners seeking the striking down of MRE, i.e., Exception 2 to Section 375 of the Indian Penal Code, also seek the striking down of Section 376B, which concerns sexual intercourse by a separated husband with his wife without her consent, and consequently pray for the striking down of Section 198B of the Code of Criminal Procedure, 1973, which prohibits a court from taking cognizance of an offence punishable under Section 376B of the Indian Penal Code except upon satisfaction of the facts constituting the offence once a complaint is lodged by the wife against the husband. For convenience, MRE/Exception 2 to Section 375 of the Indian Penal Code, Section 376B and Section 198B of the Code will be collectively referred to as the impugned provisions unless the context requires individual reference., Four petitions are before this Court. Two are pure public interest petitions. The third petition, Writ Petition (Civil) No. 5858 of 2017, concerns Ms. Khushboo Saifi, who alleges sexual abuse, including rape, by her husband and contends that because MRE continues to remain on the statute, she is disabled from prosecuting the complaint. The fourth petition, Writ Petition (Criminal) No. 964 of 2017, was instituted by Mr. Farhan. The prayer made in that writ petition is to quash FIR No. 204/2016, dated 25 November 2016, registered at Police Station Hauz Qazi, Delhi, under Sections 376, 363 and 342 of the Indian Penal Code read with Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012, and the proceedings commenced thereunder. No oral arguments were advanced by counsel for the petitioner in that petition; the written submissions raise issues concerning Muslim Personal Law. It is argued that MRE is not impacted by provisions contained in the Protection of Children from Sexual Offences Act., The charge against the proposition that the impugned provisions should be struck down was led by Mr. J. Sai Deepak, who appeared for the intervenor Men’s Welfare Trust, and Mr. R. K. Kapoor, who represented another applicant, an NGO named Hridaya. MWT is not opposed to the criminalisation of spousal sexual offences, especially non‑consensual sex between spouses or spouse‑like relationships. MWT does not contend that husbands have a right to impose themselves on their wives by citing marriage as implied consent to every marital privilege including sexual intercourse. Trust, dignity and respect which form the basis of a marriage are a two‑way street. A multilayered and multivariable nature of a marital relationship has been reduced by the petitioners to a single issue, consent, a proposition with which MWT disagrees. MWT’s objections to the writ actions are, principally, the following: The prayers made in the writ petition are beyond the scope of the Delhi High Court’s jurisdiction and/or power because granting them would create a new class of offence beyond the power of judicial review conferred on this Court, thereby eroding the basic feature of the Constitution, namely the doctrine of separation of powers, in a matter concerning the criminalisation of a sexual act committed by a husband on his wife, which is otherwise protected under MRE. The doctrine of separation of powers does not have a mere transactional construct of division of territory between various organs of the State but is meant to preserve the right of the people to participate in law and policy making lest it becomes the preserve of the few. Therefore, if this Court were to grant the prayers sought by the petitioners, it would keep the Republic outside the pale of participation in law and policymaking on a sensitive social issue, truncating fundamental rights and empowering an unelected body to undertake an exercise beyond its constitutional mandate and expertise. The striking down of MRE would result in the creation of a new offence without considering its social impact. There is a need to create an ecosystem to deal with the issue, such as a definition, processes, safeguards, evidentiary standards and forums, none of which the Court is equipped to forge or prescribe. The Court is thus a sub‑optimal forum for considering a variety of perspectives that are not only legal but also social and cultural. Since the learned Amici lean in favour of the petitioners, inputs ought to have been sought from other Amicus Curiae as well. It is emphasized that while MWT does not question the right of the learned Amici to present their position, additional Amicis should have been appointed to present a more diverse perspective. MRE does not in any manner envisage or require a wife to submit to forced sex by the husband and does not encourage a husband to impose himself on the wife, contrary to what the petitioners contend. Remedies are available to address non‑consensual sex between spouses, as apparent from a plain reading of Section 376B and Section 498A of the Indian Penal Code as well as the provisions of the Protection of Women from Domestic Violence Act, 2005. The legislature, by creating a separate legal ecosystem for dealing with spousal sexual violence, has criminalised non‑consensual sex between spouses without terming it as rape within the meaning of Section 375 of the Indian Penal Code and, at the same time, balanced the rights of husbands by appending MRE. This distinction has been made by the legislature having regard to the complexity involved while dealing with the institution of marriage and not on account of patriarchy. The distinction is reasonable and based on intelligible differentia and therefore must pass muster of Articles 14, 15, 19 and 21 of the Constitution. Assuming for the sake of argument that the legal framework which criminalises spousal sexual violence is inadequate, that by itself cannot be the reason to declare the impugned provisions unconstitutional. The gaps in the law which arise on account of inadequacy cannot be remedied by the judiciary since these aspects fall within the exclusive domain of the legislature. This Court, exercising powers under Article 226, cannot fill a legal void or redress obvious lacunae. Although the Supreme Court, while exercising powers under Article 141, could do so, this Court is not invested with that power and cannot fill the perceived vacuum in the framework of the law. Although the impugned provisions are part of our colonial legacy, they have undergone a process of Indianisation after the enactment of the Constitution, an aspect evident from parliamentary cogitations and consequent amendments in the Indian Penal Code and the Code of Criminal Procedure. Article 372 of the Constitution protects laws enacted prior to the Constitution coming into force as long as they pass muster of other provisions contained in the Constitution, in particular provisions concerning fundamental rights. Therefore, the presumption of constitutionality also attaches to pre‑constitutional laws unless successfully rebutted by one who seeks to assail such a law. A law cannot be struck down merely because it predates the Constitution. The legislature has the power and right under the Constitution to undertake social experiments so long as they are not manifestly arbitrary; the judiciary cannot interdict such laws merely because it has a different or diametrically divergent point of view. The leanings or individual proclivities of judges cannot become the basis for exercising the power of judicial review. In matters relating to spousal sexual violence, the Bharatiya Legislature should have the power and freedom to ideate and consult with other stakeholders having regard to the social and cultural mores of our society without being subjected to pontification by the petitioners in the garb of international norms and standards. This approach of the petitioners reeks of coloniality and goes against their submission that MRE is less constitutional since it is colonial. The petitioners’ position of what is colonial and what is international is selective, convenient and constitutionally fallacious. Furthermore, if international norms and standards are to be applied, as contended by the petitioners, the movement worldwide is towards enacting gender‑neutral laws in the realm of sexual violence. While MWT has actively campaigned for gender‑neutral laws and the preservation of the institution of marriage, the petitioners have sought gender‑specific prayers and the creation of gender‑specific fences at the expense of marital institutions. The abuse of the provisions of Section 498A of the Indian Penal Code has been recognised by the courts and, therefore, there is a need to introduce gender‑neutrality in the sphere of sexual violence. Therefore, if MRE is struck down, it would only add to the existing inequities and injustice. The appropriate forum would be the legislature as the enactment of law requires the formulation of policy which ought to be informed by a baseline study and not mere legal arguments. Since this Court has taken up the matter after seven years and it has taken over two months to hear legal submissions, the legislature is surely entitled to be accorded sufficient time to undertake consultation with the States and various public interest groups and organisations which operate in this space. No judgment in India or elsewhere has granted the kind of prayers sought by the petitioners. No amount of semantic jugglery or misrepresentation of case law can refute this fact. At best this Court can prod the legislature into expediting the process of consultation and legislation if the legislature deems it necessary but under no circumstances can a court of law direct a direction or outcome of the process. In fact, the Court cannot even influence the process by issuing an advisory opinion on matters which are outside the scope of its constitutional remit. Only the Supreme Court has the power to issue an advisory opinion under Article 143 if the President of India so seeks. There is no such power vested in the High Court under Article 226 to issue an advisory opinion to the legislature of the Centre or the State. The striking down of MRE would result in enlarging the scope of the said provision and end up recognising the sexual act committed in the context of marriage as an offence. This power is beyond the scope of the Court’s power of judicial review available under Article 226 of the Constitution or even to the Supreme Court under Article 141 of the Constitution. Therefore, reliance on judgments such as Shreya Singhal v. Union of India, (2015) 5 SCC 111 or Navtej Singh Johar v. Union of India, (2018) 10 SCC 12, which concern Section 66A of the Information Technology Act, 2000 and Section 377 of the Indian Penal Code respectively, would have no relevance to the instant case. Those were judgments where a challenge was laid to a criminalising provision whereas if MRE is struck down, it would result in the exact opposite consequence, i.e., end up criminalising an act committed by a husband to his wife in the context of marriage. The reliance by the petitioners on the judgment rendered in Shayara Bano v. Union of India, (2017) 9 SCC 13 is also baseless since the Supreme Court only declared the practice of talaq‑e‑biddat recognised under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 as unconstitutional. The question as to whether criminal consequences should ensue if recourse is taken to talaq‑e‑biddat by the husband was left to the wisdom of the legislature. If this Court were to grant the prayers sought by the petitioners, it would encroach upon the exclusive domain carved for the legislature under Article 246 of the Constitution. The issue concerning marital rape and spousal sexual violence requires consideration of various aspects including social, cultural and legal. Although the issue escalated to this Court is legal, the consequences are social and cultural. Policymaking is today data‑driven; anecdotal evidence will not suffice, and dealing with the issue as a mere lis would amount to missing the forest for the trees. The petitioner's invitation to the Court to transgress the line of the doctrine of separation of powers is deeply disturbing for it could have disastrous consequences as people's respect for institutions as well as the Constitution would be diminished. Furthermore, constitutional morality and institutional independence would stand undermined if the petitioner's prayers were to be granted. The reliance placed by the petitioners on the judgment of the Supreme Court rendered in Independent Thought v. Union of India, (2017) 10 SCC 4 is misplaced; in particular, the emphasis laid on the inversion test, relied upon by Ms. Karuna Nundy, counsel for one of the petitioners, is equally misconceived. In that case, the Court confined its discussion to whether sexual intercourse between a man and his wife who is a girl between fifteen and eighteen years of age would tantamount to rape and made it clear that the Court could not create an offence. The judgment in Independent Thought was rendered to do away with the conflict which arose on account of provisions contained in the Protection of Children from Sexual Offences Act, the Prohibition of Child Marriage Act, 2006 and MRE insofar as it concerned girls falling in the age group fifteen to eighteen years. The Court’s anxiety was to do away with the immunity granted to men who marry girls under the age of eighteen when the Protection of Children from Sexual Offences Act defined a child as a person below eighteen years of age. Section 42A of the Protection of Children from Sexual Offences Act provides that it would override all other legislations. It is in this context that the Supreme Court read down MRE with respect to a girl child falling between fifteen and eighteen years of age. Thus, petitioners cannot take recourse to the inversion test and apply the observations made in Independent Thought to buttress their stand concerning marriage between adults. The petitioners’ argument that striking down MRE would not amount to the creation of a new offence but would merely enlarge the scope of offenders is an argument that deserves to be rejected. The legislature has consistently given sui generis treatment to the institution of marriage and, therefore, the wisdom of the legislature needs to be respected. Although the impugned provisions have a colonial legacy, they should be presumed constitutional unless demonstrated otherwise by the challenger. The petitioners’ argument based on the judgment of the Supreme Court rendered in Navtej Singh Johar that there is no presumption of constitutionality for statutes enacted prior to the coming into force of the Constitution is misconceived as the said judgment is per incuriam for the following reasons: The Supreme Court relied upon Article 372(2) and the dissenting judgment of Chief Justice A. M. Ahmadi in NDMC v. State of Punjab, (1997) 7 SCC 339 to conclude that pre‑constitutional laws do not enjoy the same degree of presumption of constitutionality as those enacted after the Constitution came into force. The appropriate provision that the Court ought to have discussed is Article 13(1) of the Constitution. Although the Court notices its judgment in John Vallamattom v. Union of India, (2003) 6 SCC 611 which advertises Article 13 of the Constitution, there is no discussion of that article in Navtej Singh Johar. In Navtej Singh Johar, although the Court referred to judgments rendered in Chiranjit Lal Chowdhuri v. Union of India, 1950 SCR 869 and State of Bombay v. F. N. Balsara, 1951 SCR 682, both of which dealt with pre‑constitutional enactments and the presumed constitutionality of those statutes, these aspects were not given due consideration in Navtej Singh Johar’s case. Likewise, the courts also did not consider the impact of another judgment rendered by it in Reynold Rajamani v. Union of India, (1982) 2 SCC 474 which concerned the Divorce Act, 1869, a pre‑constitutional enactment. The question, therefore, which arises for consideration is whether the presumption of constitutionality attaches to pre‑constitutional laws. The fact that Section 376B of the Indian Penal Code and Section 198B of the Code were incorporated in the respective statutes by Act 13 of 2013, i.e., after the Constitution came into force, would enjoy the presumption of constitutionality. Furthermore, the Court needs to recognise that despite demands made to do away with MRE, the legislature chose not to remove the provision from the statute, which would lend a presumption of constitutionality even to this provision. In this context, it is important to bring to the notice of the Court that MRE has been adverted to in the following documents despite which the legislature has chosen, as indicated above, not to remove it from the statute: Paragraph 5.9.1 of the 167th Report of the Parliamentary Standing Committee of Home Affairs on the Criminal Law (Amendment) Bill, 2012; the 19th Report of the Lok Sabha Committee on Empowerment of Women (2012‑2013); the Report of Justice J. S. Verma (Retd.) Committee on Amendments to Criminal Law; and the 172nd Report of the Law Commission of India on Review of Rape Laws.
id_412	1	A sexual offence committed by a person who is not a spouse or is a stranger attracts the provisions of Section 375 of the Indian Penal Code. Likewise, gang rape attracts the provisions of Section 376D. Sexual offences committed by persons in a position of authority are covered by Section 376. Unnatural offences without exception attract Section 377. Sexual offences committed by a husband while remaining a husband attract Section 498A of the Indian Penal Code. Sexual offences committed by a husband after legal separation or de facto separation attract the provisions of Section 376B of the Indian Penal Code. Under Section 376(2), a person found guilty is accorded a punishment of not less than ten years, with life imprisonment prescribed as the maximum punishment; a specific provision under Section 376B is engrafted for husbands. This provision does not include husbands who are not in a position of authority. The provision of the Indian Penal Code, when read along with Section 114A of the Indian Evidence Act, would have grave consequences if extended to husbands., Section 114A of the Indian Evidence Act provides that in a prosecution for rape under various clauses of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question arises as to whether consent was given, if the woman states that she did not accord consent, the Supreme Court of India shall presume that no consent was given. The explanation appended to this section makes it clear that sexual intercourse shall mean any of the acts mentioned in Clauses (a) to (d) of Section 375 of the Indian Penal Code. This provision has the potential to disrupt marital relationships., The acts referred to in Clauses (a) to (d) of Section 375 of the Indian Penal Code are deemed sexual acts and are not per se illegal; they become illegal when they fall under any of the seven circumstances outlined in Section 375. Therefore, consent is not the sole deciding factor. What determines whether the sexual act is an offence are the circumstances set forth in Section 375. In contrast, the sexual act between a separated husband and wife, whether under a decree of separation or otherwise, is premised on the consent of the wife. This distinction is not based on patriarchal consideration but has practical connotations, as it is next to impossible to establish the absence of consent given the intimate nature of the marital relationship and the possible absence of eye‑witness accounts., The absence of consensual conjugal relations is easier to presume in the event of legal or de facto separation. For this reason, a preliminary enquiry is required to be carried out under Section 198B of the Code of Criminal Procedure to assess if couples live apart while residing under the same roof before booking the husband for an offence under Section 376B of the Indian Penal Code., Given the age of sexual liberation, it is not possible to conclude definitively whether the wife was exposed to sexual cruelty or non‑consensual sex. The presence of bruises or injury cannot automatically lead to an adverse conclusion, as they could be merely a manifestation of passion that may subsist between spouses when they indulge in sexual acts. Therefore, State intervention through the legislative route is required to balance individual dignity and prevent the possibility of abuse of legal remedies that may harm an individual's dignity or reputation., The argument that consent alone matters and marriage changes nothing in this regard is legally and practically baseless. Marriage is accompanied by obligations that the partners have to bear, including conjugal expectations, financial obligations, and duty towards progeny. The expression “will” and “consent” in Section 376B of the Indian Penal Code are not identical, which explains the use of “without consent” in that provision. In a marital relationship, partners may choose to accede to sexual acts for a variety of reasons, and not all of them necessarily amount to cruelty. In such circumstances, consent may be given as part of spousal intimacy even if the will to engage is absent., Besides the remedies available in the Indian Penal Code, victims of spousal violence can also take recourse to the provisions under the Domestic Violence Act. Section 3 of the Domestic Violence Act defines sexual abuse to include any conduct of sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of women, clearly including non‑consensual sex. Section 19(2) of the Domestic Violence Act empowers the magistrate to pass any direction deemed reasonably necessary to protect or provide for the safety of the aggrieved person. In practice, magistrates routinely issue directions for the registration of FIRs under Sections 498A, 376B and 377 of the Indian Penal Code. Hence, it is incorrect to claim an absence of criminal remedies concerning non‑consensual sex., The difference in punishment for spousal sexual violence and other safeguards such as limitation is a conscious legislative choice, having regard to the special status of marital relationships under the Indian Penal Code and the Domestic Violence Act. The legislature treats spousal sexual violence as a distinct category from rape within the meaning of Section 375. The sui generis treatment given to sexual offences committed in marital relationships highlights the differences in what is categorized as an offence., The submission that Section 40 of the Indian Penal Code defines offence merely as an act that is made punishable, without drawing a distinction based on the offender or the context, is misconceived. The Indian Penal Code contains provisions where acts committed by different persons result in different outcomes, for example, the same offence committed by an adult versus a juvenile, or the provisions of the Protection of Children from Sexual Offences Act. Therefore, the legislature has consciously avoided using the word “rape” in the context of spousal relationships, not to protect the spouse but to protect families and progeny., The marital institution is a legitimate concern of the State. The mores and values of other countries cannot be foisted on Indian society. Public morality on such issues can only be ascertained by the legislature, not by the Supreme Court of India. Policy disagreements cannot automatically be escalated to the threshold of unconstitutionality, and courts cannot be used as instruments to upset policy decisions merely because a cross‑section of society disagrees., The petitioners’ contention that international norms and standards should be taken into account ignores the safeguards provided in the Sexual Offences Act 2003 of the United Kingdom. Section 1 of that Act allows the accused to raise a defence that he was under a reasonable belief that sexual intercourse with the alleged victim was consensual. Section 23 exempts spousal and civil partners from the applicability of Sections 16 to 19, which relate to abuse of a position of trust. The Act also spells out evidentiary standards and circumstances in which conclusive presumptions may be drawn, and it is gender‑neutral., The reliance on the judgment of the European Court of Human Rights in C.R. v. United Kingdom misses the point that it concerned an estranged couple, a situation squarely covered under Section 376B of the Indian Penal Code. In Nepal, a similar petition was quashed, and Nepal introduced procedural safeguards when the law on spousal sexual violence was finally enacted, including the requirement that legal proceedings be initiated within thirty‑five days of the alleged offence. Nepal’s legislation is also gender‑neutral., Various states of the United States of America have taken differing positions. For instance, in the State of Maryland, spousal defence is recognised; Connecticut treats spouses differently from strangers; Idaho recognises special circumstances in which a spouse or partner may be prosecuted. Safeguards have also been introduced by states such as Nevada, Rhode Island, Oklahoma, South Carolina and Virginia. None of the international instruments cited envisage the creation of offences by the judiciary; they address sexual dignity and violence in gender‑neutral terms., In sum, the organization representing women’s interests does not oppose the recognition of spousal sexual violence. Its position is that spousal sexual violence is already criminalised, and any grievance concerning inadequacy can only be addressed by the legislature, not by the Supreme Court of India. Inadequacy is a matter within the legislative domain and cannot become a ground for a constitutional challenge., The arguments advanced by Mr Sai Deepak largely covered the submissions made by counsel for the organization. To avoid prolixity, those arguments are not specifically recorded herein. Mr R.K. Kapoor, appearing for another intervenor, made submissions in line with Mr Sai Deepak’s arguments. He stated that retention of the marital rape exception on the statute does not violate Article 14 of the Constitution. In 1983, when Section 375 of the Indian Penal Code was amended, only the expression “of rape” was substituted with “sexual offences”; the substance of Section 375 remained intact., Despite several amendments to the Indian Penal Code and related statutes, the marital rape exception remained undisturbed. The wisdom or motive of Parliament cannot be subjected to judicial scrutiny; courts are precluded from legislating and may only interpret the law. If the law is misused, it is for the legislature to amend, modify or repeal it., Section 376B and the marital rape exception represent persons who fall into two different classes. On account of judicial separation, husband and wife are physically and mentally set apart, and the wife’s consent for a sexual relationship stands withdrawn from the date of separation. Therefore, retention of the marital rape exception does not amount to a violation of Article 14. Article 14 permits reasonable classification based on the nexus and object sought to be achieved by the legislature., The 167th report of the Parliamentary Standing Committee observed that if marital rape were brought under the law, the entire family system would be under great stress. The courts cannot examine the adequacy of the objects sought to be achieved or the motive of the legislature in passing a statute. If the marital rape exception is struck down, husbands who are not separated would face harsher punishment than those separated and booked under Section 376B. For example, a husband convicted under Section 376 faces imprisonment of not less than ten years, possibly life, whereas Section 376B provides a minimum of two years, up to seven years., The legislature has also provided safeguards under Section 114A of the Indian Evidence Act to address anomalies concerning husbands who remain in marriage versus those who are separated. Section 376 of the Indian Penal Code concerns offences involving persons who fall in a separate and distinct class that cannot be tampered with by the court, as affirmed in cases such as Sant Lal Bharti v. State of Punjab and H.P. Gupta & Anr. v. Union of India., The issue of punishment for husbands who are not separated from their wives and are found guilty of offences under Section 375 of the Indian Penal Code requires legislative intervention. The organization does not argue that a husband who commits a non‑consensual sexual act should go scot‑free; rather, it objects to imposing a punishment harsher than that provided for separated husbands under Section 376B. The Parliamentary Standing Committee noted that other remedies, such as those under the Domestic Violence Act, are available., The magistrate under Section 31 of the Domestic Violence Act is entitled to impose a penalty of imprisonment and fine if the husband breaches a protection order, and may also frame charges under Section 498A and other provisions of the Indian Penal Code. Under Section 32 of the Domestic Violence Act, such an offence is cognizable and non‑bailable., India is not a “Hindu” State; the provisions of the Indian Penal Code apply to all citizens irrespective of faith. The marital rape exception benefits all, regardless of religion. The Special Marriage Act, 1954 provides that divorce can be sought on the ground of cruelty. The Dissolution of Muslim Marriage Act, 1939 furnishes a ground for divorce when a husband fails to perform marital obligations for three years without reasonable cause. Similarly, where a wife denies conjugal rights to a husband, it has been treated as cruelty and a ground for divorce, as held in Vidhya Viswanathan v. Kartik Balakrishnan., The courts in India ought not to apply western concepts. Western concepts cannot form the basis for striking down a statutory provision made by Parliament having regard to the needs of its people. Therefore, it cannot be pleaded that a violation of Article 14 occurs because a wife residing in a western country can file a complaint about sexual abuse, while the same remedy is not available to a wife residing in India., If the marital rape exception is struck down, it is likely to be misused, as has happened with cases lodged under Section 498A of the Indian Penal Code. The expression “relative” or “trust” used in Section 376(2)(f) of the Indian Penal Code cannot be extended to include a husband., The marital rape exception has been retained to protect the institution of marriage. An individual is punished for a crime because it impacts society at large, which needs protection from the pernicious effects of such crime. The legislative policy of not punishing an offence committed by a husband upon his wife, which otherwise would fall within Section 375, is intended to protect the institution of marriage, a social institution with social, economic, cultural and religious ramifications, as recognized by courts., The marital rape exception has the potential of destroying the institution of marriage. The endeavour to save the institution also finds recognition in statutes such as the Hindu Marriage Act, 1955. Sections 13, 13B, 14, 13(1A) and 16 of the Hindu Marriage Act demonstrate an effort to preserve marriage. A divorce petition cannot be filed unless one year has elapsed since the date of marriage, and a mutual‑consent divorce requires the parties to have lived separately for one year or more., The position of a sex worker cannot be compared with persons bound by marriage. A perpetrator cannot claim restitution of conjugal rights against a sex worker, nor can a sex worker claim maintenance from the perpetrator. The relationship between husband and wife comprises mutual rights and obligations that are social, psychological, religious and economic, and cannot be limited to a single event of consent in sexual relationships., Different punishments cannot be provided for dissimilar situations. The marital rape exception presents a case of reasonable classification and therefore cannot be struck down under Article 14. Even if a violation of Article 21 were established, reasonable classification is permissible for providing different punishments., Retention of the marital rape exception does not indicate that Parliament justifies the act; it merely establishes that it is not deemed fit to be punished under Section 376 of the Indian Penal Code. If a husband uses force or intimidation in committing marital rape, the wife can invoke other provisions available in the Indian Penal Code and other statutes to obtain redress, such as Sections 323 to 326, 326A, 326B, 328, 336, 352, 354, 354A, 354B, 354C, 355, 498A, 304B, 506 and 509 of the Indian Penal Code, as well as provisions of the Domestic Violence Act., Forced sexual intercourse between a husband and wife cannot be treated as rape; at most, it can be treated as sexual abuse, as defined in Section 3 of the Domestic Violence Act., A wife cannot prescribe a particular punishment to satisfy her ego. The only difference between Section 376 of the Indian Penal Code and the Domestic Violence Act is the quantum of punishment, although the act of sexual abuse is an offence under both statutes. The object and purpose of retaining the marital rape exception cannot be said to be arbitrary or violative of Articles 14, 15 or 21 of the Constitution. Accordingly, the Code of Criminal Procedure provides a different procedure for offences relating to marriage, and the Evidence Act provides presumptions for other offences., The importance of conjugal rights in marriage is reflected in Section 9 of the Hindu Marriage Act, which concerns restitution of conjugal rights. Denial of sex by either spouse is construed as cruelty and is a ground for divorce. Legislative wisdom cannot be doubted on the ground of flawed classification. The Parliament has latitude to provide different punishments for different offences, as illustrated by the varying punishments for offences under Sections 420, 494, 353, 302, 303, 304, 304A and 304B of the Indian Penal Code., The powers of judicial review conferred on the Supreme Court of India are limited. While exercising judicial review, the court cannot substitute its own opinion for the wisdom of the legislature. It cannot be said that if the legislature gives protection to citizens by engrafting the marital rape exception, the judiciary can take away that protection by striking down the exception., The Independent Thought judgment read down the marital rape exception but did not create an offence. That judgment is binding only for the issue it addressed and has no application to the present matters., The power of the High Court under Article 226 of the Constitution cannot be equated with the power available to the Supreme Court of India under Articles 32, 141 and 9., The Supreme Court of India, via the decision in Vishaka v. State of Rajasthan, endeavoured to fill a legislative vacuum concerning sexual harassment of women in workplaces while exercising powers under Article 32. The court emphasized that its decision could be treated as law declared under Article 141. Courts can make recommendations to Parliament if changes are required in the law.
id_412	2	In support of this proposition, submissions were advanced by Mr Colin Gonsalves, Ms Karuna Nundy and the two amici appointed by the Delhi High Court i.e., Mr Rajshekhar Rao and Ms Rebecca John, Senior Advocates., Mr Colin Gonsalves broadly made the following submissions. He began by alluding to the journey that the matters had taken since 2015 and in this behalf referred to the fact that the Union of India had filed its counter‑affidavit on 25 May 2016 in Writ Petition (Civil) No. 284/2015 and that pleadings were completed on 29 August 2016. Based on the record, he stated that arguments in the captioned matters were heard by the earlier bench at length for 26 days between 29 August 2017 and 14 August 2018. He also noted that the present bench had taken up the matter on 15 December 2021 (when an early hearing application was allowed) and consequently commenced hearing on 7 January 2022 on a daily basis., Mr Gonsalves contended that the Union of India's written submissions dated 26 August 2017 revealed that for defining marital rape, a broad‑based consensus of society would have to be obtained. In those submissions, the Union of India took the position that it was necessary to implead various State Governments to obtain their opinion and avoid complications later. He further submitted that although five years had passed, the Union of India had failed to undertake a consultative process, as evident from written submissions dated 12 January 2022 and additional affidavits dated 3 February 2022 and 21 February 2022., Since Mr Gonsalves was representing the petitioner in Writ Petition (Civil) No. 5858/2017 (hereafter referred to as the Khushboo Saifi case), he briefly referred to the facts arising in that matter., Ms Khushboo Saifi was a married woman of 27 years of age. She entered into an arranged marriage with Mr Aizaz Saifi on 4 December 2016 and, at that juncture, was pursuing a Bachelor of Arts degree from Indira Gandhi National Open University. At the time of marriage, she was in the final year of that course., Mr Gonsalves drew attention to the assertions made in the writ petition that Mr Aizaz, at the time he entered into matrimony with Ms Khushboo Saifi, was already involved in an extramarital relationship with another woman, whom he eventually married on 16 April 2017 without providing any maintenance to Ms Saifi. The petition also alleged ill‑treatment of Ms Saifi by her husband, including forced sexual intercourse on multiple occasions without regard to her physical well‑being. Ms Saifi averred that she was raped by her husband, Mr Aizaz. It was emphasized that Ms Saifi was not provided medical aid by her husband or in‑laws and was not allowed to use her mobile phone; she could communicate with the outside world only through her husband's phone, and those conversations were recorded. Mr Gonsalves pointed out that under these circumstances she approached an NGO for shelter, which led to Ms Saifi filing an FIR with the Crime Against Women Cell in South East District, Srinivas Puri, Delhi, on 12 June 2017., Besides the facts involving Ms Saifi, Mr Gonsalves also made the following general submissions. He prefaced his arguments with the issues that, according to him, arose for consideration in the instant cases, which formed the broad contours of his submissions., Firstly, according to him, the marital rape exemption (MRE) was manifestly arbitrary as it sought to decriminalise a crime as heinous as rape. Secondly, Section 376B of the Indian Penal Code was unconstitutional since it created a distinction between husbands who are not separated from their wives and those who are separated by bringing the latter class of husbands within the definition of rape in respect of forced sexual intercourse under Section 375 and, at the same time, prescribing a lesser punishment for such a crime. Thirdly, rape is a heinous crime that has multiple consequences including mental trauma and severe adverse medical effects. It would be arbitrary to decriminalise marital rape on the ground that by entering into matrimony, a woman consents to a continued sexual relationship from which she cannot retract. Fourthly, there is no rationale for distinguishing between married and unmarried men who subject women to forced sexual intercourse. Fifthly, marriage cannot be a relevant consideration in concluding whether a criminal offence has been committed. Sixthly, the rape of a woman by her husband was unconstitutional from inception and is being put to test only now. Seventhly, having regard to the passage of time and a better understanding of gender equality, the MRE should not be permitted to remain on the statute. Eighthly, the distinction sought to be drawn between Western and Indian values insofar as marital rape is concerned is untenable in law. There is no truth in the submission that Indian society is somehow superior to Western societies and that marital rape is not known in India. Ninthly, the Delhi High Court should not desist from examining the constitutionality of the impugned provisions only because it is impossible to prove the occurrence of marital rape as at times it happens within the confines of a household. Tenthly, the Delhi High Court should also not desist from examining the constitutionality of the MRE only because some women may file a false complaint against their husbands., Elaborating upon the aforementioned submissions, Mr Gonsalves submitted that the distinction drawn concerning the offence of rape between those who are married as against those persons who are unmarried was unmerited. The classification, according to him, had no rational nexus to the object sought to be achieved if the legislative policy on rape is to be taken forward. Insofar as the constitutional courts are concerned, they have to only examine whether the impugned provisions stand the test of Articles 14, 15 and 21 of the Constitution. Therefore, once such a declaration is made, matters concerning proof and false complaints could be examined in specific cases by the trial courts., Therefore, the circumstances in which the conduct of the husband would amount to coercion or consent would be examined by the trial courts in the given fact situation. Evidence led by the prosecution and defence will determine the outcome of cases that are dealt with by the trial courts. Adjudication of cases of marital rape and non‑marital rape has been carried out in various jurisdictions and, therefore, there are legal precedents available to the trial courts to deal with such issues. These issues, though, should not come in the way of a constitutional court to examine the vires of MRE., The argument that in a marriage, there is a presumption in favour of consensual sex which is not present in forced sexual intercourse outside marriage is flawed. The argument is founded on the theory that husbands have a greater degree of laxity available to them with regard to consent when engaging in sex with their wives. That this argument is untenable in law can be tested against the plight of a sex worker. The Supreme Court of India has decried such an attempt by holding that even a sex worker has a right to refuse forced sexual intercourse. [See State (NCT of Delhi) v. Pankaj Chaudhary, (2019) 11 SCC 575.], The submission advanced that forced sex in marriage cannot lead to a husband being sentenced to imprisonment for a term spanning between 10 years and life; the insinuation being that the sentence should be much less, is flawed. This is also an argument put forth to defend the retention of MRE on the statute. These submissions are premised on an erroneous understanding of the role of constitutional courts. The Delhi High Court cannot resolve all complications that concern sentencing; a job entrusted to the Parliament and those which emerge out of a particular fact situation. All that is required of the Delhi High Court, at this juncture, is to test the vires of the impugned provisions against the provisions of the Constitution. Once such a step is taken, it is open for the Parliament to step in and take the necessary next steps in the matter which includes whether a husband found guilty of rape should be imposed with a lesser punishment., It is important to note that both the Supreme Court of India and Parliament have in the past dealt with new and complex issues that have arisen in criminal law. By way of example, reference was made to the guidelines issued by the Supreme Court of India that were required to be adhered to by the trial courts in cases concerning sexual abuse of children and those related to children involving domestic violence. [See Sakshi v. Union of India, (2004) 5 SCC 518 and Rajnesh v. Neha, (2021) 2 SCC 324.], Thus, the elimination of MRE is the first step that is required to be taken. Deflating a grave and heinous offence such as rape is untenable. The argument loses sight of the fact that the penology behind punishment is concerned not only with the incarceration of the convict but also with stigmatizing the conduct which does not meet with the approval of the society. Since rape is a grave and heinous offence, society at large should know about the conduct of the convict. Therefore, the submission that other provisions of the Indian Penal Code provide for equivalent punishment for sexual offences, and hence, MRE should remain on the statute is untenable in law., Equally, the argument that misuse of law should be a reason to desist from striking down MRE should be rejected outrightly by the Delhi High Court. The manner in which misuse of the law needs to be dealt with is an aspect which would require the intervention of the legislature. [See Sushil Kumar Sharma.], The submission advanced that the observations made in the Independent Thought case cannot be relied upon is erroneous; once a judgment is delivered on a given set of facts it is not open to a court to state that it cannot be relied on as a precedent. A judgment once delivered belongs to the world and thus, such observations cannot bind the judges, lawyers and members of the public in other cases. If there is parity, then litigants should be free to apply the ratio of an earlier judgment notwithstanding such observations. [See Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230; at paragraph 37 and D. Navinchandra & Co. v. Union of India, 1989 SCC OnLine Bom 485; at paragraph 37.], The submission that in marriage there is an expectation of sex i.e., a right to have sex absent consent would amount to resurrecting the Ghost of Lord Hale. Marriage merely gives social sanction to sex between adults. Procreation that follows such sexual union also receives acceptability from society. Therefore, a husband may expect sex but from there to argue that he would have the right to demand sex from a woman merely because she is in marriage with him, bereft of love, for satisfying carnal desire and procreation, is morally and legally untenable as it institutionalises violence within the family. It is, therefore, the duty of a constitutional court to end such institutional violence against women. It is quite possible that even if the Delhi High Court were to nullify MRE, women victims may not lodge complaints and may suffer silently as social change does not occur automatically with the alteration in law alone. It would be the first important step towards a real change and education of women in respect of their rights over their own bodies., Ms Karuna Nundy, who appears on behalf of the petitioners, who have instituted Writ Petition (Civil) No. 284/2015 (i.e., RIT Foundation) and Writ Petition (Civil) No. 6024/2017 (i.e., All India Democratic Women's Association), alluded to the work carried out by these organizations to promote social and gender equality in India across classes, castes and communities., Ms Nundy highlighted the fact that the challenge laid to the marital rape exemption on the ground that it was unconstitutional as a logical and inevitable corollary has led the petitioners to challenge Section 376B of the Indian Penal Code and Section 198B of the Code of Criminal Procedure., In this context, the submission made was until marital rape is declared explicitly to be an offence, it will continue to be condemned. It is a moral right of a woman to refuse unwanted, forcible sexual intercourse. This case is about respecting the right of a wife to say no to sexual intercourse and recognising that marriage is no longer a universal licence to ignore consent., The Constitution is transformative as citizens are transforming. Social transformation should ensure that citizens' right to justice, liberty, equality and fraternity is protected. Citizens' rights travel along the constitutional path because judges' personal and social moralities travel to the destination of constitutional morality. Substantive equality is dependent on the recognition of historical wrongs and discovering remedies for curing the wrong. The right of a wife to say yes to sexual intercourse includes the corollary i.e., the right to say no. [See S. Sushma v. Commissioner of Police, 2021 SCC OnLine Mad 2096; and Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1.], The Independent Thought case is a binding authority for several propositions including aspects concerning MRE. This judgment is also a precedent that is relied upon for the proposition that Section 376B of the Indian Penal Code and Section 198B of the Code create a separate and a more lenient penal regime when a separated husband subjects his wife to forceful sexual intercourse. In this regard, it is required to be noticed that initially, the Delhi High Court had dismissed the challenge raised to MRE because the petition filed by Independent Thought at the relevant time was pending adjudication before the Supreme Court of India. It was when Mr Gaurav Aggarwal, Advocate, for Independent Thought clarified to the Delhi High Court that the challenge before the Supreme Court was confined to married girl children aged between 15 to 18 years, that these petitions were taken up for hearing. [See order dated 08.09.2017 passed by the Delhi High Court.], The ratio decidendi of the Independent Thought case would apply while testing the constitutional validity of MRE as a whole. The propositions laid down by the Supreme Court of India in Independent Thought would also apply to all women i.e., wives who are aged 18 years and above. In support of this proposition, Ms Nundy relied upon the inversion test evolved by Professor Eugen Wambaugh (Harvard Law School); a test which was applied by the Supreme Court of India in a decision rendered in State of Gujarat v. Utility Users' Welfare Association, (2018) 6 SCC 21 at paragraph 113. This test was also cited with approval by a three‑judge bench of the Supreme Court of India in Nevada Properties (P) Ltd. v. State of Maharashtra, (2019) 20 SCC 11913 at paragraph 13., Applying the inversion test, it was submitted that Independent Thought case is an authority for the following propositions. (i) A woman cannot be treated as a commodity. She has every right to say no to sexual intercourse with her husband. (ii) Marriage to a victim does not make a rapist a non‑rapist. (iii) MRE creates an artificial distinction between married and unmarried women. (iv) Woman is not subordinate to or a property of a man. (v) The view that criminalising marital rape would destroy the institution of marriage is unacceptable since marriage is not an institution but personal – nothing can destroy the institution of marriage except a statute that makes marriage illegal and punishable. (vi) MRE is discriminatory as it creates an anomalous situation where the husband can be prosecuted for lesser offences but not rape. (vii) Removing MRE will not create a new offence since it already exists in the main part of the Indian Penal Code., Each of the aforesaid propositions laid down in the Independent Thought case is binding on the Delhi High Court; an aspect which comes to fore if the inversion test is applied. In other words, if each of these propositions were to be reversed, the Delhi High Court could not have reached the conclusion that it did in the Independent Thought case. Furthermore, even obiter as a matter of judicial propriety would be binding on the High Court. [See Peerless General Finance and Investment Co. Ltd. v. Commissioner of Income Tax, 2019 SCC OnLine SC 851 at paragraph 13.], There is no presumption of constitutionality in respect of a pre‑constitutional statute like the Indian Penal Code, even though it has been adopted and continued to remain in force after the Constitution was brought into force. Since MRE is a pre‑constitutional provision, Parliament's failure to remove it is a neutral fact. [See Joseph Shine at paragraph 270 and Navtej Singh Johar at paragraphs 359‑364.], As per Article 13, if a provision is found to be unconstitutional, the courts must act; holding that the matter is within the ken of the legislature is not a correct approach. [See Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India, (1992) 2 SCC 343, paragraphs 48 to 50; and Independent Thought, paragraphs 166 and 167.], The number of people affected or harmed by the impugned provisions cannot disentitle others from seeking relief from the Delhi High Court as this would be an irrelevant consideration while deciding upon the rights of parties. [See Shayara Bano, paragraphs 56 and 57 and Navtej Singh Johar, paragraph 34. Although, while ruling upon economic policies and statutes having financial implications, the court should employ restraint, this does not hold good for statutes dealing with civil liberties or those which infringe fundamental rights. Qua such statutes, the courts should play the role of activist. [See Govt. of A.P. v. P. Laxmi Devi, (2008) 4 SCC 720 at paragraph 88, and Govt. of A.P. v. G. Jaya Prasad Rao, (2007) 11 SCC 528.], MRE violates Article 14 of the Constitution. It creates three classes of victims and perpetrators though the act is similar i.e., forced sexual intercourse., The MRE is violative of Article 14 as it creates an unreasonable, discriminatory and manifestly arbitrary classification. Merely satisfying the test of intelligible differentia is not sufficient to pass muster of Article 14. To pass muster of Article 14, the impugned provisions must fall within the scope of the following facets of Article 14: there should be intelligible differentia between classes, and there must be a rational nexus with the legitimate objects sought to be achieved., MRE suffers from irrationality and manifest arbitrariness as it provides immunity from prosecution for rape to a man who has forcible sex with his wife but not to a man who has forcible sex with a woman who is not his wife. Furthermore, Section 198B of the Code and Section 376B of the Indian Penal Code provides qualified immunity; in the form of an increased threshold for cognizance and a lesser sentence in respect of a man separated from his wife. Such privilege of purported sanctity of an institution over the rights of individuals is manifestly arbitrary and is violative of Article 14. The mere existence of purported logic without a determining principle is not sufficient to protect the impugned provisions from being declared manifestly arbitrary. [See State of Bihar v. Brahmputra Infrastructure Limited, (2018) 17 SCC 444 at paragraph 7.], Moreover, if the purported rationale for retaining the impugned provisions has outlived its purpose or does not square with constitutional morality, the same should be declared manifestly arbitrary. [See Joseph Shine at paragraph 102.], Provisions of law that postulate institution of marriage that subverts equality is manifestly arbitrary and bad in law. [See Joseph Shine at paragraphs 168, 169 and 182.], The argument for retaining MRE is not supported by any determining principle. Those who support this view have not been able to establish how removing MRE is bad for marriage. There is no discussion found in legislative debates to support this view. There is also no reasoned dissent qua the recommendations made in this behalf by Justice Verma Committee Report. Therefore, the argument put forth that MRE finds mention in the statute to protect the institution of marriage is not an adequate determining principle. MRE is archaic and is based on an outdated notion of marital relationships that has no place in a just constitutional order., Although, there can be no doubt that there is an intelligible differentia between married, separated and unmarried persons, what the Delhi High Court is required to examine is whether the differentia between married and unmarried couples has a rational nexus with the object sought to be achieved, which is, to protect forced sexual intercourse within marriage. Therefore, if MRE is unconstitutional, whether qualified immunity extended to separated husbands under Sections 198B and 376B of the Indian Penal Code would survive. It is well established that the object of a statute determines its constitutionality. [See Nagpur Improvement Trust v. Vithal Rao, (1973) 1 SCC 500 at paragraph 26 and Subramaniam Swamy v. CBI, (2014) 8 SCC 682 at paragraph 58.], Pre‑constitutional object of MRE was to protect the conjugal rights of husbands after the enactment of the constitution has undergone a change. The object of rape laws as set out in post‑constitutional amendments to Sections 375 and 376 of the Indian Penal Code has been to protect women from violence and to secure for them sexual autonomy and right to bodily integrity. The object of post‑constitutional rape laws is briefly this: \no man should be able to force a woman to have sex with him without her consent\., MRE is flawed for the following reasons: It nullifies the object of the main provision and, hence, must fail. The object of the main provision is to criminalise rape. The purported defence put forward for retaining MRE i.e., protection of conjugal rights in the institution of marriage would destroy the object of the main provision. [See S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591 at paragraph 27 and Director of Education (Secondary) & Anr. v. Pushpendra Kumar & Ors., (1998) 5 SCC 192 at paragraph 8.], It places the privacy of marriage as an object above the privacy of the individual in the marriage. Parliamentary debates which make a vague reference to preserving the institution of marriage as justification for retaining MRE is a \neutral fact\. The courts need to examine whether this neutral fact should be held to be subsidiary and directly contrary to the explicit object of the legislation. The attempt to privilege the institution of marriage over the rights conferred on an individual i.e., the victim wife under Article 21 of the Constitution can only be regarded as an unconstitutional object. An individual victim wife's right not to be raped cannot be held hostage to an imposed conception of marriage. [See Joseph Shine, at paragraph 192.] And, therefore, while seeking to secure a victim‑wife's rights under Article 21 of the Constitution, the court can scrutinise the \intimate personal sphere of marital relationships\. [See Joseph Shine, at paragraph 218.], The purported protection of conjugal rights by not penalising forced sex within marriage is not a legitimate object post‑adoption of the Constitution as it does not align with the understanding of conjugal rights as it obtains today. [See John Vallamattom at paragraph 36.] Conjugal rights end where bodily integrity begins while enforcing a decree of restitution of conjugal rights between a married couple. Court can direct either party i.e., husband or wife to cohabit but it cannot force them to have sexual intercourse. Thus, refusal of either party to cohabit can only lead to attachment of property or imprisonment in civil prison. A spouse can even obtain a divorce in case of non‑compliance with the decree in his/her favour on the ground of cruelty. Therefore, by denying a spouse sex, a person's property and freedom may be at risk but not his/her bodily integrity. [See Section 9 of the HMA and judgment rendered by the Delhi High Court in Harvender Court v. Harmander Singh, AIR 1984 Del 66 as also the decision rendered by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 9015.] Therefore, the expression conjugal rights cannot include non‑consensual acts adverted to, say for example, in Clauses (a) and (b) of Section 375 of the Indian Penal Code. Conjugal rights as enforced via courts begin and end at cohabitation and consortium. Anything beyond this is reduced to the status of conjugal expectation only, the denial of which is the ground for divorce. The courts are unanimous in holding that sexual intercourse cannot be forced via a decree of restitution of conjugal rights. MRE, on the other hand, sanctions and indeed encourages husbands to have forced sexual intercourse with their wives., At present, the act of forced sexual intercourse can be punished only if ingredients of lesser offences under Section 354 and related but distinct offences under Section 498 and such other provisions of the Indian Penal Code are present. Via MRE, a husband gets sanction to enforce his conjugal right contrary to what the understanding of the law is without approaching the court. Thus, allowing a husband to enforce his conjugal expectation of sex by permitting him to have forced sexual intercourse with his wife without penal consequences is akin to saying that a wife who believes that she is entitled to maintenance, would have the right to sell her husband's personal belongings and property without his consent and thereupon appropriate the proceeds towards her maintenance., Unlike the United Kingdom, India has a written Constitution which lays great emphasis on fundamental rights. A statute or a provision of the statute that does not conform to Part III of the Constitution can be struck down by courts. This duty is cast on the courts by Article 13 of the Constitution. Macaulay's object in inserting MRE in the Indian Penal Code when the Constitution had not been adopted is liable to be struck down as it does not align with its ethos. The deference to the original statute ought not to be paid in perpetuity. The only legitimate object of the anti‑rape laws, at present, is to protect the bodily integrity and sexual autonomy of women., MRE seeks to make a dubious distinction between husbands and non‑husbands, insofar as perpetrators are concerned and likewise, between wives and non‑wives as regards victims. In the context of a forced sexual act it is construed as rape when committed by a person other than a husband but is deemed less than a rape when committed by a husband., The foundation of the arguments advanced on behalf of the respondents and intervenors is that there is an intelligible differentia between husbands and other persons who commit such acts which, in turn, has a rational nexus with the object of protecting the institution of marriage and preserving conjugal rights of the husband. In other words, this distinction lends support to the argument that MRE does not violate Article 14. This argument is flawed for the reason that every offence has three basic components i.e., the perpetrator, the victim and the act itself. These three components are present whether the offence is committed by a husband or a person other than the husband and, therefore, on all three counts, MRE should fail., Taking this argument forward, the husband may have an expectation and even an in‑principle agreement that there would be sex in marriage. Based on this it could be argued that there is an intelligible differentia on this basis between a husband and a person who is not a husband. However, MRE in law is flawed since it is not restricted to protecting the husband's expectation of sex but it elevates this expectation to the husband's right to have forcible sexual intercourse with his wife at any point in time and under any circumstances irrespective of her consent. Therefore, the expectation of sex cannot have rational nexus with the object sought to be achieved.
id_412	3	The distinction drawn between forced sexual intercourse by the husband and persons other than a husband is legally untenable as it has no rational nexus with the object sought to be achieved by Section 375 of the Indian Penal Code. [See Independent Thought at paragraph 75.], What is ironic is while Marital Rape Exception privileges a husband's right to fulfil his sexual desire as and when he wishes to exercise it, it effaces the wife's right not to engage in sexual acts. This by itself cannot stand constitutional scrutiny. [See Joseph Shine at paragraph 168; Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008) 3 SCC 116 at paragraphs 42 and 43; and Navtej Singh Johar at paragraph 438.], Insofar as the victim is concerned, this distinction also does not serve the object of Article 375. In both cases, the victim ends up being degraded and humiliated. [See Independent Thought at paragraph 72.] Therefore, if the inversion test is applied, the observations made in the said paragraph could be applied to these cases as well., In rape, the harm caused to the victim may vary and is independent of the relationship subsisting between the parties. For instance, if a woman is sleeping with a live-in partner and he presumes that there is consent, although wrongly, and commits a sexual act, the victim may choose not to prosecute the partner. The victim may ask her partner to obtain consent in future. However, for instance, where a victim is subjected to gang rape and one of the rapists is the husband, while all others who were part of the act would be liable for prosecution under Section 376 of the Indian Penal Code, the husband would be protected because of Marital Rape Exception. It cannot be the State's policy or in its interest to prosecute only some rapists and not those who are married to the victim in such cases., Marital Rape Exception grants blanket immunity to sexual acts enumerated in clauses (a) to (d) of Section 375 of the Indian Penal Code and also exempts husbands from the offence of aggravated rape. For example, rape which results in the victim's death or persistent vegetative state. [See Section 376A and Section 376D of the Indian Penal Code.], The protection under Marital Rape Exception extends to the extent that if the husband were to allow for the acts described in Clause (a) of Section 375 to be done to another person without the wife's will or consent, it will not constitute rape. Bundling these acts committed by the husband on his wife or allowing another person to commit acts described in Clauses (a) to (d) of Section 375 with another person with lesser offences such as cruelty, simple assault or grievous hurt, ring‑fences the husband without any legal or moral justification. Apart from anything else, the constitutionality of Marital Rape Exception has to be tested against the backdrop of the amendment made to the rape laws in 2013 and 2018., As per Explanation 2 to Section 375 of the Indian Penal Code, consent should be unambiguous, unequivocal and voluntary. Therefore, consent qua a prior sexual act will not extend to future occasions. [See judgment dated 03.11.2021 rendered by the Punjab and Haryana High Court in CRM‑M46063‑2021, titled Narendra Singh v. State of Haryana, and Syam Sivan v. State of Kerala, 2021 SCC OnLine Ker 4307.], Expectation and broad agreement to have a sexual relationship in marriage cannot do away with the wife's right to withhold consent as otherwise, it would result in giving the husband a pass‑through to have sexual intercourse with his wife even when she is sick or has contracted a disease or is injured., Consent is foreground in the Indian Penal Code in provisions concerning sexual intercourse. [See Navtej Singh Johar in the context of Section 377 of the Indian Penal Code and Joseph Shine in the context of Section 497 of the Indian Penal Code.], The difference between the language of Section 377 and Section 375 is that in the former, the element of consent is absent. An act of forced sexual act as provided in Section 375, Clauses (a) to (d) of the Indian Penal Code irrespective of who commits it, is rape. The relationship between perpetrator and victim cannot change that fact. Rape is rape and, therefore, one should fairly label the offence for what it is. [See Independent Thought at paragraph 75.], 'Fair labelling' is an important part of criminal law jurisprudence. The label should give sufficient information to the public at large as regards the offence that is committed. It plays an educative and declaratory function and, thus, in a way, reinforces the standards that the society may have set for itself. It also helps in establishing the principle of proportionality as the criminal justice system needs to provide for punishment that is proportionate to the gravity of the offence. A fair label plays an important role in expressing social disapproval of certain sorts of sexual offences; rape being one of them. Thus, it helps, in a sense, the perpetrator, the victim as also the prosecution and the defence in grappling with the offence and its consequences. Fair labelling enables criminal justice professionals, judges and other stakeholders to make fair and sensible decisions. [See Andrew Ashworth & Jeremy Horder, Principles of Criminal Law, Seventh Edition, 2003 at page 25; Scottish Law Commission's Discussion Paper on Rape and other Sexual Offences, at paragraph 4.16; also see State of Karnataka v. Appa Balu Ingale & Ors., 1995 Supp (4) SCC 469.], The attempt of the prosecution to seek conviction for rape in the guise of grievous hurt or cruelty is like attempting to fit a square peg in a round hole. The ingredients of offences such as grievous hurt, outraging the modesty of a woman and cruelty are substantially different from that of rape. Over the years, rape laws in India have evolved to the extent that victims are entitled to protection and support from the State. However, because marital rape is not called out as rape; generally, it enables States to shirk responsibility and accord the same level of care and protection which is given to a woman who is raped by a person other than her husband. [See the following provisions contained in the Code: Section 357A (Compensation to all victims of crime); Section 357C (all hospitals to provide free and immediate first aid to rape victims); Section 164A (protocols of medical examination for rape victims); Section 154 (recording complaint of rape victim); Section 164 (manner of recording statement of a rape victim); Section 309 (expedited trial in rape cases); Section 327 (in camera trials of rape offences); Section 53A (medical examination of the rape accused if it is believed that such examination will afford evidence of the commission of an offence)]. Likewise, Section 228A of the Indian Penal Code protects the rape victim by penalizing disclosure of her identity. Similarly, the proviso appended to Section 146 of the Evidence Act prohibits eliciting evidence or putting questions in cross‑examination to the victim as to her “general immoral character” or “previous sexual experience” for establishing consent or the quality of consent., Furthermore, criminal laws such as the Indian Penal Code penalize wrongful acts and punish the wrongdoer, if found guilty. Marital Rape Exception allows the wrongdoer i.e., the husband to escape the consequences that the law provides, although, the act, otherwise, is wrongful., Criminal law in India recognizes the principle of cognate offences. Such offences indicate the similarity and common essential features between the offences; they primarily differ based on the degree of the offence. Non‑consensual sexual act within the meaning of Clauses (a) to (d) of Section 375 of the Indian Penal Code may not be covered under cognate or lesser offences if it is not accompanied by physical violence or hurt inflicted on the body of the victim. In the case of a married woman, the power which is otherwise available vis‑à‑vis the alleged rapist under Section 53A of the Code of Criminal Procedure i.e., examination of the blood, bloodstains, semen and swab unless done, will not in all likelihood lead to the conviction of the husband under cognate provisions. Thus, non‑consensual sexual intercourse which is not accompanied by physical violence may disable a married woman from prosecuting her husband for cruelty under Section 498A, for hurt under Section 323 and 326 or for outraging her modesty under Section 354 of the Indian Penal Code. The crux of the challenge to Marital Rape Exception is the moral and legal approbation attached to the act of rape., Marital Rape Exception violates Article 14 of the Constitution as the relationship between the perpetrator and the victim has no rational nexus with the object of the rape laws., Woman's right to physical integrity flows from her right to life, dignity and bodily privacy protected under Article 21. The right to make reproductive choices is a dimension of personal liberty; which means, a woman has a right to refuse participation in sexual activity. [See Suchita Srivastava v. Chandigarh Administration, (2009) 9 SCC 117 at paragraph 22; affirmed in K.S. Puttaswamy at paragraph 83.], Gender violence is often treated as a matter concerning family honour; privacy must not be a cover for concealing or asserting patriarchal mindsets. [See K.S. Puttaswamy at paragraph 245.], Marital Rape Exception is founded on a stereotypical understanding of ascribed gender roles in marriage. This would render it discriminatory under Article 15 of the Constitution. Marital Rape Exception dilutes agency, bodily autonomy and protections accorded by law to women in marital relationships who are subjected to rape and is, thus, violative of Article 15(3) of the Constitution. [See Independent Thought at paragraphs 180 and 181.], Since Marital Rape Exception forms part of a statute which is pre‑constitutional and, therefore, there is no presumption of constitutionality and because there is an ex‑facie infringement of a married woman's fundamental rights under Article 15(1) of the Constitution, the burden of proof shifts onto the State to demonstrate that the statute is constitutional., In consonance with the strict scrutiny test, the State should demonstrate that: the impugned provision is intra vires the Constitution; infringement of woman's rights via the impugned provisions serves a compelling State interest; the infringement is proportionate; and lastly, it is not only narrowly tailored but is also the least restrictive measure adopted to progress the State's interest and the object it seeks to achieve. [See Anuj Garg at paragraphs 46, 47, 50 & 51 and Naz Foundation v. Government of NCT of Delhi, 2009 SCC OnLine Del 1762 at paragraphs 108, 111, 112; also see Subhash Chandras & Anr. v. Delhi Subordinate Services Selection Board, (2009) 15 SCC 458 at paragraph 82; Independent Thought at paragraphs 83 and 84, and Navtej Singh Johar at paragraph 314.], Marital Rape Exception fails the strict scrutiny test. There can be no compelling State interest in protecting husbands who facilitate gang rapes of their wives or rape their wives by insertion of objects or have forced penile‑vaginal intercourse as none of these acts further either the institution of marriage or can be called conjugal rights of a husband., Even if one were to accept that there was a State interest in protecting the institution of marriage, deeming non‑consensual sex within marriage to be legal and the consequential harm it entails upon the victim is in no way proportionate to such interest, if any, of the State., Nothing that the State i.e., the Union of India has filed by way of counter‑affidavits and/or affidavits from time to time and written submissions discharges this onus placed upon it., Marital Rape Exception is also liable to be struck down on the ground that it violates Article 19(1)(a) of the Constitution. Article 19(1)(a) of the Constitution guarantees freedom of expression to all citizens. Intimate sexual acts are a part of an individual's right to freedom of expression, albeit, subject to reasonable restrictions contained in sub‑clause (2) of Article 19. [See Navtej Singh Johar, at paragraph 641.1.], Marital Rape Exception fails to label forced sexual intercourse as rape and to protect to the full extent a woman's non‑consent. The impugned provisions do not recognize the right of a woman to say “no” to sexual intercourse with her husband and as a logical sequitur, these provisions also take away a married woman's ability to say a “joyful yes” to sexual intercourse. Both aspects put Marital Rape Exception at cross‑purposes with Article 19(1)(a) of the Constitution and, thus, limit the married woman's right to freedom concerning sexual expression and behaviour. [See R. v. J.A., (2011) 2 SCR 440, Supreme Court of Canada, at paragraph 114.], The right to sexual expression applies to an adult woman. Marital Rape Exception reduces a wife's sexual desire and consent to a nullity. Marital Rape Exception also does not fall under the eight grounds that Article 19(2) allows as reasonable restrictions. Out of the eight grounds, only one ground can, if at all, remotely apply to Marital Rape Exception i.e. decency or morality and therefore, this restriction should be read in consonance with constitutional morality. An individual's sexual desire is part of self‑expression and is protected under Article 19(1)(a) and, thus, Marital Rape Exception cannot be justified on the ground of morality. [See National Legal Services Authority (NALSA) v. Union of India (2014) 5 SCC 438 at paragraph 69; and Navtej Singh Johar at paragraph 641.1.], Striking down Marital Rape Exception would not create a new offence. An offence is an act or omission punishable under the Code. The offence of rape under the Indian Penal Code is an act of forcible/non‑consensual intercourse, as described in Clauses (a) to (d) and circumstances First to Sixthly set out in Section 375 of the Indian Penal Code, by a man on a woman which is not dependent on the relationship between the perpetrator of the crime and the victim of the act. Thus, any act falling within the ambit of the aforesaid provisions would constitute an offence of rape. Marital Rape Exception grants impunity from prosecution for the very same offence for a particular class of offenders i.e. husbands. Therefore, if Marital Rape Exception is struck down, it would not create a new offence. It would only bring within the ambit of the existing offending acts a new class of offenders i.e., husbands. [See Independent Thought at paragraphs 190 to 194.], Striking down a provision as it is unconstitutionally under inclusive, will not tantamount to the creation of a new offence. [See People v. Liberta, (1984) 64 N.Y.2d 152, New York Court of Appeals and State of Gujarat v. Ambika Mills, (1974) 4 SCC 656], The law distinguishes creation of a new offence and interpretation of constituents of an existing offence which is the traditional negative act of judicial review. [See Hiral P. Harsora v. Kusum Narottamdas Harsora, (2016) 10 SCC 16521 at paragraph 50; Balram Kumawat v. Union of India, (2003) 7 SCC 628 at paragraphs 4, 5, 23, 36, 37 & 40 and Devidas Ramchandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 at paragraphs 108 & 141.] Therefore, while adjudging the constitutional validity of a provision, the court deems it fit to strike it down and because of this, a new class of offenders get included within the ambit of the provision, this would not amount to the creation of a new offence as it is only a by‑product of the court fulfilling its duty under Article 13. What would amount to creating a new offence would be if the court is called upon to alter the main ingredients of the act constituting a new offence., Thus, “offence” pivots on the act or omission and not the offender per se. An offence may include a perpetrator, victim, as also, the act but what is punishable under the Indian Penal Code is the act or the thing done. [See Section 40 of the Indian Penal Code and Section 2(n) of the Code of Criminal Procedure. Also see Queen‑Empress v. Kandhaia & Ors., 1884 SCC OnLine All 142 and S. Khushboo v. Kanniammal & Anr., (2010) 5 SCC 600 at paragraph 30.] The submission is that the offence of rape is an act of forcible/non‑consensual intercourse, as described in Clauses (a) to (d) and circumstances Firstly to Sixthly, by a man upon a woman which is entirely separate from the relationship obtaining between the perpetrator and the victim of the act. Therefore, it is the act which falls within the ambit of the provision which would constitute the offence of rape., Unconstitutional exception provided in a statute cannot have a free pass from judicial review on the ground that its removal would result in the creation of a new offence. [See Motor General Traders v. State of Andhra Pradesh, (1984) 1 SCC 222, at paragraphs 26 and 28]., The apprehensions expressed by Men's Welfare Trust and those opposing the petitioners that the burden of proof in certain cases, say, offences falling under Section 376(2)(f) may shift in case Marital Rape Exception is struck down, is unfounded. Since Marital Rape Exception was on the statute when the said provision was inserted, the courts would take recourse to the mischief rule or apply the principles of purposive construction and could thus hold the expression “relative” would not bring by default a spouse within the ambit of Section 376(2)(f). The courts could also apply the doctrine of noscitur a sociis and hold that since the expression “relative” appears in the company of expressions such as “guardian” and “teacher” or a person in a position of “trust” or “authority”, the only relationship which would get covered under the expression “relative” could be that where the accused is in a position of power over the complainant akin to fiduciary trust., However, other aggravated forms of rape such as those covered under Sections 376A (results in death or persistent vegetative state of the victim) and 376D (gang‑rape) go unpunished insofar as the husband is concerned will be punished in case Marital Rape Exception is struck down., The argument that if the Marital Rape Exception is struck down, the provisions concerning rape will be misused is devoid of any empirical data. In fact, the most recent data (2015‑2016) of the National Family Health Survey reveals that 83 % of married women falling between the age bracket 15‑49 years were victims of sexual violence committed by their current husbands while 9 % were subjected to violence by their former husbands., Furthermore, the analysis of NFHS data reveals that nearly 99.1 % of sexual violence cases are not reported and in most such instances, the perpetrator is the husband of the victim. This data also reveals that a woman is 17 times more likely to face sexual violence from her husband than from others. Besides this, even after cases involving marital rape and assault are excluded, the data reveals that only 15 % of sexual offences committed by persons other than the current husband of the victim are reported to the police. It is important to emphasize that there are enough and more safeguards available in the Indian Penal Code to protect those who bear the brunt of a false criminal complaint being lodged against them. Provisions concerning these safeguards are found in Chapters X and XI of the Indian Penal Code [see Sections 182, 191 and 211 of the Indian Penal Code]., The other argument raised on behalf of the respondents which is that striking down Marital Rape Exception would expose the husbands to the risk of being awarded a high mandatory minimum sentence of ten years punishment is an argument that deserves to be rejected at the very threshold. This is so as sentencing is a matter of policy which does not fall within the realm of the court. The minimum mandatory sentence for an offence such as rape cannot be a consideration or factor in determining as to whether or not Marital Rape Exception is constitutionally viable. It is the court's bounden duty to strike down a provision which is unconstitutional notwithstanding the concerns that may be raised over its perceived (dis)proportionality. That said, it is a matter of concern for several women that high mandatory minimum sentences even in the context of non‑marital rape do not serve the cause of women but instead lead to lesser reporting of the offence and fewer convictions. A study of judgments concerning the offence of rape rendered by trial courts in Delhi between 2013 and 2018 revealed that under the old law, the conviction rate was 16.11 % whereas after the Criminal Law (Amendment) Act, 2013, the conviction rate fell to 5.72 %. The drop in conviction rate is significant and of grave concern. The sentencing policy, perhaps, needs a relook, both, by the government of the day and the parliament. The uptick in the mandatory minimum sentence has usually followed a heinous crime. The 1983 amendment introduced a mandatory seven years minimum sentence following the Mathura rape case. Likewise, the Nirbhaya gang rape triggered the Criminal Law (Amendment) Act, 2013 and inter alia resulted in increasing the minimum mandatory sentence to ten years., Thus, the mere existence of a high mandatory minimum sentence may result in problems regarding sentencing in all cases of rape. [See Narinder Singh v. State of Punjab, (2014) 6 SCC 466 at paragraphs 14 and 15.] Therefore, while the mere existence of a high mandatory minimum sentence cannot be the basis for striking down the entire provision concerning the offence of rape, the converse should also hold true. In other words, the existence of a high mandatory minimum sentence provided in Section 376(1) of the Indian Penal Code should not be the reason for not striking down Marital Rape Exception since a rapist remains a rapist irrespective of the relationship with the victim and the harm caused to the victim is independent of the relationship between the parties. [See Justice Verma Committee Report at paragraph 77.], The submission is that the sentence imposed for rape whether within or outside marriage must be proportionate to the gravity of the offence, harm caused to the victim and other facts and circumstances obtaining in the matter. The high mandatory minimum sentence presently prescribed for the offence of rape may not meet the proportionality concerns articulated above. That said, these concerns cannot be the ground for refusing to strike down Marital Rape Exception. Courts both in India and abroad have made recommendations to the legislature regarding sentencing issues in the context of the offence of rape is discernible from the following judgments: Tulshidas Kanolkar v. State of Goa, (2003) 8 SCC 590; and the judgments rendered by the Supreme Court of Nepal in Forum for Women, Law and Development v. His Majesty's Government of Nepal & Ors. [Writ No. 55 of the year 2058 and Jit Kumari Pangeni and Ors. v. Govt. of Nepal (Writ No.064‑0035 of the year 2063 (July 10, 2008)).], While Men's Welfare Trust has taken a position different from that of the petitioners insofar as striking down impugned provisions is concerned, another men's forum i.e., Forum for Engagement of Men (FEM) has supported the plea of the petitioners. [See paragraphs 1, 2 and 3 of FEM's application.], There is no discretion available to the Supreme Court of India when concerns regarding the violation of fundamental rights are raised before it. It is obligatory on the part of the court to exercise its powers under Article 226 if the violation of fundamental rights is established. Therefore, the argument that striking down Marital Rape Exception would lead to misuse, abuse, inconsistencies with social morality or such a move would be contrary to the legislative intent or would result in the imposition of high mandatory sentences on husbands are aspects which should not prevent the court from striking down Marital Rape Exception if it is ultimately found to be ultra vires the Constitution. Article 226 has two parts: The first part concerns the enforcement of fundamental rights under Part III of the Constitution. The second part gets triggered when a litigant approaches the constitutional court for purposes other than enforcement of rights contained in Part III of the Constitution. The discretion to grant or not to grant relief obtains, if at all, only in respect of the second part of Article 226. There is no discretion available to the court where a plea is made for enforcement of fundamental rights under Part III of the Constitution., Like in the case of Men's Welfare Trust, Forum for Engagement of Men which is a forum for men that supports the cause of the petitioners. On behalf of FEM, Mr Raghav Awasthy made brief submissions, which have not been recorded specifically, to avoid prolixity, as they stand encapsulated in the submissions advanced by Ms Nundy., The submissions advanced by Ms Rebecca John, learned senior counsel, can be broadly paraphrased as follows:, Indian Penal Code distinguishes general and special exceptions. General exceptions are contained in Chapter IV of the Indian Penal Code while special exceptions are embedded in the relevant penal provision. Marital Rape Exception i.e. Exception 2 to Section 375 of the Indian Penal Code falls in the category of a “special exception” to the offence of rape., The burden of proving that the act committed falls within the realm of exception lies upon the accused. [See Section 105 of the Evidence Act.] Ordinarily, the person taking recourse to a special exception must prove that his act falls within the said exception; the standard of proof being the preponderance of probability. [See K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 at paragraph 18; Dahyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR 1964 SC 1563 at paragraphs 5 to 7 and Harbhajan Singh v. State of Punjab, AIR 1966 SCC 97 at paragraphs 13 to 15]., Exceptions contained in the Indian Penal Code are based on subjective and/or objective facts. Illustratively, Sections 78 and 82 of the Indian Penal Code are acts which are based on objective facts. In contrast, for example, the exceptions to the offence of defamation provided under Section 499 of the Indian Penal Code are based on facts that are subjective and, therefore, must be pleaded and proved in a court of law., Thus, exceptions based on objective facts prohibit prosecution. Marital Rape Exception (i.e. Exception 2 to Section 375 of the Indian Penal Code) does not have to be pleaded or proved unless the existence of marriage itself is in dispute., The legislative history of Marital Rape Exception would show that it was incorporated to protect the conjugal rights of the husband and after considerable debate, it protected wives below 10 years of age from forcible sexual abuse. Thus, even before the preparation of the draft penal code by Lord Thomas B. Macaulay in 1837, the common law excluded the wife's consent from the sphere of sexual acts. The common law position is traceable to the Doctrine of Coverture and implied consent. According to this doctrine, the legal rights of a woman were effaced after marriage. A woman having entered matrimony was deemed as having given irrevocable consent to participation in sexual acts with her husband. [See Hale's Doctrine.], In this context, our attention was also drawn to how the parameters concerning age were incorporated in Exception 2 to Section 375 of the Indian Penal Code commencing from 1837 (when there was no provision for age in the exception) up until 2017 when the Supreme Court rendered its decision in Independent Thought case., Our attention was also drawn to the legislative history concerning sexual offences as it prevailed in the United Kingdom commencing with the amendment made to the Sexual Offences Act, 1956 via the Sexual Offences (Amendment) Act, 1976 and the view expressed by the House of Lords qua Marital Rape Exception in R. v. R., 1991 UKHL 12: 1991 (4) All ER 481., The impact of the decision rendered in R. v. R. was also brought to our notice by referring to Section 142 of the Criminal Justice and Public Order Act, 1994., Going further, Ms John made the following submissions: (i) Marital Rape Exception renders a married woman remedy less when she is subjected to an offence of rape by her husband. It disregards the wife's right to consent to sex within marriage.
id_412	4	Resultantly, while Section 375 criminalizes sexual acts committed without the consent of a woman, it exempts husbands from being prosecuted only on account of their marital relationship with the victim. The Marital Rape Exception infringes the fundamental rights of a married woman. The validity of the Marital Rape Exception has to be tested not with reference to the object of the State action but based on its effect on freedoms guaranteed under the Constitution. See K.S. Puttaswamy. The Marital Rape Exception takes away a married woman's sexual agency. The provision subordinates the wife vis-à-vis her husband in the context of the marital arrangement obtaining between them. The Marital Rape Exception is, therefore, manifestly arbitrary. See observations made in Joseph Shine which struck down Section 497 of the Indian Penal Code and, thus, decriminalized adultery. The antiquated notion of marriage as articulated more than 200 years ago needs to be changed. The common law understanding of marriage which was engrafted in the Indian Penal Code should be judicially discarded as has been done in the United Kingdom, the country from which the doctrine was borrowed in the first instance. Constitutional courts must intervene when structures of injustice and persecution deeply entrenched in patriarchy destroy constitutional freedom. In doing so, the High Court of India would not be adopting a paternalistic approach but would be fulfilling its duty to give effect to the rights already enshrined in the Constitution., The striking down of the Marital Rape Exception would not lead to the creation of a new offence. Although there are several provisions in the Indian Penal Code which deal with offences committed against married women by their husbands, they do not address the crime concerning non‑consensual sex between a husband and a married woman. In this regard, attention is drawn to Sections 498A, 304B, 306, 377 of the Indian Penal Code; the presumptions created in law under Sections 113A, 113B of the Evidence Act; Sections 3 of the Dowry Prohibition Act, 1961; Section 3 of the Domestic Violence Act; and Section 24 of the Pre‑conception and Pre‑natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994., The aforementioned provisions criminalize and punish a variety of crimes committed by a husband against his wife, including physical violence, mental cruelty, and dowry demand. Remedies are also available to a woman against abuse of physical, sexual, verbal or emotional nature under the Domestic Violence Act. Procedural rules of evidence create a presumption against a husband in the event of the unnatural death of a married woman or in a case involving the unlawful determination of the sex of a foetus. None of these provisions, as indicated above, bring within its ambit forced sexual acts committed by the husband on his wife. Likewise, Section 498A does not cover non‑consensual sex. The statement of objects and reasons of the Criminal Law (Amendment) Act, 1983, whereby Section 498A was incorporated, establishes that it was introduced to deal with the specific evil of dowry deaths and marital cruelty inflicted by the husband or the in‑laws on a married woman for dowry. The expression “cruelty” as defined in Section 498A does not bring within its ambit non‑consensual acts committed within marriage., In criminal law, offences are separately and distinctly defined. There is no overlap between provisions created to address crimes against women and the offence of non‑consensual sex within marriage. Each of the aforementioned special statutes, framed for the protection of a married woman, deals with specific crimes. The crime of rape is outside the purview of those provisions. A perusal of the Statement of Objects and Reasons of the Domestic Violence Act, the Dowry Act and the Criminal Law (Amendment) Act, 1983 would establish that the argument advanced by the respondents that equal and alternative remedies are available in law to wives concerning forced sex within marriage is flawed. Assuming, without admitting, that equal and alternate remedies exist, specific beneficial provisions carved out in law to protect the interests of a woman victim under Section 228A of the Indian Penal Code; Sections 26, 53A, 154, 157, 161, 164, 164A, 309, 327 and 357C of the Code of Criminal Procedure; and the proviso appended to Section 146 of the Evidence Act would still not be available to a married woman., International conventions can be read into domestic law, especially for construing the contours of domestic law when there is no inconsistency between the international convention and domestic law. See Vishaka at paragraph 14 and Independent Thought at paragraph 34. Furthermore, India's obligation under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires that the Marital Rape Exception should not remain on the statute. Relevant references include CEDAW (37th Session, 2007) concluding comments on India at paragraphs 22 and 23; CEDAW (58th Session, 2014) concluding observations at paragraph 11(c); CEDAW (47th Session, 2021) United Nations Special Rapporteur on Violence Against Women, Dubravka Šimonović, observations on rape as a grave, systematic and widespread human rights violation at paragraphs 22, 36, 69, 70‑72; the Model Rape Law framework at serial no. V, Article 2, paragraph 17; and other UN reports on violence against women., Provisions in the Indian Penal Code which provide for exceptions on account of marital relationships are based on crimes committed outside marriage and not a crime committed by one spouse upon the other. Sections 136, 212, 216 and 216A of the Indian Penal Code illustrate this distinction. Even if it is accepted that the Indian Penal Code recognizes marital relationship as distinct from other relationships, no rational nexus is discernible between the exception carved out in Section 375 and the object sought to be achieved by that provision, namely to punish persons who commit the offence of rape on a woman. Therefore, the differentiation between a married and unmarried woman has no rational nexus with the object of the provision., It is time to revisit the validity of the Marital Rape Exception. Several countries have done away with the exception, and after the Nirbhaya gang‑rape case, the Criminal Law (Amendment) Act, 2013, incorporated recommendations of the Justice Verma Committee, including a recommendation for deletion of the Marital Rape Exception. Since then, judicial opinion in India has moved perceptibly towards recognizing the autonomy and sexual agency of an individual, including that of a married woman. See Nimeshbhai Bharatbhai Desai v. State of Gujarat, 2018 Supreme Court Cases Online Gujarat. The Marital Rape Exception is anachronistic and offensive; it has no place within the constitutional framework as it operates in India today. Accordingly, the plea for striking down the Marital Rape Exception, Exception 2 to Section 375 of the Indian Penal Code, Section 376B of the Indian Penal Code and Section 198B of the Code of Criminal Procedure must be granted., Ms. John suggested that a high minimum mandatory sentence has not led to an increase in conviction rates. She proposes that the legislature reduce the period of mandatory minimum punishment and restore the discretion that courts had in matters of sentencing before the Criminal Law (Amendment) Act, 2013. Before that amendment, the court had discretion to impose a sentence of imprisonment less than the prescribed period of seven years. Reference was also made to the sentencing regime in the United Kingdom, governed by the Coroners and Justice Act, 2009 and the guidelines of the Sentencing Council under that act., If the Marital Rape Exception is struck down, a husband cannot be brought under Section 376(2)(f) of the Indian Penal Code, which deals with aggravated rape committed while the victim is in the custody of the perpetrator or holds a position of trust or authority. Clause (f) of sub‑section (2) to Section 376 should exclude the husband, having regard to the context in which the expressions “relative”, “guardian” or “teacher” are used., Mr. Rajshekhar Rao, learned senior counsel, submitted that the argument that the High Court should defer to the legislature or that the court is an improper forum for adjudication is liable to be rejected. The submission is flawed because it disregards the nature of the relief sought by the petitioners and ignores the power available to the High Court under Article 13 read with Article 226 of the Constitution, which empowers High Courts to strike down laws inconsistent with fundamental rights. Constitutional courts have an obligation to declare laws unconstitutional when legislatures have been lethargic despite expert recommendations. While examining the validity of a provision, courts should apply the “effect test” to ascertain whether an artificial distinction is created between different classes of persons. The role of the constitutional High Courts becomes particularly significant as they are obliged to ensure gender equality and provide mechanisms for women to redress grievances related to gender‑based violence. See Aparna Bhat v. State of Madhya Pradesh, (2021) Supreme Court Cases Online SC 230., The petitioners argue that a married woman should be treated on par with other women, be accorded protection for her bodily integrity, recognition of her sexual agency and the right to prosecute the rapist irrespective of her relationship with the offender. While courts must give wide latitude to the legislature concerning statutes dealing with fiscal and economic matters, the approach is different when it concerns civil liberties and human rights. The petitioners seek the intervention of this High Court to strike down an unconstitutional provision, not to amend a policy decision. Consequently, the instant petition falls squarely within the ambit of Article 226 of the Constitution. See Laxmi Devi., The Marital Rape Exception fails the Article 14 test. The argument that a differentia between married and unmarried couples justifies the exception is flawed because classification based on intelligible differentia must have a rational nexus with the objects sought to be achieved. See State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125. While this test is easily applicable to the object of a statute as a whole for special enactments, the purpose of the specific provision becomes relevant for general enactments such as the Indian Penal Code. Within the same legislation, marital status may be used as a basis for classification in multiple sections, for example Sections 136, 212, 216 and 216A of the Indian Penal Code. The differentia may satisfy the test in one case but not in another such as the Marital Rape Exception. In the present case, the test can be applied to Section 375 in its entirety or more narrowly to Exception 2 appended to it. Since an exception or proviso cannot subsist independently nor nullify the object of the main provision, the test should be applied to Section 375 as a whole, revealing that the differentiation between married and unmarried couples is both irrelevant and arbitrary., The purpose of Section 375 of the Indian Penal Code is to punish non‑consensual sexual acts. Marital obligations, duties, rights or privileges cannot be enforced through violence or any other non‑consensual act, which would otherwise be an offence. Consequently, the classification between marital and non‑marital relationships in Section 375 is impermissible under Article 14 of the Constitution. The fact of marriage does not convey willingness or consent to engage in sexual intercourse as described in Clauses (a) to (d) of Section 375. Therefore, the substance of the marital relationship between the offender and the victim is irrelevant for the purposes of Section 375. In the absence of an explicit alteration in the nature of consent required in a marital relationship, the court should not discover an undisclosed reason for classification that is hostile and discriminatory towards a married woman victim., The absence of consent is the foundation of the offence of rape under Section 375. Decriminalising an act by a husband that would otherwise constitute rape is based on an archaic belief that marriage contemplates perpetual consent by the wife, which is inconsistent with applicable law. Such a presumption concerning consent is manifestly arbitrary and constitutes a gross denial of equal protection of laws to a married woman. See Lachhman Dass v. State of Punjab, (1963) 2 SCR 353; Independent Thought; Shayara Bano., The importance of consent finds legal recognition under the Indian Penal Code itself, including offences in Chapter XVI affecting the human body that could be precursors to non‑consensual marital intercourse or deal with its consequences, such as Section 354A (sexual harassment), Section 319 (hurt), Section 339 (wrongful restraint), and Section 313 (causing miscarriage without woman's consent)., The classification based on marital status creates an anomalous situation by giving a married woman lesser protection against non‑consensual sexual intercourse by her husband than against strangers or cohabitees. This defeats the argument that the exception seeks to protect the institution of marriage. The Indian Penal Code also recognises that an act perpetrated by a person in a position of trust is more egregious than one done by a stranger. See Section 376(2)(f)., The argument that the exception needs to be retained to preserve the institution of marriage is flawed. First, the law itself recognises that it cannot force parties to have sexual intercourse even if they are married; orders for restitution of conjugal rights can only be enforced by attaching property. See Order XXI Rule 32 of the Code of Civil Procedure, 1908 and Saroj Rani. Second, forced sexual intercourse in marriage, far from preserving the institution, reflects what marriage ought not to be. Marriage denotes a partnership of equals with reasonable marital privileges for both spouses, but reasonable expectations cannot be equated with willingness or consent by default. See Joseph Shine; Indra Sarma v. V.K. Sarma, (2013) 15 SCC 755; State of U.P. v. Chhotey Lal, (2011) 2 SCC 550., Marriage is no longer considered sacred or sacrosanct as in the past. Legislative provisions for divorce and judicial separation support this conclusion. See Sections 10 to 13B of the Hindu Marriage Act; Sections 23 and 24 of the Special Marriage Act; Sections 32 and 34 of the Parsi Marriage and Divorce Act, 1936; and Sections 10, 10A and 23 of the Divorce Act, 1869. Furthermore, procreation is not the only purpose of marital intercourse; impotence rather than sterility makes a marriage voidable. See Section 12(1)(a) of the Hindu Marriage Act. This reinforces the statutory recognition of the right of a wife to expect a healthy sexual relationship with her spouse, which is presumed consensual., The contention that striking down the Marital Rape Exception would destroy the institution of marriage is meritless since the husband can be prosecuted for several other offences in relation to the act. The argument that the subsistence of the marital relationship makes it difficult to ascertain willingness or consent must be rejected as irrelevant to the trial and evidentiary procedure. Courts must separate the grain from the chaff when appreciating evidence in sexual offence cases, whether within or outside marriage. Even if the Marital Rape Exception is struck down and rape by a husband is criminalised, courts will continue to appraise evidence. Denying a married woman the right to call a rape a rape would strike at the core of her right to life and liberty guaranteed under Article 21 of the Constitution. Independent of the challenge under Article 14, the provision violates Article 21., The act of non‑consensual sexual intercourse or rape is abhorrent and violative of the basic right to life and liberty guaranteed by Article 21 in any context. It causes deep psychological, physical and emotional trauma and is an offence against society at large. It violates the woman's right to equality, dignity, bodily integrity, personal and sexual autonomy, bodily and decisional privacy, and reproductive choices. See Moti Lal v. State of Madhya Pradesh, (2008) 11 SCC 20; State of Punjab v. Gurmit Singh, (1996) 2 SCC 384; Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490; State of Haryana v. Janak Singh, (2013) 9 SCC 431; NALSA; Joseph Shine; K.S. Puttaswamy; Z. v. State of Bihar, (2018) 11 SCC 572; and Suchita Srivastava., Rape is rape and a rapist remains a rapist; no classification can alter that reality. Every woman, including a sex worker, is entitled to decline consent and prosecute for rape, a right not available to a married woman under the Marital Rape Exception. The effect of the exception is to render the wife's lack of consent irrelevant, preventing her from prosecuting her husband for rape. Suggesting that the husband can be prosecuted under other provisions such as assault (Section 351), sexual harassment (Section 354A) or outraging modesty (Section 354) trivialises an act with grave psychological and physical consequences. Therefore, the Marital Rape Exception deserves to be struck down., If the provision is violative of fundamental rights, the court cannot wait for the legislature to intervene. The court is duty‑bound to invalidate a provision that infringes an individual's fundamental rights guaranteed under the Constitution. See Independent Thought; Shayara Bano; Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600., It is fallacious to contend that the court cannot strike down the Marital Rape Exception because it would result in discrimination against men due to the gendered nature of Section 375. The issue is not whether Section 375 should be made gender‑neutral but whether the exception is justifiable and tenable in law. Article 15 mandates positive discrimination in favour of women, and several statutes, including Section 375, carry this ethos forward. The challenge is restricted to unreasonable classification against women, and the High Court is empowered to strike down the exception on the ground that it violates Article 14. Making the provision gender‑neutral would amount to the court stepping into the shoes of the legislature, which is best avoided., Striking down the Marital Rape Exception will not create a new offence. Its removal on the ground that it is discriminatory and unconstitutional will simply bring within the fold of offenders a category presently not subjected to the rigour of rape law. The act of rape remains punishable, and the striking down does not criminalise a new behaviour. There will be no violation of Article 20(1) as the striking down would operate prospectively. Courts have in the past expanded the application of existing offences by revoking exemptions granted to a class or by removing differences in sentences in different classes. See Harsora v. Harsora; Mithu., The continuation of the Marital Rape Exception is contrary to India's obligations under Articles 1, 2, 5 and 16 of CEDAW, which require elimination of all forms of discrimination against women, particularly in relation to marriage. Nations that are signatories to CEDAW are required to repeal national penal provisions that give effect to discrimination against women. Courts are required to give effect to obligations undertaken under international conventions. See NALSA; Navtej Singh Johar; People's Union of Civil Liberties v. Union of India, (1997) 3 SCC 433; Apparel Exports Promotion Council v. A.K. Chopra., Courts in various jurisdictions have recognised that exemptions from prosecution for rape based on marital relationship are antiquated and should no longer be available as a defence. See R. v. R.; People v. Liberta; FWLD (Nepal); Jit Kumari (Nepal); People of the Philippines v. Edgar Jumawan (G.R. No. 187495 dated 21.04.2014), Supreme Court of the Republic of the Philippines. The contention that foreign jurisdictions did not have a provision akin to Section 375 of the Indian Penal Code is inaccurate. The statute referred to in People v. Liberta provided a specific exception for an act of rape against one's wife. Nepal has amended its law to criminalise the act, albeit with lesser punishment than rape by a stranger. These decisions recognise that such an exception is repugnant, illogical, an abuse of the married woman's human rights and cannot withstand scrutiny. In India, these aspects militate against the continuation of the Marital Rape Exception., In sum, the submission is that this High Court ought to strike down the impugned provisions as they violate Articles 14 and 21 of the Constitution., Brief History of Rape Law. To understand why the continuance of the Marital Rape Exception is problematic, it is useful to examine its history. The exception is steeped in patriarchy and misogyny. Its genesis is rooted in the doctrine expounded by Sir Matthew Hale, Lord Chief Justice of the Court of King's Bench, in a document titled “History of the Pleas of the Crown” published in 1736, sixty years after his death.
id_412	5	A husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife has given up herself in this kind unto her husband, which he cannot retract. This formulation came to light with the publication of the book authored by John Frederick Archbold titled Pleading and Evidence in Criminal Cases (1822: First Edition). It is a general proposition that a husband cannot be guilty of a rape upon his wife (Hale, 629), although the proposition does not necessarily extend to every possible case, as noted by the judges in R. v. Clarence [1888] 22 Queen's Bench Division of the High Court of Justice 2332. A woman may be convicted as principal in the second degree in rape (R. v. Ram, 17 Cox, 609, 610 n.; Bowen, L.J.)., A perusal of the aforesaid extract from Archbold's book shows that even in the early part of the 19th century doubts were entertained as to the applicability of the principle articulated by Sir Matthew Hale, at least in certain circumstances, that a husband cannot be held guilty of committing rape qua his wife. R. v. Clarence was a case in point and later discussion will refer to it. The English courts also found ways to dilute the common law doctrine that once a woman entered matrimony, she was deemed to have given irrevocable consent to sexual communion with her husband (see R. v. Clark (1949) 2 All ER 33; R. v. O'Brien (1974) 3 All ER 663; R. v. Steele (1976) 65 Cr. App. R 22)., The change in law moved at a glacial pace even in the United Kingdom. The offence of rape was formally defined for the first time with the enactment of the Sexual Offences (Amendment) Act, 1976, which amended the Sexual Offences Act, 1956 by defining the offence of rape as follows: ‘For the purposes of section 1 of the Sexual Offences Act 1956 (which relates to rape) a man commits rape if (a) he has unlawful sexual intercourse with a woman who at the time of the intercourse does not consent to it; and (b) at the time he knows that she does not consent to the intercourse or he is reckless as to whether she consents to it.’, A close examination of the definition of rape shows that it left, so to speak, a possibility of a defence being raised based on the Common Law Doctrine when the offender was the husband and the victim his wife, because the definition incorporated the word ‘unlawful’ along with the expression ‘sexual intercourse’., This aspect came to the fore in a case which travelled to the House of Lords of the United Kingdom from a judgment rendered by the Court of Appeal (Criminal Division) in R. v. R. The Court of Appeal had rejected the appeal preferred by the husband who was convicted for the offence of rape vis‑a‑vis his wife and had read down the Marital Rape Exception, i.e., the Common Law Doctrine that a husband cannot be held guilty of committing rape on his wife on the ground that once she entered into matrimony she could not revoke her consent for sexual union., Pertinently, the decision of the House of Lords in R. v. R. impelled the Parliament of the United Kingdom to amend the subsisting law by incorporating Section 142 in the Criminal Justice and Public Order Act, 1994: ‘Rape of woman or man – (1) It is an offence for a man to rape a woman or another man. (2) A man commits rape if (a) he has sexual intercourse with a person (whether vaginal or anal) who at the time of the intercourse does not consent to it; and (b) at the time he knows that the person does not consent to the intercourse or is reckless as to whether that person consents to it.’ This made the law gender‑neutral and removed the possibility of the Common Law Doctrine being used as a defence by excising the word ‘unlawful’ from the statute., In India, the legislative history shows that the Marital Rape Exception was incorporated in the draft Indian Penal Code as Clause 359. Clause 359 read: ‘A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions… Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception – Sexual intercourse by a man with his own wife is in no case rape.’ This clause reinforced the Common Law Doctrine without making room for girl‑children who, at that time, were married at a very young age., The note on the Chapter of General Exceptions in the draft IPC indicated that the exception in favour of the conjugal rights of the husband (clause 359) belonged wholly to the law of rape and did not affect any other part of the Code, reflecting the then‑prevailing notion that a husband had an unhindered right to have sex with his wife whether or not she consented., Paragraphs 444 and 445 of the Indian Law Commission report highlighted concerns about the exception that sexual intercourse by a man with his own wife is in no case rape, especially where the wife is a child‑bride. The report suggested that protection should be given to such wives until they are of age to reside with their husbands and recommended excluding from the exception cases in which the wife is under nine years of age., When Clause 359 was incorporated as Section 375 of the Indian Penal Code in 1860, it read: ‘A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions… Explanation – Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception – Sexual intercourse by a man with his own wife, the wife not being under ten years of age, is not rape.’ Section 376, at that time, provided that whoever commits rape shall be punished with transportation for life, or imprisonment for a term which may extend to ten years, and shall also be liable to fine., The Criminal Law (Amendment) Act, 1983 (Act 43 of 1983) raised the age threshold in the sixth circumstance of Section 375 to ‘under sixteen years of age’ and modified the exception to read: ‘Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.’ It also added a fifth circumstance that disregarded consent given by a woman who was intoxicated, unsound of mind, or administered a stupefying substance, thereby renumbering the previous fifth circumstance as sixth., The Criminal Law (Amendment) Act, 2013 (Act 13 of 2013) further raised the age threshold for an unmarried girl‑child to ‘under eighteen years of age’, expanded the definition of rape by inserting clauses (a) to (d) in Section 375 describing various sexual acts, and introduced new explanations and exceptions, with the Marital Rape Exception being renumbered as Exception 2., The Criminal Law (Amendment) Act, 2018 (No. 22 of 2018) brought amendments to certain provisions of the Indian Penal Code, the Evidence Act, the Code of Criminal Procedure and the Protection of Children from Sexual Offences Act, further aligning the law with contemporary standards., An anomaly persisted whereby the threshold for a child‑bride subjected to sexual intercourse by her husband remained ‘under fifteen years of age’, while the threshold for an unmarried girl‑child was ‘under eighteen years of age’. This discrepancy was corrected by the Supreme Court of India in Independent Thought where the threshold for a child‑bride was raised from ‘under fifteen years of age’ to ‘under eighteen years of age’., In Independent Thought, the Supreme Court of India squarely considered the ambit of the Marital Rape Exception in the context of a child‑bride, noting the incongruity between the sixth circumstance and Exception 2 of Section 375 and the Protection of Children from Sexual Offences Act. The Court’s observations have been contested by intervenors who argue that the status quo should be maintained until the legislature intervenes., Messrs Sai Deepak, Kapoor and others argue that this Court should not examine the issue because it would entail exercising powers under Article 226 to strike down the Marital Rape Exception, which they contend would amount to a legislative act and blur the doctrine of separation of powers. They maintain that such a step would deprive the Bharatiya Legislature of its right to examine the issue after a consultative exercise involving myriad stakeholders, and therefore call for judicial restraint., The argument fails to recognize the fundamental concepts subsumed in our Constitution. The framers of the Indian Constitution drew from various models, including the United States Constitution, the Constitution Acts enacted by the British Parliament for Canada and Australia, and the Government of India Act, 1935. While the United States adopted a strict doctrine of separation of powers, the Indian Constitution adopted a parliamentary executive model, wherein the executive (the President) is a formal head and real executive power resides with the Council of Ministers headed by the Prime Minister, who is accountable to the Parliament., The doctrine of separation of powers and the notion that legislatures are delegates of the people do not form part of the Constitution of India. The framers rejected a presidential form of government and instead adopted the British model of an executive/cabinet responsible to and removable by the legislature. Features of the United States Bill of Rights were incorporated into the Chapter on Fundamental Rights, and the Preamble mirrors the language of the American Constitution. Directive Principles of State Policy, modeled after the Irish Free State, were placed in Part IV of the Constitution as non‑justiciable but fundamental guidelines., Chief Justice B. K. Mukherjea, in Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225, explained that executive power denotes the residue of governmental functions after legislative and judicial functions are taken away. The Indian Constitution does not recognise an absolute doctrine of separation of powers, but the functions of the different branches are sufficiently differentiated so that no organ can assume functions that belong to another. The executive may exercise delegated legislative powers and, when empowered, limited judicial functions, but it can never contravene the Constitution or any law., In India, as in England, the executive must act subject to legislative control. Under Article 53(1) of the Constitution, executive power of the Union is vested in the President, while Article 75 provides for a Council of Ministers headed by the Prime Minister to aid and advise the President. The President is thus a constitutional head, and real executive authority rests with the Ministers. The same structure applies to the States, where the Governor (or Rajpramukh) is the formal head and the Council of Ministers exercises executive power, forming a parliamentary executive similar to that of England., A Constitution Bench of the Supreme Court of India in Kalpana Mehta & Ors. v. Union of India & Ors. (2018) 7 SCC 136 observed that separation of powers is a nuanced doctrine involving division of labour and checks and balances. The Court noted that equality, rule of law, judicial review and separation of powers form part of the basic structure of the Constitution, and that the judiciary has the authority to test the validity of legislation. It emphasized that while the doctrine is part of the Constitution, its application is not rigid; the legislative, executive and judicial functions remain distinct, and no institution lies above the Constitution., The Court further explained that Parliament and State Legislatures legislate, the executive frames policies and administers the law, and the judiciary decides disputes by applying the law to proved facts. The basic structure doctrine reinforces the distinction between legislative and judicial functions, affirming that courts cannot enact law but may invalidate legislation that is ultra vires or violates fundamental rights. Thus, the separation of powers, while a cornerstone of our democratic Constitution, is applied in a nuanced manner that respects institutional comity and the supremacy of the Constitution.
id_412	6	Thus, unlike the United States Constitution, our Constitution is not based on rigid separation of powers, although it provides for a separate Legislature, the Executive and the Judiciary. Illustratively, the Supreme Court of India has advisory jurisdiction under Article 143 of the Constitution and likewise, legislative power is vested in the judiciary. [See Sections 122 and 129 of the Code of Civil Procedure; also see H.M. Seervai, Constitutional Law of India, Fourth Edition, Vol. III, paragraph 25.42 at page 2636.], Similarly, under the Constitution, the Legislature also exercises quasijudicial powers. [See Tenth Schedule read with Article 102(2) of the Constitution.] These provisions concern the disqualification of a person who is a Member of Parliament on the ground of defection. The decision concerning such persons rests with the Chairman or Speaker of the House, as the case may be. [See Kihoto Hollohan v. Zachillhu, 1992 Supp (2) Supreme Court Cases 651 and Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly.], Having, thus, broadly established that the rigid separation of powers doctrine does not apply in the Indian context, what is required to be examined is whether the Supreme Court of India should, as contended by Messrs Sai Deepak and Kapoor, refrain from examining the contention of the petitioners that the impugned provisions (which include the Marital Rape Exception) are violative of married women's fundamental rights under Articles 14, 15, 19(1)(a) and 21 of the Constitution. The argument is suggestive of the fact that the Supreme Court of India does not have the jurisdiction or the requisite wherewithal to examine the grievance articulated by the petitioners., Article 13 of the Constitution, in my view, enjoins the Constitutional court to declare any law, which is in force in India, whether enacted before the commencement of the Constitution or thereafter, void if it is found to be inconsistent or takes away and/or abridges the rights conferred by Part III of the Constitution. The expression “inconsistent” found in Clause (1) and likewise the expression “in contravention” found in Clause (2) of Article 13 mean one and the same thing. The expression “inconsistent” applies to laws enacted prior to the Constitution being adopted and being brought into force while the expression “in contravention” applies to laws enacted after the Constitution was adopted and brought into force. Between them, they cover the entire field and thus empower the Supreme Court of India to declare void any law which violates a person’s fundamental rights. The only exception is any amendment made to the Constitution under Article 368; Article 13 does not apply to such situation. [See Article 13(4).] The remedies for enforcing fundamental rights are provided in Article 32 (which falls in Part III of the Constitution) and Article 226 which confers power on the High Courts of India to issue various writs not only for the enforcement of rights conferred under Part III but also for “any other purpose”. Clause (1) of Article 226 is a non‑obstante clause which confers this power on the High Courts. Therefore, to suggest that the issue at hand can only be dealt with by the Executive of the day or the Legislature is unpersuasive. The submission that the issues involved concern a policy decision which, in turn, requires wide‑ranging consultations with members of the public and domain experts misses, if I may say so, the wood for the trees inasmuch as it fails to accept that what the Supreme Court of India has before it is a legal issue, i.e., whether or not the impugned provisions (which include the Marital Rape Exception) violate a married woman’s fundamental rights conferred under the Constitution., The argument in substance is that the Supreme Court of India must exercise judicial self‑restraint concerning the matter at hand and leave the working out of remedies for a married woman to the legislative wisdom. The further iteration of this argument is that the Supreme Court of India should allow the Executive and/or the Legislature (in consonance with the Doctrine of Separation of Powers) to examine the issue in the absence of judicially discoverable and manageable standards for resolving the dispute. It is thus emphasised that this issue cannot be decided without initial policy formulation., The thrust of the submissions made in this behalf by the intervenors is that if the Supreme Court of India were to adjudicate the issue at hand, it would take the power out of the hands of the people, which is represented by the Parliament and thus would seriously diminish its standing., These submissions tend to suggest that, on account of the factors adverted to above, the aspects involved in the instant matters should be left best to be handled by the Executive, who in turn would engage in a consultative process being in effect the political party having majority in the Parliament. In other words, only when the consultative process culminates in a legislative intervention can a solution be found qua the issues raised in the writ petitions. In an ideal circumstance this route could perhaps have been adopted but the grief that the Marital Rape Exception has caused over the years impels me to deal with it as a legal cause seeking declaration of rights and the remedies that flow therefrom. Therefore, these submissions, in my opinion, have no merit., There are enough and more judicial precedents which clearly establish that even actions which assail sovereign or legislative acts have been entertained by courts whenever they impinge upon fundamental rights of the citizen. Therefore, the submission that intercession by the Supreme Court of India will diminish its standing is, in my view, a submission that is clearly flawed. As a matter of fact, “National respect for the courts is more enhanced through the forthright enforcement of those rights rather than by rendering them nugatory through the interposition of subterfuges.” [See Baker v. C. Carr, 1962 Supreme Court Cases OnLine US SC 40, at page 711, Clark, J.; also see A.K. Roy v. Union of India, (1982) 1 Supreme Court Cases 271, paragraphs 26‑27; and Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 Supreme Court Cases 85, paragraph 45.], Furthermore, for my part, this submission also represents, if I may say so, a half‑truth. If it was a question concerning an economic policy or economic theory, I would easily defer to the wisdom of the Executive of the day and/or the Legislature as it is essentially experimental and requires a “play in the joints”. [See R.K. Garg v. Union of India, (1981) 4 Supreme Court Cases 675.] As alluded to above, the Doctrine of Judicial Self‑Restraint is not applicable in cases which involve the determination of controversies that involve alleged infractions of fundamental rights by the State, in the context of violation of civil rights/human rights. Side‑stepping such issues would be akin to the Supreme Court of India seeking “an alibi” for refusing to decide a legal controversy, which it is obliged in law to decide. The perceived “harm to its reputation or prestige” can be of little consequence. [See H.M. Seervai, Constitutional Law of India, Fourth Edition, Vol. III, paragraph 25.46, at page 2640.], Thus, “shunning responsibility” to decide what falls within the ken of the Supreme Court of India and leaving it to the Executive and/or the Legislature, in my view, would constitute abandonment of the duty and the role which the Constitution has defined for the courts. Courts are engaged in the job of adjudication which involves the application of the law which includes the provisions of the Constitution to a given set of facts. Areas that the courts cannot venture into are carved out by the law. While I do not doubt that the issues at hand involve substantial questions of law which require examination in the light of relevant statutes and the provisions of the Constitution, there is, to my mind, no better forum to rule on these issues than the Supreme Court of India itself., The contention advanced by Messrs Sai Deepak and Kapoor as also those who support this argument does not impress me and, hence, is rejected., Having cleared the deck, let me straight away deal with the elephant in the room, i.e., why, according to me, the impugned provisions including the Marital Rape Exception are problematic., IV Ambit of Section 375 of the Indian Penal Code, Section 375 of the Indian Penal Code defines rape. A man is said to commit “rape” if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, urethra or anus of a woman or makes her do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under any of the following seven circumstances: (i) against her will; (ii) without her consent; (iii) with her consent when her consent has been obtained by putting her or any person in whom she is interested in fear of death or hurt; (iv) with her consent when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married; (v) with her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent; (vi) with or without her consent, when she is under eighteen years of age; (vii) when she is unable to communicate consent. Explanation 1: for the purposes of this section, “vagina” shall also include labia majora. Explanation 2: consent means an unequivocal voluntary agreement when the woman, by words, gestures or any form of verbal or non‑verbal communication, communicates willingness to participate in the specific sexual act, provided that a woman who does not physically resist the act of penetration shall not, because of that fact alone, be regarded as consenting to the sexual activity., The circumstances listed above are seven in number. The section also includes two explanations and two exceptions. Exception 1 excludes a medical procedure or intervention from the offence of rape. Exception 2, the Marital Rape Exception, saves from the rigour of the main provision a husband who subjects his wife, who is not under eighteen years of age, to sexual acts described in clauses (a) to (d) of Section 375., Section 376 provides for punishment for rape, prescribing a mandatory minimum sentence of ten years, which may be extended to imprisonment for life and may be accompanied by a fine. Section 376(2) covers cases of aggravated rape, including rape committed in custody, by a relative, guardian or teacher, by a person in a position of trust or authority, and on women placed in vulnerable circumstances, with a minimum mandatory sentence of ten years extendable to life imprisonment and a fine. Other forms of aggravated rape are covered under Sections 376A (causing death resulting in a persistent vegetative state of the victim) and 376D (gang‑rape), the punishment for which is much harsher; under Section 376A even a death sentence can be imposed., Section 376B, read with its explanation, concerns sexual acts described in clauses (a) to (d) of Section 375 which, if a husband subjects his wife to while they are living separately under a decree of separation or otherwise, albeit without her consent, is a punishable offence. The prescribed minimum mandatory sentence of imprisonment is two years, which may extend to seven years, accompanied by a fine., A careful perusal of the aforementioned provisions, in particular Section 375, demonstrates that the acts described in clauses (a) to (d) become an offence of rape only if committed in any of the seven circumstances. Absent those circumstances, the acts do not acquire a criminal hue. The first circumstance involves acts committed against the woman's will, indicating resistance. The second circumstance, “without her consent”, involves an act not accompanied by an intelligent deliberation as to the nature and consequences of the sexual act or is based on misrepresentation or compulsion such as fear of injury or death. The third circumstance disregards consent obtained by putting the woman or any person she is interested in fear of death or hurt. The fourth circumstance disregards consent when the offender knows he is not the woman's husband and the woman believes the offender is another person to whom she is or believes herself to be lawfully married. The fifth circumstance disregards consent when, at the time of giving consent, the woman is of unsound mind, intoxicated, or has been administered a stupefying or unwholesome substance, disabling her from understanding the nature and consequences of the act. The sixth circumstance covers a girl child under eighteen years of age, rendering her consent immaterial. The seventh circumstance covers a woman unable to communicate consent. Explanation 2 makes clear that mere passivity or lack of resistance cannot be construed as consent., Exception 1 excludes a medical procedure or intervention from the offence of rape. Exception 2, the Marital Rape Exception, in effect saves from the rigour of the main provision a husband, even though he subjects his wife who is not under eighteen years of age to sexual acts described in clauses (a) to (d) of Section 375., In defence of the impugned provisions, in particular the Marital Rape Exception, the following broad arguments are advanced: (i) the distinction that the Marital Rape Exception makes between married and unmarried women is constitutionally viable; (ii) the Indian Penal Code itself contains provisions which are relationship‑centric; (iii) the legislature has provided various avenues to enable a victim to seek redressal against spousal violence, including Section 376B and Section 498A of the Indian Penal Code, as well as the provisions of the Domestic Violence Act; (iv) the husband has a conjugal expectation to, inter alia, have sex with his wife; (v) while the legislature does not condone spousal sexual violence, it chooses not to label the act as rape as it seeks to protect families including progeny, i.e., the State has a legitimate interest in protecting the institution of marriage; (vi) there is a palpable and real apprehension that striking down the Marital Rape Exception could result in the lodgment of false cases; (vii) if the husband is prosecuted for marital rape, it would result in the State invading a married couple’s private space, making it virtually impossible for the State to collect evidence; and (viii) striking down the Marital Rape Exception would create a new offence by criminalising an act which up until now was not construed as an offence, a power that is reserved for the legislature., To answer whether a classification based on the relationship between offender and victim is constitutionally viable, one must examine whether the classification has an intelligible differentia with the object sought to be achieved. The legislature seeks to punish offenders who commit rape; there is a differentia between married, separated and unmarried couples. The classification must have a rational nexus with the object of protecting a woman from being subjected to a sexual act against her will or without her consent. The Marital Rape Exception does not meet the nexus test as it grants impunity to an offender based on his relationship with the victim, i.e., because the act is committed within marriage., The classification, in my opinion, is unreasonable and manifestly arbitrary as it conveys that forced sex outside marriage is “real rape” whereas the same act within marriage is anything else but rape. A ‘chaste woman’ or a young girl is more likely to be considered a ‘victim’, but not a married woman. A prior sexual relationship is regarded as a reasonable defence because consent is assumed, but not in the case of a married woman. A sex‑worker has the power to say “no” by law, but not a married woman. In a gang rape involving the husband of the victim, the co‑accused will face the brunt of the rape law, but not the offending husband because of his relationship with the victim. A married woman’s ability to say “no” to sexual communion with her husband when he is infected with a communicable disease or she is herself unwell finds no space in the present framework of rape law. Thus the rape law as it stands is completely skewed insofar as married women are concerned. To a woman who is violated by her husband, it is no answer to say that the law provides her other remedies. When marriage is a tyranny, the State cannot have a plausible legitimate interest in saving it. In every sense, the Marital Rape Exception, in my view, violates the equality clause contained in Article 14 of the Constitution. Article 14 not only guarantees that the State shall not deny any person equality before the law but also guarantees that every person within the territory of India will have equal protection of the laws. The Marital Rape Exception with one stroke deprives nearly one‑half of the population of equal protection of the laws. The classification between married and unmarried women in the context of the Marital Rape Exception is without doubt unreasonable., The test as to what is construed as unreasonable by the courts in the context of a provision in the legislation or subordinate legislation is articulated in Kruse v. Johnson, (1898) 2 QB 91, which followed an earlier Privy Council judgment rendered in Slattery v. Naylor, (1888) 13 App. Cas. 446: “I do not mean to say that there may not be cases in which it would be the duty of the court to condemn bye‑laws, made under such authority as these were made, as invalid because they were unreasonable. But unreasonable in what sense? If, for instance, they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclose bad faith; if they involve such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court may well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.’”, If one applies the aforesaid test, the only conclusion is that the classification between married and unmarried couples in the context of forced sex is not only unequal in its operation but also manifestly unjust. The Marital Rape Exception, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men; lawmakers could never have intended to make such a law. The Kruse v. Johnson test has been cited with approval by the Supreme Court of India in the following cases: (i) Trustees of the Port of Madras v. Aminchand Pyare‑Lal, (1976) 3 Supreme Court Cases 167; (ii) Maharashtra State Board of Secondary & Higher Secondary Education & Anr. v. Paritosh Bhupeshkumar Sheth & Ors., (1984) 4 Supreme Court Cases 27; (iii) Shri Sitaram Sugar Co. Ltd. & Anr. v. Union of India & Ors., (1990) 3 Supreme Court Cases 223; (iv) Supreme Court Employees' Welfare Association v. Union of India & Anr., (1989) 4 Supreme Court Cases 187., The classification, as is well established, should have a “causal connection” between what is sought to be classified and the object of the provision. Over‑emphasis on the classification test bears the risk of giving precedence to form over substance. The following observations made by Hon’ble Dr Justice D.Y. Chandrachud in Navtej Singh Johar capture the essence of the width and amplitude of Article 14 when applied to real‑life situations: A litany of our decisions indicates that to be a reasonable classification under Article 14 of the Constitution, two criteria must be met: (i) the classification must be founded on an intelligible differentia; and (ii) the differentia must have a rational nexus to the objective sought to be achieved by the legislation. There must, in other words, be a causal connection between the basis of classification and the object of the statute. If the object of the classification is illogical, unfair and unjust, the classification will be unreasonable.
id_412	7	The problem with the classification test is that what constitutes a reasonable classification is reduced to a mere formula: the quest for an intelligible differentia and the rational nexus to the object sought to be achieved. In doing so, the test of classification risks elevating form over substance. The danger inherent in legal formalism lies in its inability to lay threadbare the values which guide the process of judging constitutional rights. Legal formalism buries the life‑giving forces of the Constitution under a mere mantra. What it ignores is that Article 14 contains a powerful statement of values of the substance of equality before the law and the equal protection of laws. To reduce it to a formal exercise of classification may miss the true value of equality as a safeguard against arbitrariness in state action. As our constitutional jurisprudence has evolved towards recognizing the substantive content of liberty and equality, the core of Article 14 has emerged out of the shadows of classification. Article 14 has a substantive content on which, together with liberty and dignity, the edifice of the Constitution is built. Simply put, in that avatar, it reflects the quest for ensuring fair treatment of the individual in every aspect of human endeavour and in every facet of human existence., The Supreme Court made somewhat similar observations while examining the constitutional validity of Section 2(q) of the Domestic Violence Act which excluded from the definition of the respondent (against whom an action is filed) all persons except an adult male from the purview of the Act in Harsora v. Harsora., Article 14 is in two parts. The expression equality before law is borrowed from the Irish Constitution, which in turn is borrowed from English law, and has been described in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14, as the negative aspect of equality. The equal protection of the laws in Article 14 has been borrowed from the 14th Amendment to the United States Constitution and has been described in the same judgment as the positive aspect of equality, namely the protection of equal laws. Subba Rao, J. stated: (SCR pp. 34‑35: AIR p. 1134, para 26) This subject has been so frequently and recently before this court as not to require an extensive consideration. The doctrine of equality may be briefly stated as follows: All persons are equal before the law is fundamental of every civilised constitution. Equality before law is a negative concept; equal protection of laws is a positive one. The former declares that everyone is equal before law, that no one can claim special privileges and that all classes are equally subjected to the ordinary law of the land; the latter postulates an equal protection of all alike in the same situation and under like circumstances. No discrimination can be made either in the privileges conferred or in the liabilities imposed. But these propositions conceived in the interests of the public, if logically stretched too far, may not achieve the high purpose behind them. In a society of unequal basic structure, it is well‑nigh impossible to make laws suitable in their application to all persons alike. So, a reasonable classification is not only permitted but is necessary if society should progress. But such a classification cannot be arbitrary but must be based upon differences pertinent to the subject in respect of and the purpose for which it is made., In Lachhman Dass v. State of Punjab, (1963) 2 SCR 353, Subba Rao, J. warned that over‑emphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive Article 14 of its glorious content. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality. This admonition seems to have come true in the present case, as the classification of adult male persons clearly subverts the doctrine of equality by restricting the reach of a social beneficial statute meant to protect women against all forms of domestic violence., We have also been referred to D.S. Nakara v. Union of India, (1983) 1 SCC 305. This judgment concerned itself with pension payable to Government servants. An Office Memorandum of the Government of India dated 25‑5‑1979 restricted such pension payable only to persons who had retired prior to a specific date. In holding the date discriminatory and arbitrary and striking it down, this Court went into the doctrine of classification, and cited from Special Courts Bill, 1978, In Re: (1979) 2 SCR 476 and Maneka Gandhi v. Union of India, (1978) 2 SCR 621, and held that the burden to affirmatively satisfy the court that the twin tests of intelligible differentia having a rational relation to the object sought to be achieved by the Act would lie on the State, once it has been established that a particular piece of legislation is on its face unequal. The Court further held that the petitioners challenged only that part of the scheme by which benefits were admissible to those who retired from service after a certain date. The challenge, it was made clear by the Supreme Court of India, was not to the validity of the scheme, which was wholly acceptable to the petitioners, but only to that part of it which restricted the number of persons from availing its benefit., Therefore, the Supreme Court of India should eschew the proclivity of over‑emphasizing the test of classification if Article 14 is to be applied with full vigour, which postulates affording equal protection of the laws to persons who are placed in similar and like circumstances. While doing so, the Court should examine closely how the impugned statute or provision operates on the ground, i.e., what is its real effect and impact on the persons who come within the sway of the statute. In doing so, the Court should disregard remote and indirect consequences that may entail by virtue of the impugned statute. Thus, the Doctrine of Classification, which has been forged by constitutional courts to give practical content to the doctrine, must ultimately subordinate itself to the prime principle that the fundamental right of the aggrieved person to seek equality before a law is preserved., The immediate deleterious impact of the provisions of the Marital Rape Exception is that while an unmarried woman who is the victim of the offence of rape stands protected and can take recourse to various provisions of the Indian Penal Code and the Code of Criminal Procedure, the same regime does not operate if the complainant is a married woman. In this context, one may have regard to the following provisions of the Indian Penal Code and the Code of Criminal Procedure: Section 228A of the Indian Penal Code prevents disclosure of the identity of a rape victim except in certain circumstances. Section 26 of the Code provides that offences concerning rape or aggravated rape shall be tried, as far as practicable, by a court presided over by a woman. Section 53A empowers a medical practitioner to examine a person charged with committing an offence of rape if he has reasonable grounds for believing such examination will furnish evidence. The first proviso to Section 154 mandates that if information is given by a woman victim regarding the offence of rape or its attempt, such information shall be recorded by a woman police officer or any woman officer. Similarly, the second proviso to Section 161 of the Code also requires the statement of the woman victim to be recorded by a woman police officer or any woman officer. Under Section 164A, medical examination, with the consent of the woman‑victim, is to be conducted by a registered medical practitioner within 24 hours of information being received regarding commission of the offence of rape. The first proviso appended to Section 309 provides that the inquiry or trial relating to the offence of rape is ordinarily to be completed within two months of the date of filing of the charge sheet. Section 327 provides that inquiry and trial of the offence of rape or aggravated rape shall be conducted in camera and, as far as practicable, by a woman judge or magistrate, with leeway to the presiding judge to grant access to a particular person if thought fit. Lastly, Section 357C mandates provision of first aid or medical treatment, free of cost, to women who are victims of rape., The aforementioned provisions are those to which a married woman victim would have no recourse. The fact that the law does not operate even‑handedly for women who are similarly circumstanced, i.e., subjected to forced sex, is writ large and no amount of legal callisthenics will sustain the Marital Rape Exception. Therefore, in my view, the Marital Rape Exception is bad in law as it violates Article 14 of the Constitution., This brings me to the argument that there are other provisions in the Indian Penal Code which are relationship‑centric and, therefore, the Marital Rape Exception cannot be struck down on the ground that it grants impunity to the offender only because he is in a marital relationship with a woman‑victim. The argument is only partially correct and, therefore, misses the point that Mr Rao and Ms Rebecca John had proffered in the course of the hearing., First and foremost, what is required to be examined in this case, as noticed above, is the legal tenability of the impugned provision in the context of the object sought to be achieved. As discussed above, the stated object of Section 375, amongst others, is to punish offenders who are found guilty of rape. The invidious classification brought about by the Marital Rape Exception fails to achieve this object and, therefore, is unable to offer equal protection of the law to married women‑victims who are similarly circumstanced. Thus, when contrasted with other provisions in the Indian Penal Code, which provide for exceptions on account of the marital relationship, it shows that they firewall offences which are committed outside marriage and not offences perpetrated by one spouse upon the other. In this context, one may advert to Sections 136, 212, 216 and 216A of the Indian Penal Code which broadly concern prosecution for offences of harbouring deserters, offenders, escapees and robbers/dacoits respectively., In all these cases, where the person who is harboured and the one who harbours are in a spousal relationship, the law excludes such an offender from the rigours of prosecution. The point which emerges upon a plain reading of these provisions is that they are not provisions where the deserter, escapee, offender or robber/dacoit commits an offence on the harbourer with whom he or she is in a spousal relationship., The Marital Rape Exception, on the other hand, seeks to grant impunity to the husband, i.e., the offender, although the offence is perpetrated on the wife. Therefore, the argument that there are other provisions in the Indian Penal Code that ring‑fence defendants from prosecution based on a marital relationship is completely misconceived., The submission that there are avenues available both in the Indian Penal Code and other statutes which can be taken recourse by a woman‑victim to agitate her grievance concerning sexual violence again fails to recognise that none of them brings within its fold the offence of rape. Section 498A of the Indian Penal Code, which was cited in this context, deals with an offence of cruelty committed by the husband or his relatives. The definition of 'cruelty' plainly does not include the offence of rape as defined in clauses (a) to (d) of Section 375. The expression 'cruelty' as defined in Section 498A means wilful conduct of such nature that is likely to drive the woman to commit suicide or to cause grave injury to her life, limb or health. The expression also includes harassment of a woman where such harassment is directed towards coercing her or any person related to her to meet any unlawful demand concerning property and/or valuable security. The failure of the victim or any person related to her to meet such demand is also construed as harassment under the said provision. Thus, the offence of rape cannot be brought within the ambit of Section 498A of the Indian Penal Code., Likewise, other provisions of the Indian Penal Code such as Section 304B (concerning dowry death) and Section 306 (concerning abetment of suicide) do not bring within their ambit the offence of rape. The presumptions provided under Section 113A (with regard to abetment of suicide of a married woman) and Section 113B (vis‑vis dowry death) under the Evidence Act are correlative to Section 498A and Section 304B respectively. These provisions by themselves do not militate against the argument that they do not further the cause of a woman‑victim who wishes to agitate her grievance concerning forced marital sex., The Statement of Objects and Reasons of the Domestic Violence Act distinctly brings forth the point that it was enacted to protect women against domestic violence. The Statement acknowledges that the remedies available under civil law up until then did not address the phenomenon of domestic violence in its entirety. The thrust of the Domestic Violence Act is to protect women from becoming victims of domestic violence and to prevent its occurrence in society. The fact that Section 498A of the Indian Penal Code was available to a woman in cases in which she was subjected to cruelty by her husband or relatives was also noticed. The emphasis of counsel was on the definition of domestic violence as provided in Clause (a) of Section 3 read with Explanation 1(ii) of the Domestic Violence Act. The submission was that under Section 18 of the Act, a magistrate can pass protection orders and likewise issue directions under Section 19. In particular, it was pointed out that under sub‑section (2) of Section 19, magistrates routinely issue directions for the registration of an FIR to protect or provide safety to the aggrieved person. It was also pointed out that the magistrate has power under Section 20 to grant monetary reliefs, which, inter alia, require the respondent to make good the loss of earnings and/or provide for medical expenses to the aggrieved person resulting from acts which emanate from domestic violence., Clearly, these arguments hedge around the main issue, which is to call out the offence of rape for what it is. These arguments miss the point that although sexual abuse is included in the definition of domestic violence, the offender is not tried for the offence of rape and the consequences that the offender would have to face, as provided in Section 376(1) of the Indian Penal Code if found guilty. The fact that the magistrate under Section 19(2) of the Domestic Violence Act can order registration of an FIR for every offence other than marital rape only highlights the fact that the woman‑victim is nowhere near the point from which she can trigger prosecution of her husband who has subjected her to forced sexual intercourse., Similarly, the Statement of Objects and Reasons of the Dowry Act would disclose that the Act was enacted to prohibit the evil practice of giving and taking dowry. It, in no manner, protects married women against sexual abuse., Insofar as redressal against injury caused on account of sexual abuse amounting to rape is concerned, the husband is not visited with any criminal liability for raping his wife. See Hindu Marriage Act, Special Marriage Act, and the Divorce Act, 1969., The submission that the husband has conjugal expectation to have sexual communion with his wife is tenable as long as the expectation is not equated to an unfettered right to have sex without the consent of the wife. The law cannot direct consummation. The best illustration is the decree of restitution for conjugal rights issued by the Supreme Court of India under Section 9 of the Hindu Marriage Act. Although a decree obtained under the Hindu Marriage Act can become the basis for seeking a divorce, the decree can be executed only by attachment of property., Conjugal expectations, though legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access or marital privilege claimed by the husband vis‑à‑vis his wife disregarding the circumstances which obtain at the given point in time as well as her physical and mental condition., The submission that the legislature has not condoned spousal sexual violence but has only taken a conscious decision not to label it as rape to protect the institution of marriage and, by extension, families and progeny, ignores the fundamental fact that marriage is a union between two individuals recognised by law and society who may have familial attachments. The marital bond between individuals is the edifice of the familial structure. The expanse of the familial structure is, in turn, dependent on whether individuals are part of a joint family or have chosen a nuclear family. Thus, it is important that the edifice on which the familial structure is erected remains intact, i.e., the union between the individuals. However, the edifice can remain intact only if it is rooted in mutuality, partnership, agency and the ability to respect each other's yearning for physical and mental autonomy. These are perhaps the core principles which require constant nurturing through love and affection. Undeniably, when these core principles are violated, the edifice crashes resulting in the collapse of the familial structure., The State has no role in setting up the edifice or the familial structure. The State, via various statutory instruments, recognizes the existence of the marital bond and provides avenues for its dissolution and remedies where it becomes unworkable. The Hindu Marriage Act, Special Marriage Act, Domestic Violence Act and other legislations illustrate the role assigned to the State concerning the recognition of marriages, their dissolution and provision of remedies for aggrieved parties, which includes maintenance and custody of progeny born from wedlock. The State's interest is limited to the extent provided by various statutes of such genre., It is in this backdrop that the State has legislatively intervened from time to time both in the sphere of criminal and civil law to provide remedies to women who are subjected to sexual abuse. Sections 375, 376, 376B and other appurtenant provisions contained in the Indian Penal Code for aggravated rape and the Domestic Violence Act are prime examples of legislative intervention made by the State in the interest of women exposed to sexual abuse and domestic violence., That said, the State appears to have stopped short of conferring the right on a woman to call out an offender who happens to be her husband when he subjects her to rape. The argument that the State has recognized other forms of sexual offences and, therefore, to protect the familial structure, it does not wish to go further (i.e., empower a married woman to trigger the criminal law when her husband subjects her to rape) amounts to giving recognition to the abominable common law doctrine that a married woman is nothing but chattel who loses her sexual agency once she enters matrimony., Certain sexual offences need to be called out for what they are. Sexual assault by the husband on his wife, which falls within the fold of Section 375 of the Indian Penal Code, needs to be called out as rape, as that is one of the ways in which society expresses its disapproval of the conduct of the offender. Oddly, prevailing mores in society appear to stigmatize the victim rather than the rapist. Therefore, I agree with Ms Nundy that the sexual assault which falls within the four corners of Section 375 of the Indian Penal Code needs to be labelled as rape irrespective of whether it occurs within or outside the bounds of marriage. The fact that certain ingredients of the offence covered under Section 375 are found present in other provisions of the Indian Penal Code concerning hurt (Section 319 read with Section 321 and 323), grievous hurt (Section 320 read with Section 322 and 325) or cruelty (Section 498A) does not provide a satisfactory answer as to why a sexual assault synonymous with rape should not be labelled as rape when the offence is committed on an adult married woman by her husband., The other argument that striking down the Marital Rape Exception would result in the lodgement of false cases is based on a notion which is not backed by any empirical data. First and foremost, a vast number of women, married or unmarried, do not report sexual assaults because of the stigma attached to it. The most authentic data presented before us, and not refuted by the Union of India or the Government of National Capital Territory of Delhi, was the National Family Health Survey (NFHS‑4) carried out under the aegis of the Government of India, Ministry of Health and Family Welfare for 2015‑2016. The survey, conducted among married women aged 15 to 49 years, revealed disturbing aspects concerning spousal sexual violence, both from current husbands and former husbands, and that 99 % of sexual assault cases remain unreported. The relevant part of the survey is extracted hereafter; the figures and narratives speak for themselves., The survey showed that among women aged 15‑49 who had experienced sexual violence, 82.6 % reported the current husband as the perpetrator, while 9.2 % reported the former husband., Therefore, the apprehension that there will be a deluge of false cases against offending husbands does not appear to be correct. If the NFHS data is taken into consideration, it establishes that 9.9 out of 10 cases of sexual assault in India go unreported. Thus, the contention that because there is a possibility of false cases being lodged, the courts should refrain from striking down the Marital Rape Exception even if it is unconstitutional, is a contention which is completely unmerited., Besides the reason articulated hereinabove, this submission suggests that married women in India are manipulative or capable of being manipulated more than their counterparts in other jurisdictions. In support of this submission, observations made in judicial decisions concerning offences such as Section 498A of the Indian Penal Code have been cited. In my view, the apprehension is exaggerated and, as indicated above, is not backed by empirical data; the data in fact shows the contrary. Secondly, the courts in India are fully equipped to deal with false cases. Lodgement of false cases is not confined to rape; it permeates, to an extent, other provisions of the Indian Penal Code as well. Section 498A is a case in point. Despite noticing oddities in certain cases and false complaints being lodged, the legislature has not been spurred into removing the provision from the statute, presumably for three reasons: statistically, the number of false cases is minuscule; it is a beneficial provision which protects a married woman from atrocities that may be inflicted by the husband or his family; and the courts have been able to deal with such cases appropriately., Thus, given the track record of the courts up until now, no one need entertain doubts that the courts would not be able to employ the same rigour regarding false allegations of marital rape. The best way forward would be to create a sieve at every level so that false cases are weeded out., However, if one were to accept the submission that there would be a deluge of false cases against husbands and use this as the basis for rejecting the challenge to the Marital Rape Exception, it would be a case of throwing the baby out with the bathwater., The submission that prosecution of the offending husband for a rape offence would result in invading the private space of a married couple is nothing but an attempt to keep the law at bay even when a heinous crime such as rape has occurred within what some would refer to as sacrosanct space. The argument is morally suspect and legally untenable. When an offence of sexual abuse (short of rape) takes place within the confines of a married couple's private space, the law has unhindered access to the same space to bring the guilty to justice. Thus, short of rape, if an offending husband inflicts hurt or grievous hurt or subjects her to cruelty or even sexual abuse, investigators are empowered to enter the couple's private space. The attempt to keep the law away when a woman is subjected to forced sex by her husband, by demarcating private and public space, is to deny her the agency and autonomy that the Constitution confers on her. The distinction between private and public space has no relevance when the rights of the woman victim are infringed. In this context, the following observations in Joseph Shine are apposite: The right to privacy depends on exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, the courts must step in to ensure that dignity is realized in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when the rights of individuals are in siege is to obstruct the unfolding vision of the Constitution. Constitutional protections and freedoms permeate every aspect of a citizen's life; the delineation of private or public spheres becomes irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny., The argument that collection or gathering of evidence would be difficult in cases involving marital rape is no different from the impediments faced by investigators concerning other offences, short of rape, which occur in marital space., Mr Sai Deepak's contention that investigation in private and intimate space because of fear of accusation of rape would require couples to enter into a detailed written agreement concerning courtship or mating, or to create evidentiary records concerning every act of intimacy, or have a third party witness the act, trivialises the sexual abuse inflicted on a woman. This argument stems from a preconceived notion that married women lack a sense of proportion or are inherently manipulative. The argument lacks substance because if this submission were accepted, then the rape law ought not to apply also to couples who are in live‑in relationships. The logical sequitur of this line of argument is that rape law should be confined to an offence committed on a woman by a stranger alone. In my opinion, the difficulty in collecting evidentiary material should not be the reason for keeping an offending husband who subjects his wife to forced sex out of the purview of the substantive rape law., These are the very same arguments which have been propounded by intervenors in support of offending husbands who subject their wives to rape and remain outside the purview of the rape law. Pertinently, similar objections received the attention of the UK Law Commission (1991) which considered them in its Working Paper No. 116.
id_412	8	To establish the untenability of the objection and for the sake of brevity, let me straight away extract some parts of the said report, as they are not only wholesome but are also based on robust common sense. 4.51 We are likewise unaware of any evidence to suggest that there would be significantly more problems of proof in relation to rape than in relation to other crimes within marriage, though we shall welcome further comment on that issue. However, because of the importance of this general issue we set out in this section for comment some further factors that seem to us to assist in assessing the matter. 4.52 As to the first, difficulty of proof, issues of evidence and proof in marital rape cases do not in fact appear to be different in kind from those arising in many crimes, sexual and non‑sexual, where the case turns on the word of the accused against that of the alleged victim. The Supreme Court of India is well aware of these difficulties, particularly as they affect crimes like rape, and of its obligation to ensure that injustice does not occur. We suggest, therefore, that the Supreme Court of India would be able to protect the interests of the accused here as in other cases involving sexual allegations. 4.53 The converse fear is that the Supreme Court of India would be so concerned to protect the interests of the accused that the extension of the law of rape to cohabiting married couples would have no practical effect. This would not be a problem in cases where the husband used violence; or boasted of his exploits; or otherwise created secondary evidence. But even in cases where the only evidence was that of the wife, the Supreme Court of India would be capable of identifying testimony that was in fact credible and acting on it. We point out below that despite the considerable trauma that can attend participation in a rape trial, at least some complainants, even in cases of rape committed by intimates in private, appear to be willing to come forward, and convictions are obtained. While we recognise that a complaint by a wife might be scrutinised with particular care both by the prosecuting authorities and by the Supreme Court of India, we have seen no evidence to suggest that a law of marital rape would be unenforceable. As the High Court of Justiciary of Scotland put it in Stallard v HM Advocate, we accept, of course, that proof of rape in marriage will, in many situations, be difficult, but that is no reason for saying that a charge of rape of his wife against a husband while the parties are still cohabiting is not relevant for trial. Therefore, it cannot be said that the difficulties in proving rape as against other offences within marriage are somehow greater. Moreover, one cannot close one's eyes to the offence of rape merely because it is difficult to prove. There cannot be a greater travesty of justice. In my view, the rules of evidence as applicable in our country and scores of precedents of our Courts and of Courts in other jurisdictions can easily provide guidance on these aspects., V(viii) New offence. One of the principal objections to striking down the Marital Rape Exception is that it would create a new offence. In support of the submission that striking down the Marital Rape Exception would not create a new offence, Ms Nundy, Mr Rao and Ms John, inter alia, relied upon the judgment in Independent Thought. It was also their submission that what the criminal law punishes is the act of commission or omission; in this case, subjecting a woman to a forced sexual act, which is agnostic to who the perpetrator of the crime is. In this context, reference was made to the provisions of the Indian Penal Code and the Code which define the expression offence. The contention is that if the Marital Rape Exception is struck down all that it would do is to bring the offending husband within the fold of the substantive rape law. On the other hand, Messrs Sai Deepak and Kapoor read passages from the decision rendered in Independent Thought to demonstrate that the court was only attempting to correct the anomaly which subsisted vis‑vis a child‑bride who was subjected to forced sex by her husband. In this behalf, both Mr Sai Deepak as well as Mr Kapoor highlighted the fact that the judges who rendered the decision have made it amply clear that they were not dealing with marital rape in the context of an adult woman. This argument was buttressed by relying upon the provisions of the Indian Penal Code, i.e., the sixth circumstance contained in Section 375 and the provisions of the Protection of Children from Sexual Offences Act and the PCM Act. To meet this objection, Ms Nundy had relied upon the inversion test, as formulated by Professor Eugene Wambaugh, which is cited with approval by the Supreme Court of India in Utility Users Welfare and Nevada Properties (P) Ltd., In my view, the submission that if one were to strike down the Marital Rape Exception, it would create a new offence, is misconceived for the following reasons. Firstly, the offence of rape is already defined in the substantive part of Section 375 of the Indian Penal Code. The sexual acts which are described in Clauses (a) to (d) of Section 375 constitute rape if they fall within any of the seven circumstances alluded to in the said provision. There are two exceptions provided in Section 375 and, thus, those who come within the ambit of the exception cannot be prosecuted for the offence of rape. The first exception concerns a circumstance where the woman undergoes a medical procedure or intervention. The second exception (which is the exception under challenge) concerns the act of sexual intercourse or sexual acts which involve a man and his wife who is not under 18 years of age. The exception clearly subsumes the main provision without providing a determining principle or rationale as to why husbands who have subjected their wives to forced sex should not face the full force of the rape law. Since the stated objective of the rape law is to protect women from sexual abuse of the worst kind i.e., rape, there is no perceivable rationale for granting impunity to an offending husband in the context of marital rape. Thus, if the Marital Rape Exception is excised, all that would happen is that it would extend the ambit of Section 375 to even offending husbands. Secondly, a new offence or new crime would perhaps have been created if the ingredients of the offence had changed. It is no one's case that the ingredients of the offence have changed; all that would happen if the Marital Rape Exception is struck down is that the offending husband would fall within the ambit of the offence. Thirdly, reading down, filling gaps (casus omissus) and/or excising parts of an offending provision contained in a statute is a legitimate judicial tool employed by courts for severing what is unconstitutional and retaining that which is construed as lawful. Fourthly,
id_412	9	But, as I have said, the criminal law is applicable between husband and wife wherever the facts are such as to bring the case within the terms of the Indian Penal Code. I am not aware that there has occurred any case in this country in recent years in which such a matter has come under the consideration of the Supreme Court of India; but in earlier times there are recorded instances in the reports of the Sudder Nizamat, in which husbands have been criminally punished for having sexual intercourse with their wives with fatal results, in consequence of their wives being unfit by reason of immaturity for such intercourse, even in cases which did not fall within the law of rape. But at present we are guided simply by the Indian Penal Code, and we have to see what provisions of the Indian Penal Code are or may be applicable to the facts of this case., Pertinently, this troubling aspect of uninhibited marital privilege, without regard to the health and safety of the victim, was noticed by the House of Lords in R. v. R. (1991) 4 All ER 481, 485. The Marital Rape Exception (MRE) violates Articles 15 and 19(1)(a) of the Constitution. Although Article 15 of the Constitution prohibits the State from discriminating against any citizen inter alia on the ground of sex, the instant matters allude to discrimination made within the same sex, solely on the ground of marital status. Continuance of the MRE on the statute violates, in my opinion, Article 15 of the Constitution since it triggers discrimination against women based on their marital status. Resultantly, it impairs and nullifies their sexual agency with regard to coitus and their right to procreate or abstain from procreation. More fundamentally, their power to negotiate contraception, to protect themselves against sexually transmissible disease and to seek an environment of safety, away from the clutches of her abuses, is completely eroded., Likewise, the Marital Rape Exception (MRE), in my view, is also violative of Article 19(1)(a) of the Constitution, as it violates the guarantee given by the Constitution concerning freedom of expression, amongst others, to married women who are citizens of this country. The guarantee of freedom of expression includes a woman's right to assert her sexual agency and autonomy. The fact that this right is also secured by Article 21 (which is available to non‑citizens as well) lends strength to the right conferred on a married woman to express herself and not be subjected to non‑consensual sexual intercourse by her husband., Having examined the flaws in the Marital Rape Exception (MRE), what needs to be dealt with is whether Section 376B read with Section 198B of the Criminal Procedure Code should also fall by the wayside. Since I have concluded that granting impunity to offending husbands under the MRE is violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution, the class which comprises separated husbands would also necessarily have to be dealt with as any other rapist. In other words, separated husbands would suffer the same punishment as prescribed for any other rapist under Section 376(1) of the Indian Penal Code, as that would be the logical sequitur of striking down the MRE. Under this provision, the minimum mandatory sentence is ten years, whereas under Section 376B, for a separated husband, the minimum mandatory sentence is two years which may extend to seven years. In both cases, in addition to imprisonment, the High Court of India is also empowered to impose a fine. Furthermore, under Section 198B of the Criminal Procedure Code, no court can take cognizance of an offence punishable under Section 376B of the Indian Penal Code (i.e., against a separated husband) except upon prima facie satisfaction of the facts which constitute the offence upon a complaint lodged by the wife against her husband. Thus, Section 376B of the Indian Penal Code and Section 198B of the Criminal Procedure Code, which advert to the third category (i.e., separated husbands), provide not only a different procedure for triggering the offence but also mandate a lower minimum sentence without being able to demonstrate how a rapist who falls in this category is different from a husband who is not separated or even a stranger to the victim. The provision, to my mind, is incongruous as, at the risk of repetition, I need to emphasise that a rapist remains a rapist irrespective of his relationship with the victim. The strenuous argument advanced on behalf of the intervenors that quality of relationship matters provides no amelioration for the woman who is violently violated., In the course of the hearing, one of the issues which arose for consideration concerned the punishment provided for aggravated rape in the context of offending husbands. Reference was made to the expression \relative\ mentioned in Section 376(2)(f) of the Indian Penal Code. It was contended that if the Marital Rape Exception (MRE) was struck down, then husbands could also be held guilty of aggravated rape as they would fall within the meaning of the word \relative\. To appreciate this argument, the relevant provision needs to be looked at closely: Section 376 – Punishment for rape. (2)(f) – Being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman., A close perusal of the provision would show that while the preceding clauses (a) to (e) of sub‑section (2)(f) deal with a situation where the victim is confined to a physical space under the physical or constructive control of the offender, succeeding clauses (g) to (n) of the same sub‑section relate to women placed in vulnerable circumstances. Clause (f) of sub‑section (2) of Section 376 seeks to bring those offenders who are in a position of trust or have authority over the woman‑victim within the rape law. The persons specifically identified in clause (f) of sub‑section (2) of Section 376, without confining it to them, are a relative, guardian or teacher. Although the ordinary meaning of the word \relative\ would be a member of the family, whether related by blood or not, the expression \relative\ has not been defined either in the Indian Penal Code or in the Criminal Procedure Code, which creates an element of ambiguity., Therefore, looking at the provision holistically, in the context and setting in which the expression \relative\ is mentioned, the legislature intended to include only those relatives who are in a position of trust or authority such as a guardian or a teacher. It appears that the legislature intended to bring within the fold of clause (f) of sub‑section (2) of Section 376 offenders who, to begin with, had a platonic relationship with the victim. In other words, the offender's close bond with the victim was not suffused with sexual or romantic overtones., Thus, when the expression \relative\ is read contextually, the offending husband, in my view, would not fall within the ambit of the said expression and, therefore, the apprehension that the burden of proof would shift because of the presumption of lack of consent (as provided in Section 114A of the Evidence Act) would not arise in such cases. The principle of noscitur a sociis would apply to clause (f) of sub‑section (2) of Section 376 of the Indian Penal Code insofar as the expression \relative\ is concerned., The other argument advanced concerning clauses (h) and (n) of sub‑section (2) of Section 376, that they would lead to harsher punishment compared to husbands who are separated and covered under Section 376B, and therefore the Marital Rape Exception (MRE) should not be struck down, is misconceived. Section 376(2)(h) and Section 376(2)(n) concern gross cases and therefore fall in the category of aggravated rape. Section 376(2)(h) concerns rape of a woman who is known to be pregnant, while Section 376(2)(n) pertains to subjecting the same woman to repeated rape. In view of my conclusion that Section 376B deserves to be struck down, this submission can have no merit. These are acts which deserve the same punishment as prescribed by the legislature, irrespective of who the offender is., I must indicate that a substantial part of the arguments on both sides was directed to the issue concerning the presumption of constitutionality in respect of a pre‑constitutional statute such as the Indian Penal Code. Ms Nundy relied upon the observations made in Navtej Singh Johar (paragraphs 359 to 362) and Joseph Shine (paragraph 270) to buttress her argument that no such presumption applied to pre‑constitutional statutes., Mr Sai Deepak, on the other hand, contended that the judgment in Navtej Singh Johar is per incuriam. The reasons why he says so have been recorded hereinabove by me in sub‑paragraph (xix) of paragraph 9.1., It is not open for the Supreme Court of India to declare a judgment of the Supreme Court, which is binding under Article 141 of the Constitution, as per incuriam. See South Central Railway Employees Cooperative Credit Society Employees Union v. B. Yashodabai and Others (2015) 2 SCC 47. We are of the view that it was not open to the High Court of India to hold that the judgment delivered by the Supreme Court in South Central Railway Employees Cooperative Credit Society Employees' Union v. Registrar of Cooperative Societies (1998) 2 SCC 580 : 1998 SCC (L&S) 703 was per incuriam., If the view taken by the High Court of India is accepted, there would be total chaos in this country because, in that case, there would be no finality to any order passed by the Supreme Court of India. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished, overruled or set aside. The High Court of India had considered several provisions which, in its opinion, had not been considered or argued before the Supreme Court of India when CA No. 4343 of 1988 was decided., Furthermore, the following judgment of the Supreme Court of India has held that even obiter dicta is binding: Municipal Committee, Amritsar v. Hazara Singh (1975) 1 SCC 794. Although there is a contrarian view expressed by the Supreme Court of India in the matter of Periyar & Pareekanni Rubbers Ltd.,, Having said so, I have, in reaching my conclusion, presumed (for the sake of argument) that the impugned provisions are constitutional. However, after closely examining the arguments put forth by both sides, I have reached a definitive conclusion that the impugned provisions are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution. If litigants or lawyers are permitted to argue that something which was correct but was not argued earlier before the higher court, and on that ground the courts below are permitted to take a different view, possibly the entire law in relation to the precedents and ratio decidendi would have to be rewritten, which cannot be done. Moreover, by not following the law laid down by the Supreme Court of India, the High Court of India or the subordinate courts would also be violating the provisions of Article 141 of the Constitution of India., Judicial propriety, dignity and decorum demand that, being the highest judicial tribunal in the country, even obiter dictum of the Supreme Court of India should be accepted as binding. Declaration of law by that Court, even if it is only by way, has to be respected. However, not every statement contained in a judgment of the Supreme Court of India is attracted by Article 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court of India are on facts, and the Court itself has pointed out in Gurcharan Singh v. State of Punjab [1972 FAC 549] and Prakash Chandra Pathak v. State of Uttar Pradesh [AIR 1960 SC 195 : 1960 Cri LJ 283] that, as on facts, no two cases could be similar; its own decisions which were essentially on questions of fact could not be relied upon as precedents for decisions of other cases., In Director of Settlements v. M.R. Apparao [(2002) 4 SCC 638], the Supreme Court of India extensively elaborated upon the principle of binding precedent. Article 141 of the Constitution unequivocally indicates that the law declared by the Supreme Court of India shall be binding on all courts within the territory of India. The article empowers the Supreme Court of India to declare the law. It is, therefore, an essential function of the Court to interpret legislation. The statements of the Court on matters other than law, such as facts, may have no binding force as the facts of two cases may not be similar. What is binding is the ratio of the decision and not any finding of facts. The principle is found by reading a judgment as a whole, in the light of the questions before the Court, which forms the ratio and not any particular word or sentence. To determine whether a decision has declared law, it cannot be said to be law when a point is disposed of on concession; what is binding is the principle underlying a decision. A judgment of the Court has to be read in the context of questions which arose for consideration in the case in which the judgment was delivered. An obiter dictum, as distinguished from a ratio decidendi, is an observation by the Court on a legal question suggested in a case before it but not arising in such a manner as to require a decision. Such an obiter may not have a binding precedent as the observation was unnecessary for the decision pronounced, but even though an obiter may not have a binding effect as a precedent, it cannot be denied that it is of considerable weight., Besides this, it must be borne in mind that although a pre‑constitutional law like the Indian Penal Code is saved by the provisions of Article 372 of the Constitution, it is, inter alia, open to challenge under the relevant provisions of the Constitution, such as Articles 14, 15, 19(1)(a) and 21., Thus, while examining the validity of such legislation, one is required to keep in mind the changes that have been brought about in society and the alteration that has occurred over time, both in the world view as well as in the view held by the domestic constituents., The case in point is the judgment rendered by the Supreme Court of India in Anuj Garg. In this case, the Court was called to rule on the vires of Section 30 of the Punjab Excise Act, 1914, which prohibited employment of any man under the age of 25 years and any woman in any part of such premises in which liquor or intoxicating drugs were consumed by the public., The Court, while ruling upon the issue, made the following observations: The constitutionality of a provision will have to be judged keeping in view the interpretative changes of the statute affected by the passage of time. Referring to the changing legal scenario and having regard to the Declaration on the Right to Development adopted by the World Conference on Human Rights as also Article 18 of the United Nations Covenant on Civil and Political Rights, 1966, it was held (John Vallamattom case [(2003) 6 SCC 611] SCC p. 625, para 33) that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26‑1‑1950, but the Court is not precluded from taking into consideration subsequent events. It is further trite that a law, although constitutional when enacted, may become unconstitutional with the passage of time in view of the changed situation. Changed social psyche and expectations are important factors to be considered in the upkeep of law. Decision on relevance will often be a function of the time we are operating in., This brings me to the objections raised by MWT and Mr Kapoor with regard to the reliance placed by the petitioners on decisions of foreign courts and international covenants such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)., While an attempt has been made to distinguish the foreign judgments cited by Mr Gonsalves, Ms Nundy and the two amicus curiae, i.e., Mr Rao and Ms John, on the ground that the jurisdictions in which the judgments were rendered did not have a provision akin to Exception 2 to Section 375, the fact remains that each of these judgments except FWLD (Nepal) concerned sexual assault by a husband or ex‑husband on his wife, albeit in different settings., As indicated above, except for the judgment rendered by the Supreme Court of Nepal in FWLD (Nepal), which was a public interest petition, all other cases concerned women who had been raped by their husbands. Therefore, I will briefly advert to them to the extent they are relevant to the issue at hand., The judgment rendered by the European Court of Human Rights (ECHR) in CR v. UK examined, albeit at the behest of the convicted husband, another facet of the judgment rendered by the House of Lords in R v. R. The convicted husband, having lost right up to the House of Lords, filed an application under Article 7 of the European Convention on Human Rights, which stated that no one could be held guilty of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national law or international law at the time it was committed., Therefore, the husband's argument before the ECHR was that, as the provisions of Section 1(1)(a) of the Sexual Offences (Amendment) Act, 1976 had been interpreted to his prejudice for the first time by the Courts of England, he could not be convicted for the offence of rape. Having regard to Article 7 of the Convention, the ECHR should not consider his conduct in relation to any of the exceptions of the immunity rule. The ECHR applied the foreseeability test in rejecting the husband's application, holding that the husband should have reasonably foreseen that, over time, the law had dismantled the immunity previously available against the charge of marital rape., In People v. Liberta, the defendant‑husband had raped his wife while a temporary protection order passed by the Court was in operation. Under the statute in force in New York at that time, a husband could be held guilty only if the spouses were living apart; otherwise they were deemed not to be married under the statute., The defendant's husband, however, argued that the temporary protection order did not constitute living apart and hence he could not be convicted of rape. Therefore, the argument was that, since he remained married to his wife at the time the rape was alleged, he came within the ambit of the Marital Rape Exception (MRE), both with respect to the charge of rape and sodomy., Besides this, the argument was that the subject penal law was gender‑based and under‑inclusive, and therefore constitutionally defective., On facts, the Court found that because of the prohibition in the temporary protection order the couple were, in law, living apart and therefore were not married., The Court also concluded that the subject penal law was constitutionally invalid on account of under‑inclusion and because it was not gender‑neutral. The Court grappled with whether to declare the entire statute a nullity or merely sever the exemption. It observed that while the marital exemption is subject to an equal protection challenge because it classifies unmarried men differently than married men, the equal protection clause does not prohibit a State from making classifications, provided the statute does not arbitrarily burden a particular group. Where a statute draws a distinction based upon marital status, the classification must be reasonable and based upon some ground of difference that rationally explains the different treatment. The Court found no rational basis for distinguishing between marital rape and non‑marital rape; the rationales asserted in defence of the exemption were based upon archaic notions about consent and property rights incident to marriage and could not withstand scrutiny. Consequently, the marital exemption for rape in the New York statute was declared unconstitutional. Having found that the statutes for rape in the first degree and sodomy in the first degree were unconstitutionally under‑inclusive, the Court considered the appropriate remedy. When a statute is constitutionally defective because of under‑inclusion, a court may either strike the statute, making it applicable to nobody, or extend its coverage to those formerly excluded. The Court chose to strike the marital exemption from sections 130.35 and 130.50 of the Penal Law and the gender exemption from section 130.35, so that any person who engages in sexual intercourse or deviate sexual intercourse with another person by forcible compulsion is guilty of either rape in the first degree or sodomy in the first degree., Because the statutes under which the defendant was convicted are not being struck down, his conviction is affirmed. Though the decision does not \create a crime,\ it enlarges the scope of two criminal statutes. The Court recognised that a court should be reluctant to expand criminal statutes due to the danger of usurping the role of the Legislature, but in this case overriding policy concerns dictated following such a course to avoid the catastrophic effect of striking down the statutes and creating a hiatus. Courts in other states have applied these principles in eliminating an unconstitutional exemption from a criminal statute and thereby enlarging the scope of the statute., As alluded to above, in FWLD, the Supreme Court of Nepal was called upon to examine the constitutional validity of Chapter 1 on rape found in the Country Code. This chapter, by not including in the definition of rape non‑consensual sexual intercourse between spouses, extended immunity to the offending husband. The State, represented by the Attorney General, advanced arguments similar to those presented by the intervenors: (i) married and unmarried women cannot be treated alike, therefore the equality clause is not violated; (ii) the impugned provision was framed keeping in mind that once parties enter into marriage, consent for sexual intercourse is permanent; (iii) other remedies are available to the injured wife, such as divorce and having the husband booked for battery; (iv) it is for the Legislature to decide what acts need to be criminalised and the punishment to be imposed; (v) it is not in conformity with Hindu religion to have a husband take consent to have sexual intercourse with his own wife., The Supreme Court of Nepal, after relying upon various international conventions including CEDAW and the judgment of the New York Court of Appeals in People v. Liberta, concluded that there is a gap in criminal law insofar as it does not include marital rape as a criminal offence.
id_412	10	The Supreme Court of India went on to rule that since norms and values in criminal law had to keep pace with time, that gap was required to be filled. Consequently, while the writ petition was quashed (a procedure peculiar to Nepal) holding that the impugned definition of rape was not inconsistent with the Constitution, a direction was issued to the Parliament to introduce a Bill to fill the gaps concerning marital rape. It appears that the gap pointed out in FWLD (Nepal) was filled; however, the punishment provided to offending husbands was considerably less. Insofar as the offending husband was concerned, under Section 3(6) of the Chapter on Rape, the punishment ranged between three to six months, whereas in other cases, the period of incarceration was much longer, which was correlated to the age of the victim. This provision was challenged in Jit Kumari (Nepal). In this case, the Supreme Court of India found that the petitioner had been sexually abused by her husband. The petitioner, on the other hand, had argued that because the punishment imposed on the offending husband in a case involving marital rape was minimal, he would be released on bail pending adjudication of his appeal, leading to further victimisation. This plea found favour with the Supreme Court of India and, accordingly, a direction was issued to the State to amend the law to reconsider the quantum of punishment concerning marital rape., The judgment of the Supreme Court of the Philippines in People v. Edgar also concerned the issue of marital rape. The complainant wife had been subjected to rape by her husband in the presence of her children. Several defences were taken including that the wife had falsely accused the husband of rape; the wife had extramarital affairs and that the wife wanted to usurp her husband's business. The Supreme Court of the Philippines, after taking note, inter alia, of the Hale doctrine, the provisions of the Convention on the Elimination of All Forms of Discrimination Against Women and the judgment of the New York Court of Appeals in People v. Liberta, made the following pertinent observations: Rape is a crime that evokes global condemnation because it is an abhorrence to woman's value and dignity as a human being. It respects no time, place, age, physical condition or social status. It can happen anywhere and it can happen to anyone, even, as shown in the present case, to a wife, inside her time‑honoured fortress, the family home, committed against her by her husband who vowed to be her refuge from cruelty. The pronouncement is an affirmation to wives that our rape laws provide the atonement they seek from their sexually coercive husbands. Husbands are once again reminded that marriage is not a license to forcibly rape their wives. A husband does not own his wife's body by reason of marriage. By marrying, she does not divest herself of the human right to exclusive autonomy over her own body and thus, she can lawfully opt to give or withhold her consent to marital coitus. A husband aggrieved by his wife's unremitting refusal to engage in sexual intercourse cannot resort to felonious force or coercion to make her yield. He can seek succor before the Family Courts that can determine whether her refusal constitutes psychological incapacity justifying an annulment of the marriage. Sexual intimacy is an integral part of marriage because it is the spiritual and biological communion that achieves the marital purpose of procreation. It entails mutual love and self‑giving and as such it contemplates only mutual sexual cooperation and never sexual coercion or imposition. The Court is aware that despite the noble intentions of the pronouncement, menacing personalities may use this as a tool to harass innocent husbands. In this regard, safeguards in the criminal justice system are in place to spot and scrutinise fabricated or false marital rape complaints and any person who institutes untrue and malicious charges will be made answerable under the pertinent provisions of the Indian Penal Code and/or other laws., Insofar as the application of international conventions and covenants is concerned, the established law is that courts in India can take recourse to international covenants as long as they are not inconsistent with domestic municipal law. As a matter of fact, the domestic courts are under an obligation to give due regard to international conventions and norms for construing domestic laws when there is no inconsistency between them. A case in point is Githa Hariharan v. RBI (1999) 2 SCC 228. In this case, the Supreme Court of India while construing the provisions of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and Section 19(b) of the Guardian and Wards Act, 1890, which were challenged on the ground that they violated the equality clause in the Constitution, took recourse to the Convention on the Elimination of All Forms of Discrimination Against Women and the Beijing Declaration to reach a conclusion that a woman could not be relegated to an inferior position vis‑a‑vis her guardianship rights as a minor when pitted against the father's right as the child’s guardian. In Vishaka and Apparel Export Promotion Council cases, the Supreme Court of India also referred to the Convention on the Elimination of All Forms of Discrimination Against Women. In Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360, Justice V. R. Krishna Iyer, while interpreting Section 51 of the Code of Civil Procedure, drew inspiration from the International Covenant on Civil and Political Rights. The Supreme Court of India has repeatedly relied upon international conventions, covenants and declarations as aid to reasoning in matters concerning violation of civil rights and human rights., Thus, in the context of the foregoing discussion, it is instructive to bear in mind the following brief extracts from certain conventions and declarations, which are relevant to the issue at hand and are not inconsistent with domestic law. Article I of the Convention on the Elimination of All Forms of Discrimination Against Women defines “discrimination against women” as any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. Article 2 states that States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake to adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women; to establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination; and to repeal all national penal provisions which constitute discrimination against women. Article 15 provides that States Parties shall accord to women equality with men before the law. Article 16 provides that States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and, in particular, shall ensure, on a basis of equality of men and women, the same rights and responsibilities during marriage and at its dissolution., General Recommendation No. 19 on violence against women, adopted by the Committee on the Elimination of Discrimination Against Women, clarified that discrimination against women includes gender‑based violence, i.e., violence directed against a woman because she is a woman or that affects women disproportionately, and that it constitutes a violation of their human rights. The Declaration on the Elimination of Violence against Women includes marital rape in Article 2(a), highlighting the heightened awareness in most jurisdictions that violence against women is an obstacle to equality, development and peace and to the enjoyment of rights that are natural to any human being., The Beijing Declaration states that violence against women is an obstacle to the achievement of equality, development and peace. Violence against women both violates and impairs the enjoyment by women of their human rights and fundamental freedoms. The declaration notes that women and girls are subjected to physical, sexual and psychological abuse across all societies, and that the low social and economic status of women can be both a cause and a consequence of such violence. It defines violence against women as any act of gender‑based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats, coercion or arbitrary deprivation of liberty, whether occurring in public or private life. The declaration enumerates physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children, dowry‑related violence, marital rape, female genital mutilation and other harmful practices, as well as violence in the community and state‑sanctioned violence., The foregoing extracts from the Convention on the Elimination of All Forms of Discrimination Against Women, the Declaration on the Elimination of Violence against Women and the Beijing Declaration are self‑explanatory. It is now well‑recognised in most jurisdictions that violence against women includes gender‑based violence, inter alia marital rape. Marital rape is recognised as an offence in more than fifty countries., As noted earlier, both Mr Sai Deepak and Mr Kapoor have called for judicial self‑restraint because, despite several debates on the merits and demerits of marital rape exemption in various forums, the legislature chose not to change the status quo. While noticing this objection, I have taken note of the documents cited in this regard., Messrs Sai Deepak and Kapoor are right that despite the views expressed for and against retaining the marital rape exemption in forums such as the Parliamentary Standing Committee, the Lok Sabha Committee on Empowerment of Women, the 172nd Law Commission and the Justice Verma Committee, the status quo continues to obtain. In my view, this is no reason not to intervene. I am convinced that the marital rape exemption is violative of married women’s fundamental rights under Articles 14, 15, 19(1)(a) and 21 of the Constitution of India. The fact that the legislature has not intervened, as observed by the Supreme Court of India in the Navtej Singh Johar case in the context of the challenge to Section 377 of the Indian Penal Code, is a neutral fact and cannot impede the court’s examination of the constitutional validity of the marital rape exemption., The Supreme Court of India observed that the legislature’s choice not to amend the law, despite the 172nd Law Commission Report specifically recommending deletion of Section 377, may indicate that Parliament did not think it proper to delete the provision, but this is a neutral fact and need not be taken into account. The Court’s task is to determine whether constitutional provisions have been transgressed; if so, the provision must be struck down., I am persuaded to attach weight to the observations and final recommendations made by the Justice Verma Committee in its report on marital rape, which were based on a thorough examination of the prevailing ecosystem concerning rape law. The Committee noted that the exemption for marital rape stems from an outdated notion of marriage that regarded wives as property of their husbands. Under the common law of coverture, a wife was deemed to have consented at the time of marriage to intercourse with her husband at his whim, and that consent could not be revoked. This immunity has now been withdrawn in most major jurisdictions., In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond recognition. Lord Keith declared that marriage is now regarded as a partnership of equals, not a relationship in which the wife is subservient property. The European Court of Human Rights in C.R. v. United Kingdom endorsed that a rapist remains a rapist regardless of his relationship with the victim, aligning with the Convention on Human Rights. Similar developments occurred in Canada, where the Criminal Code provisions denying criminal liability for marital rape were repealed in 1983; in South Africa, where marital rape was criminalised in 1993 by the Prevention of Family Violence Act; and in Australia, where the common‑law marital rape immunity was abolished in all jurisdictions by 1991., These jurisdictions have also recognised that consent should not be implied by the relationship between the accused and the complainant. In the Canadian 2011 Supreme Court decision R v. J.A., Chief Justice McLachlin emphasized that the relationship does not change the inquiry into consent. In South Africa, the 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act provides that a marital or other relationship is not a valid defence against rape or sexual violation., Even where marital rape is recognised as a crime, there is a risk that judges may treat it as less serious, resulting in more lenient sentences, as happened in South Africa. The South African Criminal Law (Sentencing) Act of 2007 now provides that the relationship between victim and accused may not be regarded as a substantial and compelling circumstance justifying deviation from mandatory minimum sentences for rape., It is also important that the legal prohibition on marital rape be accompanied by changes in the attitudes of prosecutors, police officers and society. In South Africa, despite legal developments, rates of marital rape remain high, with a 2010 study indicating that 18.8 % of women are raped by their partners. Reporting and conviction rates remain low, aggravated by beliefs that marital rape is acceptable or less serious. Changes in law therefore need to be accompanied by widespread awareness programmes. The CEDAW Committee, in Vertido v. The Philippines, emphasised the importance of appropriate training for judges, lawyers, law‑enforcement officers and medical personnel in understanding crimes of rape and other sexual offences in a gender‑sensitive manner., We therefore recommend that (i) the exception for marital rape be removed; (ii) the law specify that a marital or other relationship between perpetrator and victim is not a valid defence against rape or sexual violation; that the relationship is not relevant to the inquiry into consent; and that marriage or intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape., We must rely upon Prof. Sandra Fredman of the University of Oxford, who has submitted to the Committee that training and awareness programmes should be provided to ensure that all levels of the criminal justice system and the public are aware that marriage should not be regarded as extinguishing the legal or sexual autonomy of the wife., The Justice Verma Committee was constituted in the aftermath of the brutal gang‑rape of a young lady in Delhi on 16 December 2012. Several recommendations were made, some of which were incorporated into the Criminal Law (Amendment) Act, 2013, including the expansion of the definition of rape, enhancement of the minimum mandatory sentence under Section 376(1) of the Indian Penal Code and insertion of Section 376B, which substituted Section 376A. However, the legislature stopped short of accepting the Committee’s recommendations concerning the removal of the marital rape exemption., Given the foregoing discussion, I am of the view that the recommendations were in line with constitutional mores and morality, as reflected in the Supreme Court of India judgments in Joseph Shine and Navtej Singh Johar., Thus, even if I concur with Messrs Sai Deepak and Kapoor that the State should define, monitor and sanction appropriate conduct in sexual activity between married couples, the State, as a representative of society, shares the responsibility to condemn and punish sexual abuse in all forms. When the State exempts criminal acts such as forced sex within marriage, it creates unequal distribution of rights conferred by the Constitution. Consequently, husbands who commit the offence do not suffer the rigour of the law and wives receive no protection., Before concluding, I must examine the material and judgments cited on behalf of the intervenors. None of the cited material persuades me to hold that the impunity available to husbands because of the marital rape exemption should not be disturbed. In other words, the status quo should not continue until the Executive or the Legislature decides to intervene., The 167th Report of the Parliamentary Standing Committee of Home Affairs on the Criminal Law (Amendment) Bill, 2012, was cited to demonstrate that despite deliberation, the matter was not taken forward and the marital rape exemption remained on the statute. The report shows that several members expressed serious concerns about retaining the exemption, noting that consent in marriage cannot be consent forever and that there should be room for a wife to raise the issue of marital rape., The judgment in Laxmi Devi concerned a challenge to Section 47A of the Indian Stamp Act, 1899 (as amended by Andhra Pradesh Act 8 of 1998). The provision required a party to deposit fifty percent of the stamp duty as a condition precedent for making a reference to the Collector. The provision was challenged as unconstitutional. The court observed that while judges should exercise restraint in economic statutes, they must be activist in defending civil liberties and fundamental rights, because the Constitution, modeled on the US Bill of Rights and the French Declaration of the Rights of Man, provides fundamental rights that courts must protect even against the legislature., Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408 concerned casual workers employed on a daily‑wages basis. An industrial dispute led to a Labour Court award directing regularisation and payment of wages at par with regular employees. The High Court modified the award, and the Supreme Court of India held that regularisation was not a mode of appointment and disagreed with the directions of the High Court.
id_412	11	In the facts of the case, the court noted that the workmen were employed pursuant to an agitation by the union and on compassionate grounds; and not via a regular mode. It is in these circumstances that the valid court held that the directions issued for continuing the workmen in service would defeat the constitutional scheme concerning public employment. In my view, the observations were clearly fact specific. The court's observation that the creation of posts, appointments and regularisation fell within the domain of the executive and/or the legislature, was contextual, which cannot be applied where a statute or a provision is challenged on the ground that it violates the fundamental rights of the affected party., Likewise, the judgment rendered in Suresh Seth v. Commissioner, Indore Municipal Corporation & Ors. (2005) 13 Supreme Court Cases 287 has no applicability whatsoever to the present case. That case involved a challenge to an order passed by the High Court while hearing a civil revision petition. The petitioner before the Supreme Court had challenged the appointment of a person who occupied the post of Mayor on the ground that he could not have held the post of Mayor as he was a sitting member of the Legislative Assembly. However, by the time the matter reached the Supreme Court, the concerned member's tenure as Mayor had expired, and therefore, the appeal had been rendered infructuous. Thus, while dismissing the appeal the court observed that no mandamus could be issued for amendment of the Madhya Pradesh Municipal Corporation Act, 1956 disentitling a person from holding more than one post., In my opinion, there is no such situation obtaining in the instant matters., In the matter of Madhu Kishwar & Ors. v. State of Bihar & Ors., a challenge was laid to certain provisions of the Chota Nagpur Tenancy Act, 1908 (hereinafter CNT Act). The provisions disabled tribal women from succeeding to the estate of her lineal ascendant. The custom prevailing amongst persons belonging to Scheduled Tribes restricted the line of succession to male descendants. The provisions of the CNT Act were challenged by way of an Article 32 petition. The principal plea was to bring the provisions of the CNT Act in line with the general principles obtained in the Hindu Succession Act, 1956 (hereinafter HSA), which put women at par with male descendants. The impediment to such an approach was Section 2(2) of the HSA., A three‑member bench rendered the decision. The majority, while reading down Sections 7 and 8 of the CNT Act, did not strike down the provisions. The majority protected the rights of female descendants under Sections 7 and 8 by suspending the exclusive right of male succession till the female descendants chose other means of livelihood, manifested by abandonment and/or release of the holding. The minority view, however, reasoned that the general principles found in the HSA could be applied to Scheduled Tribes., The observations of the majority contained in paragraph 5 59 note that judicial activism to enforce personal law principles on sensitive tribal people, valuing their customs, traditions and usages, is a difficult and mind‑boggling effort. Brother K. Ramaswamy, J. observed that Indian legislatures and governments may be reluctant to act for political reasons, and an activist court, though apolitical, could legislate broadly on the lines suggested by petitioners. However, an activist court is not fully equipped to cope with the details and intricacies of the legislative subject and can at best advise and focus attention on the State polity, urging it to act. The court must exercise self‑restraint., During the pendency of the proceedings, an exercise carried out by the Bihar Tribal Consultative Council revealed that if the changes suggested were effected in the HSA, the land over which tribals had ownership rights could get alienated., Both the plurality and the minority views moved in the direction of granting relief to tribal women, though the methodology and degree of relief varied. The bench took recourse to judicial tools to alleviate the suffering of female tribals., In contrast, in the instant matters, the most recent study, i.e., the Justice Verma Committee Report, demonstrated an imminent need for removing MRE from the statute. Despite a well‑considered report, there has been no movement since 2013 on the issue of MRE. Therefore, the ratio of the judgment in Madhu Kishwar is not applicable to the intervenors' claim that a statute or provision violative of fundamental rights cannot be struck down., The manner in which judicial tools are employed is demonstrated in the judgment of the Constitution Bench in the C.B. Gautam case. That case concerned a challenge to Section 269UD of the Income Tax Act, 1961 (hereinafter Act), which empowered the Central Government to pre‑emptively acquire an immovable property that was the subject of an agreement to sell if it was undervalued by more than 15 percent. The provision also vested in the Central Government a right in such property, free from all encumbrances., Two principal questions arose before the Constitution Bench. First, whether the provision should embed leeway for an intending purchaser or seller to demonstrate why an order for compulsory purchase ought not to be passed. Second, whether the expression 'free from all encumbrances' should be struck down as having no rational nexus with the object of preventing tax evasion., The Supreme Court of India read into the provision the principles of natural justice, requiring a show‑cause notice to the intending purchaser or seller, and struck down the expression 'free from all encumbrances'. The Court observed that a statute or part thereof can be read down to save it from being struck down, but such reading down is not permissible where it contradicts the express language of the statute., Thus, the Court excised the expression 'free from all encumbrances' as it failed the test of Article 14, while sustaining the remaining parts of the provision., The judgment rendered in Census Commissioner & Ors. v. R. Krishnamurthy, (2015) 2 Supreme Court Cases 796, is also not applicable to the issue at hand. In that case, the Supreme Court considered whether a direction issued by the High Court to the Census Commissioner that census should be carried out in a manner that caste‑wise enumeration and tabulation be reflected in its report was warranted, given that no such direction had been issued by the Central Government under Section 8 of the Census Act, 1948 (as amended in 1993)., The Court held that the direction was flawed because the controversy before the High Court concerned a challenge to the appointment of a person to a public office on the basis of his belonging to a Scheduled Tribe. The High Court noted that there were no Scheduled Tribe persons residing in the Union Territory of Pondicherry and that a presidential notification under Article 342 of the Constitution had not been issued. Consequently, the High Court concluded that no reservations for Scheduled Tribes could be made in Pondicherry, yet it issued directions to the Census Commissioner even though he was not a party to the proceedings., The Court observed that interference with a policy decision and the issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act confers power on the Central Government to issue notification regarding the manner in which the census is to be carried out, and the competent authority may issue directions. It is not within the domain of the court to legislate. Courts interpret law and may, in certain circumstances, fill gaps by applying the doctrine of constitutional silence or abeyance, but they must not plunge into policy‑making by issuing a writ of mandamus. Judicial restraint is required, remembering that a policy decision or notification that is arbitrary may invite the frown of Article 14 of the Constitution., The Social Action Forum for Manav Adhikar & Anr. v. Union of India, Ministry of Law & Justice & Ors. (2018) 10 Supreme Court Cases 443 was a case where the Supreme Court considered the viability of some directions issued by one of its benches in the matter of Rajesh Sharma & Ors. v. State of Uttar Pradesh & Anr. (2018) 10 Supreme Court Cases 47260 in the context of Section 498A of the Indian Penal Code. The Supreme Court concluded that some of the directions in Rajesh Sharma did not protect the interests of married women, the object of Section 498A, and therefore did away with the direction for the constitution of a Family Welfare Committee under the aegis of the District State Legal Authority., While doing so, the Supreme Court recognized that a court could, in certain cases, in furtherance of fundamental rights, issue directions in the absence of law. Reference was made to Lakshmi Kant Pandey v. Union of India (1984) 2 Supreme Court Cases 244; Vishaka; and Common Cause (A Registered Society) v. Union of India & Anr. (2018) 5 Supreme Court Cases 1., State of Bihar & Ors. v. Bihar Distillery Ltd., (1997) 2 Supreme Court Cases 453, was cited by the intervenors to rely upon the dictum that the Court should presume the constitutionality of a statute enacted prior to the Constitution coming into force as it represented the will of the people. Even after applying the presumption of constitutionality doctrine to MRE, I could not agree with the intervenors that MRE was not violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution., In the Raja Ram Pal case, the Supreme Court considered two issues: (i) whether the two Houses of Parliament, in the exercise of powers, privileges and immunities under Article 105 of the Constitution, could expel their respective members; and (ii) if such power existed, whether it could be subject to judicial review and, if so, the scope of such review. Mr Kapoor cited this judgment to contend that the motive of the Legislature in enacting a particular statute was beyond judicial scrutiny. The Constitution Bench, however, observed that where governance is rooted in the Constitution, absolutism is abhorred, and while deference is owed to Parliament as a coordinate organ, its acts are amenable to judicial scrutiny., The principles that can be culled from the discussion are: (a) Parliament is a coordinate organ and its actions, though deserving deference, are amenable to judicial scrutiny; (b) The constitutional system abhors absolutism and no one, however lofty, can claim to be the sole judge of the power given under the Constitution; (c) The fact that Parliament is an august body does not preclude the existence of judicially manageable standards to review its exercise of power; (d) The judiciary is not prevented from scrutinising the validity of legislative actions that trespass on fundamental rights; (e) Proceedings tainted by substantive illegality or unconstitutionality are not protected from judicial scrutiny; (f) An ouster clause attaching finality to a determination ordinarily ousts the court’s power to review the decision, but not on grounds of lack of jurisdiction, nullity, gross illegality, irrationality, violation of constitutional mandate, mala fides, non‑compliance with natural justice or perversity., The judgment in Sunil Batra v. Delhi Administration & Ors. (1978) 4 Supreme Court Cases 49461 was relied upon by the intervenors to emphasize that if one construction of a provision is consistent with the Constitution and another renders it unconstitutional, the Court would prefer the former construction., I cannot agree with the intervenors that MRE, read in any way, is not unconstitutional and morally repugnant. The judgment in Sunil Batra was based on a letter from the petitioner concerning a brutal assault by a Head Warder on another prisoner, after which the Court issued directions to the Delhi Administration in the interest of incarcerated persons., A perusal of the judgment in Anuja Kapoor v. Union of India & Ors., W.P.(C) No.7256/2019, dated 09 July 2019 shows that directions were sought to embed marital rape as a ground for divorce. The Court, by a brief order, dismissed the petition, holding that drafting of law is the function of the Legislature, not the Court, which is more concerned with interpretation of law., The argument advanced on behalf of the petitioners is that only when the impugned provisions are struck down or removed from the statute can the Legislature take the next steps. I tend to agree with this submission. However, the order does not suggest that the Court cannot examine the legal tenability of the impugned provisions or that a litigant oppressed by a provision must wait until the executive or Legislature acts., In Mohd. Hanif Quareshi & Ors. v. State of Bihar & Ors., AIR 1958 Supreme Court 73162, a challenge was laid to bans imposed in the States of Bihar, Uttar Pradesh and Madhya Pradesh concerning the slaughter of cows. Several petitions under Article 32 were filed to strike down the ban. The Court reiterated the meaning, scope and effect of Article 14 and held that the presumption of constitutionality doctrine applies to statutes enacted by the Legislature, placing the burden on the challenger., The Court upheld the Bihar Act insofar as it prohibited the slaughter of cows of all ages, including calves, but declared void the provision prohibiting the slaughter of she‑buffaloes, breeding buffaloes and working buffaloes, as it did not prescribe a test or requirement as to their age or usefulness, violating the petitioner's fundamental rights under Article 19(1)(g)., The Court held that unless the differentia on which classification is based meets the nexus test, such classification would not pass muster under the fundamental rights guaranteed by the Constitution. The instant matters are similar, and the judgment supports the contentions advanced by the petitioner., Briefly, in Bombay Dyeing and Manufacturing Co. Ltd. v. Bombay Environmental Action Group & Ors., AIR 2006 Supreme Court 1489, the challenge concerned the interpretation of the amended Development Control Regulation No.58 framed by the State of Maharashtra. A public interest petition filed before the Bombay High Court by residents of Mumbai sought to protect open spaces for ecological balance and public housing. The High Court allowed the writ petition, holding that the amended DCR 58 would also apply to land that became open space after demolition of structures. The matter reached the Supreme Court, which observed that constitutional courts have the power to review legislation, subordinate legislation and policy decisions, subject to usual caveats., The Court accepted the dictum enunciated in Anil Kumar Jha v. Union of India & Ors. (2005) 3 Supreme Court Cases 150 that it could interfere even with a political decision, although it may amount to entering the political thicket. The Court also observed that when issues before it concern enforcement of human rights, its interpretation and application of constitutional principles is not limited to the black letter of the law, and that expansive meanings have been given to rights through creative interpretations, leading to the creation of new rights., Shri Ram Krishna Dalmia & Ors. v. Justice S.R. Tendolkar & Ors., AIR 1958 Supreme Court 538, was cited in the Mohd. Hanif Quareshi judgment. Apart from reiterating the presumption of constitutionality and that the burden lies on the challenger, the Court highlighted two principles: (f) while good faith and knowledge of existing conditions on the part of the legislature are presumed, if there is nothing on the face of the law or surrounding circumstances to justify the classification, the presumption cannot be carried to assume undisclosed reasons; and (ii) a statute that directs its provisions against individuals without a reasonable basis of classification is naked discrimination and will be struck down, as in Ameerunnissa Begum v. Mahboob Begum (1953) SCR 404 and Ramprasad Narain Sahi v. State of Bihar (1953) SCR 1129., The facts in Beeru v. State NCT of Delhi 2014 (1 JCC 509) were that the appellant was accused of raping a 14‑year‑old girl, his niece. The trial court convicted him and imposed life imprisonment, which the High Court reduced to ten years while sustaining the conviction. The observations in paragraph 36 of the judgment, referring to the difference in punishment under sub‑section (1) versus sub‑section (2) of Section 376 of the Indian Penal Code, merely state a factual distinction., Saregama India Ltd. v. Next Radio Ltd. & Ors. (2022) 1 Supreme Court Cases 701 concerned a challenge to an interim order issued by a Division Bench of the Madras High Court in a series of appeals. The appellants had filed appeals under Article 226 of the Constitution to assail the validity of Rule 29(4) of the Copyright Rules, 2013 (hereinafter 2013 Rules). They contended that the High Court, via an interim order, had rewritten the provisions of Rule 29(4). The Supreme Court agreed with the appellants and observed that a court could not rewrite a statute or transgress the domain of policy making., The Supreme Court reiterated its power of judicial review, stating that the court may evaluate the validity of legislation or rules made under it. A statute may be invalidated if it is ultra vires constitutional guarantees or transgresses the legislative domain entrusted to the enacting legislature., In the Shayara Bano case, two questions arose: (i) whether the Shariat Act recognized and enforced triple talaq as a rule of law to be followed by the courts in India; and (ii) whether personal laws are outside the ambit of Article 13(1) of the Constitution. The petitioners, supported by the Union of India, challenged the triple talaq (talaq‑e‑bidaat) practiced by Sunnis. The argument advanced by the Muslim Personal Law Board was that personal laws were beyond the pale of fundamental rights and could not be struck down, and that the legislature alone should remove triple talaq under Article 25(2). Both the petitioners and the Union of India opposed this plea., The Supreme Court held that triple talaq was manifestly arbitrary, allowing marital ties to be broken capriciously by a Muslim man without any attempt at reconciliation, and was violative of Article 14 of the Constitution. Accordingly, the Court declared Section 2 of the Shariat Act void to the extent that it recognized and enforced triple talaq., The argument advanced by Mr Sai Deepak that the Court only declared triple talaq unconstitutional and did not criminalise it, and therefore the principles laid down in Shayara Bano would not apply to the instant matters, is untenable. The judgment detailed the contours of Article 14, observing that the thread of reasonableness runs through the entire fundamental rights chapter; what is manifestly arbitrary is unreasonable and, being contrary to the rule of law, violates Article 14.
id_412	12	Thus, merely because the consequential steps that should be taken upon triple talaq being struck down were not up for consideration before the Supreme Court of India, would not have me conclude that the principles enunciated by the Supreme Court of India concerning Article 14 cannot be taken recourse to in the instant matters., The judgment in Kartar Singh v. State of Punjab, (1994) 3 Supreme Court Cases 569, to my mind, has no relevance to the issue at hand. Kartar Singh dealt with a challenge laid in a bunch of petitions to various Terrorist and Disruptive Activities (Prevention) Act statutes. The majority judgment upheld the legislative competence of Parliament to frame the impugned laws. The Court also used the reading down tool and held that the word \abet\ as defined in Section 2(1)(a) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, being vague and imprecise, would mean \actual knowledge or reason to believe\ to bring the person within the ambit of the definition. Inter alia, the Court also struck down Section 22 of the 1987 Act on the ground that it violated Article 21 of the Constitution. Although the intervenors placed reliance on paragraph 130 of the judgment, in my opinion, none of these observations has any bearing on the issue at hand., In Indian Express Newspapers (Bombay) Private Limited & Ors. v. Union of India & Ors. (1985) 1 Supreme Court Cases 641, the Supreme Court of India was considering the tenability of Section 32 petitions filed before it. The petitions assailed the imposition of import duty on newsprint. The petitioners argued that the imposition of duty on newsprint, which enjoyed total exemption till a particular date, had a direct and crippling effect on freedom of speech and expression guaranteed by the Constitution. The Court ultimately directed the Government to re‑examine the issue and consider the extent to which exemption ought to be granted in respect of newsprint imported after 1 March 1981, taking into account relevant matters. In this context, certain other directions were also issued, but this judgment does not advance the case of the intervenors., The judgment rendered in State of Tamil Nadu & Ors. v. Ananthi Ammal & Ors., (1995) 1 Supreme Court Cases 519, in my opinion only reiterates the well‑established principles enunciated by the Courts in various judgments concerning Article 14 of the Constitution. The observations relied upon by the intervenors are contained in paragraph 7 of the judgment, wherein the Court observed that when a statute is challenged as being violative of Article 14, it should be put to test on its own strength, and although aid of another statute on a similar subject could be taken, it can at best be referred to indicate what is reasonable in a given context., The issue that arose for consideration in Arvind Mohan Sinha v. Amulya Kumar Biswas & Ors., (1974) 4 Supreme Court Cases 222, was whether the Probation of Offenders Act, 1958 (the \1958 Act\) would apply to respondents who were charged and convicted for possession of gold liable to be confiscated under Section 111 of the Customs Act, 1962. The Supreme Court held that there was no impediment to the 1958 Act being applied to the respondents. An observation in paragraph 12 noted the different punishments meted out for similar offences and drew attention to antecedents as well as the physical and mental condition of the offenders, which, according to the Court, had to be borne in mind while applying the provisions of the 1958 Act., The case of Vidya Viswanathan v. Kartik Balakrishnan, 2015 (15) Supreme Court Cases 21, has no applicability to the issue which arises for consideration in the present case. That case dealt with whether mental cruelty could form the basis for seeking a decree for divorce. The Court sustained the High Court judgment and established that mental cruelty could indeed be a ground for divorce. The present matter, however, concerns whether a husband can seek sexual communion with his wife without her consent, which is entirely different., In Sant Lal Bharti v. State of Punjab, (1988) 1 Supreme Court Cases 366, the Supreme Court was called upon to rule whether the judgment of the High Court ought to be sustained after it dismissed the appellant's writ petition. The Court noted that the petition lacked material particulars and therefore it was not inclined to interfere with the High Court judgment. The Court observed that Article 14 does not authorize striking down a statute of one State by comparing it with a statute of another State on the same subject, and that the impugned statute was not discriminatory. The Court further held that while examining the viability of impugned provisions, it may look at judgments and legislation of other jurisdictions for guidance, not as binding authority., The issue which arose for consideration in H.P. Gupta & Anr. v. Union of India & Ors., (2002) 10 Supreme Court Cases 658, concerned the grant of two advance increments to Junior Telecom Officers who acquired a degree in engineering while in service. The appellants, already possessing a degree, challenged the action as discriminatory. The Supreme Court dismissed the challenge, observing that perfect equality on an absolute scientific basis is unattainable and that certain inequities may exist. The observations in that case cannot be compared with the impairment of rights of married women exposed to a criminal offence., In Sushil Kumar Sharma v. Union of India & Ors., (2005) 6 Supreme Court Cases 281, the Supreme Court dealt with an Article 32 petition seeking a declaration that Section 498A of the Indian Penal Code ought to be declared unconstitutional. The Court repelled the challenge and observed that if a provision of law is misused, it is for the legislature to amend, modify or repeal the same. This observation sustains the view that if the Marital Rape Exception is struck down, any consequent misuse can be dealt with by the Courts or, if necessary, by the legislature., Mr. Kapoor cited Vishaka v. State of Rajasthan to establish that a legal vacuum, if any, can be filled by the Supreme Court of India exercising powers under Article 142 of the Constitution. While I agree that the Court can fill a vacuum, the present matter is not about filling a legal vacuum but about striking down the impugned provisions that violate the fundamental rights of married women., Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors., (2009) 16 Supreme Court Cases 517, was cited by Mr. Kapoor to support his submission that this Court could make recommendations to the executive and/or the legislature. The observations in paragraph 34 of that judgment are matter‑specific and do not directly support the present argument., The observations made by the Supreme Court in Sivasankaran v. Santhimeenal, 2021 Supreme Court Online SC 702, concerning what constitutes a marriage, are undisputed. However, the issue before us is whether the edifice of marriage would survive when a woman is subjected to marital rape., The judgment in Amit Kumar v. Suman Beniwal, 2021 Supreme Court Online SC 1270, is cited by Mr. Kapoor to argue that provisions in other statutes such as the Hindu Marriage Act can aid the wife. While civil remedies exist for married women, there is no remedy in law when a married woman is subjected to rape by her husband., Thus, if I were to capture how women view the subsisting inequity displayed daily in their relationship with men, I could quote a short extract from an article contributed by Ms. Marya Manes titled \The Power Men Have over Women\: \The power men have over women is that they wear neckties, use shaving cream and are usually bigger than we are. They are not necessarily brighter, but they usually have us where they want us... Everything in the long history of the male has conspired toward his self‑assurance as a superior being. Everything in the long history of the female has conspired toward her adaptability to him, whether as a wife, lover or mother. We are bred to care for what he thinks, feels and needs more than he is for what we think, feel and need. There is no valid comparison between a man's economic support of a woman and her hourly involvement in caring for him. We worry more when he looks seedy than we do because we notice him more. We worry more when he looks bored at a party than we do. (He doesn't see it, anyway.) We concern ourselves daily with what he would like to eat, whom he would like to see, where he would like to go.\, To sum up, the message that married women wish to convey to their husbands can be expressed by the words used by the late Justice Ruth Bader Ginsburg, former United States Supreme Court Justice, when appearing as amicus in Sharron A. Frontiero and Joseph Frontiero v. Elliot L. Richardson, Secretary of Defense, et al., 1973 United States Supreme Court Reports 101, which are attributed to Ms. Sarah Moore Grimke: \I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks.\, The sentencing view of the Court of Appeal of New Zealand is relevant: \An example of a consistent approach to sentencing in a jurisdiction where marital rape has become a crime is to be found in the observations of the Court of Appeal of New Zealand in relation to sentencing under section 2 of the Crimes Amendment Act (No. 3) 1985, which abolished the marital immunity. The court rejected the suggestion that there should be a separate regime of sentencing for rape in cases where the parties were married, and said 'Parliament has made no distinction in the penalties between spousal and other kinds of rape, and the sense of outrage and violation experienced by a woman in that position can be equally as severe.'\, It is evident, as in other foreign jurisdictions, that the Executive may have to provide sentencing guidelines for trial courts to ensure greater consistency. I also agree with counsel for the intervenors that the law should be gender‑neutral. These are steps that must be taken by the Legislature or the Executive., Having noticed this, I agree with the submission of Mr. Gonsalves and Ms. Nundy that reforms in this regard cannot be cited as an impediment to the Supreme Court of India striking down the Marital Rape Exception, which otherwise does not pass muster under Articles 14, 15, 19(1)(a) and 21 of the Constitution. These are the next steps for the Legislature. The Court's jurisdiction to examine the matter is not tied to those steps; they may be taken later and, if escalated to the Court, may require judicial examination, but they are not presently within the ken of the Court., Before all this is done, a married woman's right to bring the offending husband to justice needs to be recognized. This door must be unlocked; the rest can follow. As a society we have remained somnolent for far too long. Deifying women has no meaning if they are not empowered. They are our equal half; some would delightfully say our better half. It is time that all stakeholders bite the bullet. It would be tragic if a married woman's call for justice is not heard even after 162 years since the enactment of the Indian Penal Code. Self‑assured and good men have nothing to fear if this change is sustained., As noted at the outset, the issue raises concerns of enormous public importance, with both legal and social connotations. It has already attracted the attention of different High Courts, including the Gujarat High Court in Nimeshbhai Bharatbhai and the Karnataka High Court in Hrishikesh Sahoo v. State of Karnataka, 2022 Supreme Court Online Karnataka 371. Therefore, in my view, the matter, involving a substantial question of general importance concerning the fundamental rights of a large number of married women, necessitates a decision by the Supreme Court of India., I have not addressed the submissions of the respondents, i.e., the Union of India and the Government of National Capital Territory of Delhi. The Union of India, through the Solicitor General, stated that it does not wish to take a stand in the matter and would like to engage in consultation before moving further. The GNCTD, represented by Ms. Nandita Rao, withdrew her submissions on the last day of the hearing. Practically, the State made no case for or against the continuance of the impugned provisions., The debate among the remaining counsel was rich, passionate and engaging; it would have been richer had the Solicitor General assisted the Court. I place on record my deep appreciation for Mr. Gonsalves, Mr. Sai Deepak, Mr. Kapoor, Ms. Nundy and the two amicus curiae, Ms. John and Mr. Rao. The material they placed before us helped me reach what I believe is the right conclusion. Regrettably, I was not able to persuade Hon'ble Justice C. Hari Shankar to my point of view. I respect that., For the foregoing reasons, I declare and hold: (i) that the impugned provisions – Exception 2 to Section 375 of the Indian Penal Code (the Marital Rape Exception), Section 376B of the Indian Penal Code and Section 198B of the Code of Criminal Procedure – insofar as they concern a husband or separated husband having sexual intercourse with his wife (who is not under 18 years of age) without her consent, are violative of Articles 14, 15, 19(1)(a) and 21 of the Constitution and are therefore struck down; (ii) the aforesaid declaration shall operate from the date of this decision; (iii) offending husbands do not fall within the ambit of Section 376(2)(f) of the Indian Penal Code, and consequently the presumption created under Section 114A of the Indian Evidence Act, 1872 will not apply to them; (iv) a certificate of leave to appeal to the Supreme Court of India is granted under Article 134A(a) read with Article 133(1)(a) & (b) of the Constitution as the issue raises a substantial question of law requiring a decision by the Supreme Court; (v) the writ petitions W.P. (C) Nos. 284/2015, 5858/2017 and 6024/2017 are disposed of in the aforesaid terms; W.P. (Criminal) No. 964/2017 is kept apart and will be listed by the Registry for appropriate orders on 26 August 2022; (vi) parties will bear their respective costs.
id_412	13	With her consent, when at the time of giving such consent, by reason of unsoundness of mind, intoxication, or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of what she consents to. With or without her consent, when she is under eighteen years of age. When she is unable to communicate consent. Explanation 1: For the purposes of this section, vagina shall also include labia majora. Explanation 2: Consent means an unequivocal voluntary agreement when the woman, by words, gestures or any form of verbal or non‑verbal communication, communicates willingness to participate in the specific sexual act, provided that a woman who does not physically resist the act of penetration shall not, by reason of that fact alone, be regarded as consenting to the sexual activity. Exception 1: A medical procedure or intervention shall not constitute rape. Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape., The issue at hand is fundamentally simple, as the principles for invalidating a statutory provision as unconstitutional are trite and well‑recognised. They are, quite clearly, not res integra. All that the Supreme Court of India has to do is to apply these principles to the impugned Exception. A simple issue has, however, been made unreasonably complex, and has occupied weeks of precious Court time, merely because the issue was debated on the fundamentally erroneous premise that the husband, in having sex with his wife without her consent, commits rape, and the impugned Exception unconstitutionally precludes his wife from prosecuting him therefor. This presumption, as the discussion hereinafter will reveal, completely obfuscates the actual issue in controversy., I deem it appropriate at the outset to state that there can be no compromise on sexual autonomy of women, or the right of a woman to sexual and reproductive choice. Nor is a husband entitled, as of right, to have sex with his wife against her will or consent. Conjugal rights, as learned counsel for the petitioners correctly assert, end where bodily autonomy begins. The Supreme Court of India can, in this day and age, not lend its imprimatur to any theory that, by reason of marriage, a husband is entitled, as a matter of right, to engage in sexual relations with his wife at his will and pleasure. Sexual activities between man and woman, within or outside marriage, require, in legal speak, consensus ad idem., I differ with learned counsel for the petitioners and learned amici curiae in the sequitur they perceive as naturally flowing from the wife's right to sexual and bodily autonomy. They would submit that the only logical consequence of granting complete sexual autonomy to a woman, whether she be a wife or not, is outlawing the impugned Exception. I am unable to agree. The impugned Exception chooses to treat sex and sexual acts within a surviving and subsisting marriage differently from sex and sexual acts between a man and a woman who are unmarried. It extends this distinction to holding that, within marital sexual relations, no rape, as statutorily envisioned by Section 375 of the Indian Penal Code, can be said to occur. I am firmly of the view that, in thus treating sexual acts between a husband and wife, whether consensual or non‑consensual, differently from non‑consensual sexual acts between a man and a woman not bound by marriage, the legislature cannot be said to have acted unconstitutionally. The distinction, in my view, is founded on an intelligible differentia having a rational nexus to the object sought to be achieved by the impugned Exception, which fulfills not only a legal but also a laudatory object, and does not compromise any fundamental rights guaranteed by Part III of the Constitution of India., Viewed more empirically, it becomes clear that the petitioners seek merely to propound what, in their view, should be the law. The written submissions filed by Ms Karuna Nundy acknowledge that an offence which should be rape is undermined by being treated as cruelty, grievous hurt or any other lesser offence. This single submission indicates that the petitioners are, proverbially, barking up the wrong legal tree. Other learned counsel, including Ms Rebecca John, have submitted that, while spousal sexual violence is punishable under various other statutory provisions, those provisions are insufficient to punish what the petitioners consider rape by the husband of his wife. There is, however, not one iota of material to which learned counsel for the petitioners allude, to the effect that an act of sex by a husband with his wife, against her consent, is legally rape. Nor is there any judicial proclamation that every act of non‑consensual sex by a man with a woman is rape. Given this position, I find it astonishing that learned counsel for the petitioners, almost in one voice, castigated the impugned Exception as unconstitutional because it prevents a wife from prosecuting her husband for committing rape. The closest argument from the petitioners is Ms Nundy's submission that, post‑Constitution, the object of rape law is that no man should be able to force a woman to have sex with him without her consent. The submissions of Ms Nundy do not, however, illuminate the source of this object of rape law. Equally, the object of rape law may be stated as non‑consensual sex by a woman at the instance of a man who is not her husband should be punishable as rape. These are merely shots in the dark and do not aid in arriving at a finding regarding the constitutionality of the impugned Exception. Simply put, it is not open to anyone to contend that a statutory provision is unconstitutional merely because it is not what he feels it should be. De lege lata connotes the law that binds, not de lege ferenda. Any legitimacy in the petitioners' claim, therefore, would have to be urged before another forum, not before a writ High Court of India exercising jurisdiction under Article 226 of the Constitution of India., The Indian Penal Code was enacted in 1860 by the Legislative Council of India and was based on a draft Penal Code prepared in 1837 by Lord Thomas B. Macaulay. Section 359 of the draft Penal Code, later transformed into Section 375 of the Indian Penal Code, read as follows: \359. Rape. A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: (1) Against her will; (2) Without her consent, while she is insensible; (3) With her consent, when her consent has been obtained by putting her in fear of death or of hurt; (4) With her consent, when the man knows that her consent is given because she believes that he is a different man to whom she is or believes herself to be married; (5) With or without her consent, when she is under nine years of age.\ Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife is in no case rape., Note B in the Notes on Clauses to the draft Penal Code dealt with the General Exceptions provided thereunder, and read thus: This chapter has been framed in order to obviate the necessity of repeating in a penal clause a considerable number of limitations. Some limitations relate only to a single provision, or to a very small class of provisions. Thus the exception in favour of true imputations on character (clause 470) belongs wholly to the law of defamation and does not affect any other part of the Code. The exception in favour of the conjugal rights of the husband (clause 359) belongs wholly to the law of rape and does not affect any other part of the Code. Every such exception ought to be appended to the rule which it is intended to modify., The Indian Law Commission deliberated on the draft Penal Code and presented the First Report on Penal Laws, 1844. Ms Rebecca John, learned amicus curiae, provided extracts from the report which essentially debate the advisability of the age of nine years envisaged in the draft Code. They do not reflect any deliberation on the Exception to Clause 359 which later metamorphosed into the impugned Exception in Section 375., Consequent to these deliberations, the Indian Penal Code was enacted in 1860. Section 375, as originally enacted, read as follows: \375. Rape. A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the five following descriptions: (1) Against her will; (2) Without her consent, while she is insensible; (3) With her consent, when her consent has been obtained by putting her in fear of death or of hurt; (4) With her consent, when the man knows that her consent is given because she believes that he is a different man to whom she is or believes herself to be married; (5) With or without her consent, when she is under ten years of age.\ Explanation: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception: Sexual intercourse by a man with his own wife, the wife not being under ten years of age, is in no case rape. Clause 359 of the draft Penal Code was therefore adopted, with the sole modification that the age of nine years envisaged in clause Fifthly of Clause 359 was enhanced to ten years in Clause Fifthly of Section 375, and a similar stipulation that the wife should not be under ten years of age was inserted in the Exception., It is important to note that there is nothing to indicate that the marital exception to rape, contained in the Exception to Section 375 of the Indian Penal Code, or even in the proposed Exception in Clause 359 of the draft Penal Code, was predicated on the Hale dictum. Sir Matthew Hale, in 1736, stated: \The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband, which she cannot retract.\ Repeated allusion to the Hale dictum was made by learned counsel for the petitioners. This dictum is anachronistic and cannot sustain constitutional or legal scrutiny given the evolution of thought since its articulation. To my mind, however, this aspect is completely irrelevant, as the Hale dictum does not appear to have been the raison d'être of either Section 359 of the draft Penal Code or Section 375 of the Indian Penal Code., The 42nd Report of the Law Commission of India, dealing with the Indian Penal Code and submitted in June 1971, opined on the marital exception to rape as follows: The exception in Section 375 provides that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. The punishment for statutory rape by the husband is the same when the wife is under twelve years of age; when she is between twelve and fifteen years of age, the punishment is imprisonment up to two years, or fine, or both. Prosecutions for this offence are very rare. It would be desirable to take this offence altogether out of the ambit of Section 375 and not to call it rape even in the technical sense. The punishment for the offence may be provided in a separate section. Under the exception, a husband cannot be guilty of raping his wife if she is above fifteen years of age. The exception fails to take note of a special situation, namely when the husband and wife are living apart under a decree of judicial separation or by mutual agreement. In such a case, the marriage technically subsists, and if the husband has sexual intercourse with her against her will or without her consent, he cannot be charged with the offence of rape. This does not appear to be right. In such circumstances, sexual intercourse by a man with his wife without her consent should be punishable as rape., In the light of the above discussion, Section 375 may be revised as follows: \375. Rape. A man is said to commit rape of a sexual intercourse with a woman, other than his wife, (a) against her will; or (b) without her consent; or (c) with her consent when it has been obtained by putting her in fear of death or of hurt, either to herself or to anyone present at the place; or (d) with her consent, knowing that it is given in the belief that he is her husband.\ Explanation I: Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Explanation II: A woman living separately from her husband under a decree of judicial separation or by mutual agreement shall be deemed not to be his wife for the purpose of this section., A separate section penalising sexual intercourse by a man with his child wife may run as follows: \376A. Sexual intercourse with child wife. Whoever has sexual intercourse with his wife, the wife being under fifteen years of age, shall be punished (a) if she is under twelve years of age with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine; and (b) in any other case, with imprisonment of either description for a term which may extend to two years or with fine, or with both.\, The issue of the impugned Exception was again debated in the 172nd Law Commission Report on Review of Rape Laws, released in March 2000. Paragraph 3.1.2.1 of the report reads: Representatives of Sakshi wanted us to recommend the deletion of the Exception, with which we are unable to agree. Their reasoning runs: where a husband, because of some physical injury to his wife, is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognised by law; if so, there is no reason why concession should be made in the matter of the offence of rape/sexual assault whether the wife happens to be above fifteen or sixteen years. We are not satisfied that this Exception should be recommended for deletion since that may amount to excessive interference with marital relationship., A Committee for proposing amendments to the criminal law was constituted under the chairmanship of Honourable Justice J.S. Verma, former Chief Justice of India, popularly known as the Verma Committee. In its recommendation dated 23 January 2013, paragraph 79 of the Report stated: (i) The exception for marital rape be removed. (ii) The law ought to specify that: (a) The marital or other relationship between the perpetrator or victim is not a valid defence against the crimes of rape or sexual violation; (b) The relationship between the accused and the complainant is not relevant to the enquiry into whether the complainant consented to the sexual activity; (c) The fact that the accused and victim are married or in another intimate relationship may not be regarded as a mitigating factor justifying lower sentences for rape. The Verma Committee also commented, at the outset of its Report on Marital Rape, on the Hale doctrine, and paragraphs 73 to 78 of the Report discuss how the marital exception to rape has been outlawed in other jurisdictions., The issue was thereafter deliberated on the floor of the House, resulting in the 167th Report of the Department‑Related Parliamentary Standing Committee on Home Affairs relating to the Criminal Law (Amendment) Bill, 2012. Paragraph 5.9.1 of the Report reads: While discussing Section 375, some Members felt that the word rape should be kept within the scope of sexual assault. The Home Secretary clarified that there is a change of terminology and the offence of rape has been made wider. Some Members suggested that there should be some room for a wife to raise the issue of marital rape. It was also felt that no one takes marriage so simply that a woman will just go and complain blindly. Consent in marriage cannot be consent forever. Several Members felt that marital rape has the potential of destroying the institution of marriage. The Committee felt that if a woman is aggrieved by the acts of a husband, there are other means of approaching the court. In India, the family system has evolved and is moving forward. The family can resolve problems and there is also a provision under the law for cruelty against women. It was therefore felt that if marital rape is brought under the law, the entire family system will be under great stress and the Committee may perhaps be doing more injustice., Even while expanding the scope of sexual acts which, if non‑consensual, would amount to rape, the Criminal Law (Amendment) Act, 2012, which came into effect on 3 February 2013, allowed the impugned Exception to remain unscathed., With that prefatory discussion, I proceed to the submissions advanced at the Bar. Submissions of Ms Karuna Nundy, learned counsel for the RIT Foundation, oppose the impugned Exception., Arguing for the RIT Foundation, Ms Nundy termed the challenge to the impugned Exception as being about respecting the right of a wife to say no (or yes) to her husband's demand for sex and recognizing that marriage is no longer a universal licence to ignore consent., Extensive reliance was placed by Ms Nundy on the judgement of the Supreme Court in Independent Thought, which, according to her, is binding for a number of propositions relevant to the present dispute and is sufficient to sustain the challenge. Because there was no direct challenge to the impugned Exception, the Supreme Court was constrained to restrict its pronouncement to the validity of the below‑fifteen‑years‑of‑age caveat in the Exception. Ms Nundy submits that part of the ratio decidendi of Independent Thought is squarely applicable to the constitutionality of the whole of Exception 2 to Section 375. She has commended the inversion test for interpretation of precedents and cites State of Gujarat v. Utility Users Welfare and Nevada Properties Pvt Ltd v. State of Maharashtra. Applying the test, Ms Nundy submits that the decision is an authority for the following propositions: (a) A woman cannot be treated as a commodity having no right to say no to sexual intercourse with her husband (Para 64); (b) Marriage to the victim does not make a rapist and non‑rapist (Para 73); (c) The impugned Exception creates an artificial distinction between married and unmarried women (Para 77); (d) The woman is not subordinate to or property of her husband (Para 82); (e) The impugned Exception is discriminatory as it creates anomalous situations where the husband can be prosecuted for lesser offences but not rape (Para 77); (f) Removing the marital rape exception will not create a new offence since it already exists in the main part of the Indian Penal Code (Paras 81‑85); (g) The view that criminalising marital rape would destroy the institution of marriage is unacceptable, since marriage is not institutional but personal, and nothing can destroy the institution of marriage except a statute that makes marriage illegal and punishable (Para 90). Reversing each of these propositions would have prevented Independent Thought from reaching its conclusions; therefore, the judgement is an authority for each proposition., Pre‑constitutional legislations, submits Ms Nundy, are not entitled to any presumption of constitutionality, even if they have been continued by Parliament post‑independence. She relies on Joseph Shine v. Union of India and Navtej Singh Johar v. Union of India. In light of the law expounded in these decisions, Ms Nundy submits that the inaction of Parliament in removing the impugned Exception from Section 375, despite the Verma Committee report, is merely a neutral fact., Ms Nundy emphatically contends that Article 13 of the Constitution obliges every Court to strike down a provision found to be unconstitutional, relying on Independent Thought and Peerless General Finance v. RBI. The petitioners, she submits, seek to extend the fundamental right of a wife against forced sexual intercourse by her husband, granting full protection of the law by labeling the offence as rape., Ms Nundy further contends that the impugned Exception to Section 375 and Section 376B of the Indian Penal Code and Section 198B of the Criminal Procedure Code, 1973 violate Article 14 of the Constitution. Article 14 is infringed by a statute not only if it is discriminatory, but also if it is manifestly arbitrary. She argues that the mere existence of an intelligible differentia is not sufficient; the differentia must also have a rational nexus to the object of the statute, which must be legitimate. The impugned Exception provides immunity from prosecution for rape to a man forcibly having sex with his wife, but not to a man forcibly having sex with a woman who is not his wife, which is irrational and manifestly arbitrary. It is equally arbitrary to decide not to efface the impugned Exception in order to protect the institution of marriage, as the sanctity of an institution cannot be accorded prominence over individual rights. The purported rationale of the impugned Exception has outlived its purpose and does not square with constitutional morality; therefore it is manifestly arbitrary. She relies on paragraph 102 of the Joseph Shine report and paragraphs 168, 169 and 181 of that decision, which held that any provision postulating a notion of marriage that subverts equality is manifestly arbitrary and bad in law. The Supreme Court, in paragraph 181 of Joseph Shine, rejected the notion that, by marriage, a woman consents in advance to sexual relations with her husband, calling such a notion offensive to liberty and dignity. The impugned Exception traces its origin to Sir Matthew Hale's anachronistic notion that, by marriage, a woman surrenders her sexual autonomy. Protecting the institution of marriage is not an adequate determining principle and has been specifically rejected by the Supreme Court in paragraph 74 of Independent Thought and paragraph 212 of Joseph Shine., Ms Nundy concedes that there is an intelligible differentiation between married, separated and unmarried persons in all manner of laws that meets Article 14. She cites, for example, spousal privilege conferred by Section 1229 of the Indian Evidence Act, 1872. However, she argues that before assessing whether the intelligible differentia has a rational nexus with the object of the impugned Exception, the constitutionality of that object must be examined. Relying on paragraph 26 of the Nagpur Improvement Trust v. Vithal Rao report and paragraph 58 of the Subramaniam Swamy v. CBI report, she submits that an unconstitutional object invalidates the statute enacted on its basis., Ms Nundy then advances submissions regarding the pre‑Constitutional and post‑Constitutional objects of the impugned Exception. The pre‑Constitutional object, she submits, as per the notes of Lord Macaulay in 1838, was the creation of an exception in favour of the conjugal rights of the husband. She refers to paragraph 36 of the John Vallamattom v. Union of India report, which recognised that a provision not unconstitutional at enactment may become unconstitutional with the passage of time. She also cites the provision that no person who is or has been married shall be compelled to disclose any communication made to him during marriage, unless consent is given, except in suits between married persons or proceedings where one married person is prosecuted for a crime against the other. The Supreme Court has held that it would be immoral to discriminate a woman on the ground of sex. Post‑Constitutional amendments to Section 375 of the Indian Penal Code indicate that the object of rape laws is the protection of women from violence and the preservation of their bodily integrity and sexual autonomy, foregrounding consent. Based on this premise, Ms Nundy contends that the object of rape laws post‑Constitution is that no man should be able to force a woman to have sex with him without her consent. She argues that the impugned Exception is unconstitutional because (i) it nullifies the object of the main provision, i.e., the object of rape laws; (ii) it places the privacy of marriage above the privacy of the individual in the marriage; and (iii) protection of conjugal rights by not penalising forced sex of a wife is not a legitimate object post‑Constitution, as it does not align with the post‑Constitutional understanding of conjugal rights.
id_412	14	Regarding the first submission, i.e., that the impugned Exception nullifies the object of rape laws, she relies on the principle that an exception or a proviso cannot nullify or set at naught the real object of the main enactment, for which she relies on S. Sundaram Pillai v. V.R. Pattabiraman and Director of Education v. Pushpendra Kumar. The alleged object of the impugned Exception, she submits, of protection of conjugal rights and protection of the institution of marriage, would nullify the object of Section 375, criminalising rape. The impugned Exception, she submits, is unconstitutional as it places the institution of marriage as an object above the privacy and other Article 21 rights of an individual in the marriage. Protection of the institution of marriage, submits Ms. Nundy, cannot be a legitimate object to sustain the impugned Exception, such a contention having been specifically rejected by the Supreme Court of India in paragraph 92 of the report in Independent Thought. The institution of marriage cannot, according to her, be accorded preeminence over the Article 21 rights of the wife. Even on facts, she submits, a marriage could be damaged or destroyed by rape, but not by a complaint of rape. According to her submissions, an individual's right not to be raped cannot be held hostage to an imposed conception of marriage. Ms. Nundy relies on paragraph 192 of the report in Joseph Shine to contend that privacy accorded to the institution of marriage cannot override the privacy and other Article 21 rights of the individuals involved., Protection of the conjugal rights of the husband, contends Ms. Nundy, is not a legitimate object to justify the impugned Exception in our post‑Constitution era, as it does not align with our understanding of conjugal rights at present. Forced sexual intercourse, she submits, is not a conjugal right, as is apparent from the fact that a Court, when enforcing a decree for restitution of conjugal rights, can only direct the husband and wife to cohabit, and cannot forcibly direct them to have sexual intercourse. Sexual intercourse is not, therefore, a conjugal right of the husband. Conjugal rights, in her submission, begin and end at cohabitation and consortium, and anything beyond this is merely a conjugal expectation, the remedy for denial of which is only divorce., Further exemplifying the submission, Ms. Nundy contends that by no means can insertion of an object, against the woman's will, or facilitating the rape of his wife by other persons, be a conjugal right throwing in sharp relief the illegitimacy of the object. Husbands who indulge in such acts, she points out, stand exempted from the application of Section 375 by the impugned Exception. According to Ms. Nundy, if a wife refuses to consent to sexual intercourse with her husband, the impugned Exception sanctions and indeed encourages the husband to have forced sexual intercourse with his wife. Such forced sexual intercourse by the husband becomes punishable only if the ingredients of lesser offences such as Section 354, or of related but distinct offences such as Section 498-A of the Indian Penal Code are fulfilled. By virtue of the marital rape exception, therefore, a husband can enforce his conjugal right (as he understands it) without going to a court of law. This, in her submission, encourages some husbands to do illegally that which cannot be done legally, on the purport that they are exercising their conjugal right., Assault or criminal force to a woman with intent to outrage her modesty. Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. For the purposes of this section, cruelty means (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand., By contending that allowing a husband to enforce his conjugal expectation to sex by permitting him to have forced sexual intercourse with his wife without penal consequences under Section 376 of the Indian Penal Code, is akin to saying that a wife, who believes that she is entitled to maintenance from her husband, is permitted to sell her husband's personal belongings in property, without his consent, and appropriate the proceeds towards her maintenance., Section 376. Punishment for rape. (1) Whoever, except in the cases provided for in sub‑section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine. (2) Whoever, (a) being a police officer, commits rape (i) within the limits of the police station to which such police officer is appointed; or (ii) in the premises of any station house; or (iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or (b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or (c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (g) commits rape during communal or sectarian violence; or (h) commits rape on a woman knowing her to be pregnant; or (j) commits rape on a woman incapable of giving consent; or (k) being in a position of control or dominance over a woman, commits rape on such woman; or (l) commits rape on a woman suffering from mental or physical disability; or (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. (3) Whoever commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub‑section shall be paid to the victim., Anti‑rape laws, submits Ms. Nundy, is the protection of bodily integrity and sexual autonomy of women., Ms. Nundy proceeds, thereafter, to address the issue of the existence of an intelligible differentia, and its rational nexus with the object sought to be achieved by the impugned Exception. She has attempted to deal with the issue from the point of view of the perpetrator, the victim and the act., Apropos the perpetrator, Ms. Nundy concedes, frankly, that there may be an expectation of, and even an in‑principle arrangement to, sex in marriage, and indeed an intelligible differentia on this basis between a husband and non‑husband. However, she submits, what the impugned Exception in fact protects, is not this expectation of sex, but elevates this to a husband's rights to forcible sexual intercourse with his wife at any given time, under any circumstances, irrespective of her consent to it. This, she submits, has no rational nexus to any of the objects examined above. She has highlighted, in this context, paragraph 75 of the report in Independent Thought especially the observation, in the said paragraph, that a rapist remains a rapist and marriage with the victim does not convert him into a non‑rapist and rape is rape whether it is described as such or is described as penetrative sexual assault or aggravated penetrative sexual assault. Thus, submits Ms. Nundy, the Marital Rape Exception privileges a man's right to exercise his sexual desire and nullifies his wife's right to not engage in sexual acts., Ms. Nundy further submits that, in rape, the spectrum of harm caused may vary, and is independent of the relationship between the parties. She has sought to exemplify this by contradistinguishing a situation in which the live‑in partner of a woman has sex with her while she is sleeping, presuming consent, with a case in which the husband of a woman, with his friends, gang rapes her. The inequity in the impugned Exception, submits Ms. Nundy, is underscored by the fact that, in the former case, the live‑in partner of the woman could be prosecuted for rape, whereas the husband, in the latter case, cannot., Ms. Nundy further submits that the impugned Exception gives husbands a blanket immunity for any of the sexual acts enumerated in clauses (a) to (d) of Section 375, including the gross acts envisaged in clauses (c) and (d) thereof. Even in a case in which the rape would result in the victim being reduced to a permanent vegetative state, or where the act involves gang rape, she submits that the impugned Exception immunizes the husband from being prosecuted for rape. She submits that, therefore, the Marital Rape Exception effectively nullifies consent to the specific acts of sexual intercourse including forced sex with another person, forced anal sex, and bundles such forced sexual acts with other, lesser offences such as cruelty, simple assault or grievous assault., The impugned Exception, submits Ms. Nundy, gives a license to husbands to force sex and, at the very least, condones a situation where a man forces his wife to have sex by calling it not rape. This, in her submission, is nothing more than a license for a husband to force his wife into sexual intercourse without penal consequences for rape (whether or not there are penal consequences for the lesser, cognate offences). Ms. Nundy emphasises that marriage requires equality of partnership and love, and is inherently inimical to the concept of forced, non‑consensual sexual relations. Even within the expectation or broad agreement of sexual relations and marriage, therefore, she submits that specific consent for sexual acts cannot be done away with. She seeks to exemplify this submission, and to highlight the perceived inequity in the impugned Exception, thus: currently, without specific consent for sexual acts there is sanction to situations where despite sickness, disease and injury, a wife is still forced to have sexual intercourse. She may object to having sex in public. Indeed, if the husband suffers from gonorrhoea, or if the wife is on her period, is busy at work, or just not in the mood, the Exception overrides that non‑consent and says such forced sex will not be rape., In this backdrop, Ms. Nundy emphasizes that, even where consent was not specifically to be found in the provision, the Supreme Court of India has made consent central and indispensable to criminal provisions concerning sexual relations, for which purpose she relies on Navtej Johar and Joseph Shine. Specifically, Ms. Nundy cites paragraph 232 of the report in Navtej Johar and paragraph 169 of the report in Joseph Shine., The necessity of fair labelling of the offence is, according to Ms. Nundy, the core of the case that the petitioners seek to espouse. It is no argument, according to Ms. Nundy, to contend that, when sexual acts, offensive to the wife, are perpetrated by the husband, he can be prosecuted for grievous hurt, or for outraging her modesty. These offences, along with their gravamen and ingredients, she submits, are substantially different from rape. It would be impermissible to label an act of rape as an act of cruelty or grievous hurt. The need to call a rape a rape, she submits, is paramount. The label of the offence, she submits, should represent the nature of the law‑breaking by the offender. This, she submits, is further represented in the defences, punishments and consequences of being convicted of the offence., Ms. Nundy relies on paragraph 592 of the report in Navtej Johar, in which the Supreme Court of India observed that the effect of conviction under Section 377 of the Indian Penal Code was typecasting consensual sex of LGBTQIA+ persons on par with sexual offences like rape. Per corollary, she submits, an offence which should be rape cannot be permitted to be undermined by treating it as cruelty, grievous hurt or any other lesser offence. She contends that not calling a rape within marriage, a rape, also has far‑reaching consequences for the protection of the victims. According to her, when it comes to married women, the State shirks responsibility and does not afford her the same level of care and protection that a woman raped by someone other than her husband is entitled to receive. Women raped by their husbands do not, in her submission, get protections under the law available to other rape victims such as Section 357A (victim compensation), Section 357C (treatment of rape victims), Section 154 (providing information in cognizable cases), Section 164 (postponing of proceedings), Section 327 (deeming the criminal court to be an open court) and Section 164A (medical examination of the rape victim) of the Criminal Procedure Code, Section 228A (proscribing disclosure of identity of any victim of rape) of the Indian Penal Code and Section 146 (questions which may lawfully be asked in cross‑examination) of the Evidence Act. These provisions, she submits, apply only where the accused is charged under Section 376 of the Indian Penal Code., Adverting once again to her understanding of fair labelling, Ms. Nundy submits that the label rape has an important role in expressing social disapproval of a certain sort of sexual wrong. Further, on the point of punishability under other provisions, of the act of a husband in compelling his wife into sexual intercourse without her consent, Ms. Nundy submits that the said provisions would apply only if their ingredients are fulfilled. The resultant anomaly, according to her, is that the specific act committed by the husband, the harm to his wife and indeed the mens rea to commit forced sexual intercourse remain unpunished. The husband, who has committed an act of forced sexual intercourse, she submits, ends up being prosecuted under provisions that do not seek to regulate forced sexual intercourse in the first place. On individual facts, she submits, where the specific ingredients of other offences do not exist, the victim‑wife of an act of non‑consensual sexual intercourse by the husband may not be able to prosecute him at all, if the impugned Exception is allowed to stay. At the end of the day, she submits, it is not about punishing the husband, but is about punishing the act., Ms. Nundy, thereafter, proceeds to submit that the impugned Exception infringes Article 21 of the Constitution. She submits that the bodily integrity of women and indeed all humans deserves the highest threshold of protection under constitutional and criminal law. There should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity. This right to physical integrity, she submits, flows from the woman's right to life, dignity and bodily privacy under Article 21., Ms. Nundy submits that Article 15 of the Constitution obligates the Supreme Court of India to strike down the impugned Exception, which is founded on a stereotypical understanding of ascribed gender roles in a marriage, and is coupled with an ex facie infringement of fundamental rights. She submits that there is no compelling state interest in protecting the institution of marriage, as the State would seek to contend. Protecting husbands who facilitate the gang rape of their wives, or rape their wives by insertion of objects, or indeed have forced penile‑vaginal intercourse with their wives cannot be a way to further the institution of marriage or be called the conjugal rights of a husband., The impugned Exception, she further submits, also infringes Article 19(1)(a) of the Constitution and is, therefore, liable to be struck down even under the said provision. The expression of one's sexual desire, submits Ms. Nundy, is part of self‑expression protected under the said sub‑Article. At its heart, she submits that the Marital Rape Exception fails to protect to the full extent of the law a woman's non‑consent. In her words, the impugned provisions of law do not recognise the right of a married woman to say no to sexual intercourse with her husband. As a corollary, the impugned provisions also take away a married woman's ability to say a joyful Yes to sexual intercourse, both aspects of Exception 2 to Section 375 being contra Article 19(1)(a) and limiting a married woman's right to freedom of sexual expression and behaviour. In Ms. Nundy's submission, the offshoot of the impugned Exception is that the wife's sexual desire and consent is reduced to nullity., Addressing thereafter a substantially important issue, Ms. Nundy submits that, by striking down the impugned Exception, the Supreme Court of India would not be creating a new offence. Referring to Section 40 of the Indian Penal Code, Section 2(n) of the Criminal Procedure Code and Section 3(38) of the General Clauses Act, Ms. Nundy submits that an offence pivots on the act or omission, and not on the offender per se. What is punishable by the Indian Penal Code, she submits, is the act or thing done, though the parts of an offence may include a perpetrator, victim and the act. In her submission, the offence of rape under the Indian Penal Code is the act of forcible/non‑consensual intercourse (as described in sub‑clauses (a) to (d) and clauses firstly to sixthly), by a man upon a woman, which is entirely separate from the question of the relationship between the perpetrator and victim of the act. Thus, she submits, any act falling within the ambit of the provision would constitute the offence of rape. The Marital Rape Exception, she submits, grants immunity from prosecution to a particular class of offenders i.e. husbands which is rooted in the fiction of consent that India inherited from its colonial masters. Thus, according to Ms. Nundy, striking down the impugned Exception would not create a new offence, though a new class of offenders may be brought into the ambit of an existing offence. The impugned Exception, according to her, only provides an immunity from being prosecuted for the act of rape, which is already an offence in terms of Section 40 of the Indian Penal Code. She relies, for this proposition, on paragraphs 83 to 87 of the report in Independent Thought which held that, in rewriting the impugned Exception with respect to the age of the wife, it was not creating a new offence, but was merely creating a new class of offenders, as the act was already an offence in the main part of Section 375 and in the Protection of Children from Sexual Offences (POCSO) Act, 2012. In its judgement in Hiral P. Harsora v. Kusum Narottamdas Harsora, the Supreme Court of India, she submits, in effect created a whole new class of offenders by striking down the words adult male from Section 2(q) of the Protection of Women from Domestic Violence Act, 2005, which defines the term respondents. She has also relied, for this purpose, on the decisions in Balram Kumawat v. U.O.I. and Devidas Ramachandra Tuljapurkar v. State of Maharashtra, specifically citing paragraphs 4, 5, 23, 36, 37 and 40 of the former, and paragraphs 108 and 141 of the latter decision. She explains this submission thus: a combined reading of the judgements in Harsora, Devidas Ramachandra Tuljapurkar and Balram Kumawat show that there is a difference between creation of a new offence (which may be an act of a positive nature), versus the interpretation of the constituents of an existing offence, which is the traditional negative act of judicial review. If while adjusting the constitutional validity of a provision, the Supreme Court of India finds that it is unconstitutional, it must strike it down. If the corollary of striking it down is that a class of offenders, who were earlier not included within the ambit of a provision, may now be charged under that provision: this is not the creation of a new offence, but only a by‑product of the Court fulfilling its duty under Article 13. What would amount to creating a new offence would be if the Court was asked to alter the main ingredients of the acts constituting the offence itself. This principle, she submits, has also been applied in the context of the striking down of exemptions granted by taxing statutes, in which context she cites paragraphs 26 and 28 of the report in Motor General Traders v. State of A.P., To highlight the mischief that would result if any other interpretation were to be accepted, Ms. Nundy hypothesises a situation in which the Exception to rape is not based on the relationship of the perpetrator with the victim, but on the time at which the act is committed. In such a situation, she submits that the Exception would undoubtedly be unconstitutional, and liable to be struck down, even if, thereby, the Court were to be creating an offence, by rendering the act, even if committed during the earlier excepted times, offensive. That, she submits, cannot be a ground to refrain from striking down such an unconstitutional Exception., Addressing, next, a submission advanced in favour of retaining the impugned Exception, that, were the impugned Exception to be struck down, a husband would qualify as a relative for the purposes of Section 376(2)(f) and would, therefore, result in the burden of proof shifting to him to disprove the allegation of rape in view of Section 27 of the Evidence Act, Ms. Nundy seeks to allay the apprehension by contending that, in interpreting Section 376(2)(f), the mischief rule of statutory interpretation should be applied. One of the considerations, in applying the mischief rule is, according to her, the position in law prior to the enactment of the said provision. As Section 114A of the Evidence Act concerns only aggravated rape, absent such aggravating factors, an offender under Section 375 would not be subject to the rigour of the provisions of Section 376 which deal with aggravated rape. Another reason why Section 376(2)(f) would not apply to the husband, according to her, is because the word relative, in the said provision, is accompanied with the words guardian, teacher and a person in a position of trust or authority. It is only, therefore, where the accused is in a position of power over the complainant, akin to a fiduciary trust, she submits, that Section 376(2)(f) would apply., On the other hand, if the impugned Exception were to remain on the statute book, Ms. Nundy submits that husbands could get away with committing several forms of heinous and aggravated rape., Concerns about the possibility of misuse of Section 375, were the impugned Exception to be struck down, submits Ms. Nundy, besides being unfounded, are irrelevant to the issue of its constitutionality. She has referred to statistics to attempt to submit that a very small proportion of marital rape cases are reported. That apart, she relies on Government of A.P. v. G. Jaya Prasad Rao and Indira Jaising v. Supreme Court of India to contend that the possibility of misuse cannot be a ground for regarding a provision to be constitutionally fragile., Equally irrelevant, according to Ms. Nundy, are concerns regarding the disproportionate nature of the punishments envisaged by Section 376, were the impugned Exception to be struck down. Sentencing, she submits, is a matter of policy, regarding which there is a clear proscription on legislation by Courts. Thus, the quantum, the proportionality, or the disproportionality, of the minimum sentence envisaged by Section 376 cannot be a factor which could affect the decision of the Court concerned with the issue of constitutionality of the impugned Exception. If the impugned Exception fails to sustain constitutional scrutiny, she submits that it cannot survive, irrespective of the punishment that it may thereby entail, as prescribed in Section 376. That apart, she submits that the petitioners have constantly highlighted their concerns about the disproportionately high sentences envisaged in Section 376.
id_412	15	This problem, she submits, however, would apply to all cases of rape and, if the argument of the disproportionate nature of the sentence envisaged by Section 376 is to be taken as a defence by votaries of the impugned Exception, she submits that Section 375 would become vulnerable to being struck down in its entirety. She reasserts the essential position that a rapist is a rapist irrespective of the relationship with the victim. While recognising that sentencing for rape (whether within or outside of marriage) must be proportionate to the gravity of the offence, the perpetrator, harm caused to the victim and other facts and circumstances of the case, and that the high mandatory minimum sentence presently prescribed for the offence may not meet such proportionality concerns, Miss Nundy submits that this concern cannot be a ground for refusing to strike down the impugned Exception which, according to her, is ex facie unconstitutional. Once the impugned Exception is struck down, she submits that it would always be open to the Supreme Court of India to recommend to Parliament to reconsider the issue of sentencing for rape., Submissions of Mister Colin Gonsalves, learned Senior Counsel for Khushboo Saifi. Interestingly, several of the submissions of Mister Gonsalves mark a departure from the submissions advanced by Miss Nundy. Mister Colin Gonsalves placed extensive reliance on the position obtaining in foreign jurisdictions, particularly England and Wales, Canada, South Africa, Australia, the United States, Thailand, Nepal, France, Germany, Belgium, the Netherlands and Italy, and contended that the marital rape exception no longer remained in most of the developed, and indeed much of the developing world and that, therefore, it had outlived its welcome in India as well. He has also invited attention to the Justice Verma Committee and the contents of its report, which advocated eradication of the impugned Exception. He has further invited attention to the large number of cases of marital rape which, according to him, take place in the country, and how they escape detection and punishment owing to the existence of the impugned Exception. He has quoted, copiously, from Working Paper 116 of the UK Law Commission (1991), which dealt with rape within marriage., Mister Gonsalves submits that the unconstitutionality of the impugned Exception is ex facie apparent, for the reason that it exempts married men from the charge of rape of their wives where the husband insists on sex and engages in the act despite lack of consent from his wife; it arbitrarily distinguishes between married and unmarried couples; and there is no rational nexus between the object sought to be achieved and the provision, which creates a demarcation between married and unmarried men in so far as creating an exception to an offence as grave as rape is concerned., According to Mister Gonsalves, in adjudicating on the constitutionality of the impugned Exception, the Supreme Court of India should not be concerned with the exact meaning and amplitude of the concepts of consent and coercion. He has articulated this submission in his written note: Some of the issues raised during these proceedings will be, and can be, resolved only in the Trial Courts where facts specific contests will bring enriched meaning to critical legal issues particularly (1) the meaning of the word coercion and (2) the meaning of consent. This Court is not called upon after noticing the well accepted definitions of these two words, to thereafter proceed on the basis of various possible scenarios to connect this exercise with the adjudication of constitutionality. In what circumstances the conduct of the husband would amount to coercion and in what circumstances the conduct of the wife would amount to consent is not required to be adjudicated in these proceedings at all. In fact such an adjudication is impossible. It is only in the Trial Courts, in the way these two complex issues are debated on the basis of evidence of the parties, that a clear picture will emerge of how the law will recognise and deal with marital rape., Mister Gonsalves further submits that this Court cannot desist from dealing with the constitutionality of the impugned Exception on the ground that it would be almost impossible for the woman to prove marital rape, as it takes place in the confines of the household and in private. He has also sought to respond to the argument that for a married couple there exists a presumption in favour of regular sex and this is not so for rape cases outside marriage, which gives the husband a greater degree of laxity regarding consent when engaging in sex with his wife. In response, Mister Gonsalves cites State v. Pankaj Chaudhary, which holds that, even if it were to be assumed that the prosecutrix was of easy virtue, she has a right to refuse to submit herself to sexual intercourse with anyone., The manner in which the Supreme Court of India should proceed with examining the issue of constitutionality of the impugned Exception is, according to Mister Gonsalves, as follows: The High Court is only the institution of first instance. It cannot solve all the problems in one go. It takes the first step towards addressing the historic and extreme injustice that has been done to married women for centuries by doing away with the hateful Exception granting all husbands immunity in respect of what has been characterised as the most heinous crime. This is all that the High Court is called upon to do. After this is done, Parliament will be called upon to apply its collective mind as to how, if at all, the generic definition of coercion and the generic definition of consent is to be elaborated by making law. It may also, regrettably, be called upon to decide whether a lesser punishment ought to be prescribed in the Indian Penal Code, or whether the crime of marital rape ought to be compound double and capable of being settled between the couple. No part of this exercise is to be done in these proceedings. In what circumstances the husband’s conduct would amount to coercion, and the wife’s conduct amounts to consent has been discussed during these proceedings at length. They have enriched the discussion but they are, nevertheless, being made in the wrong institution. It is not within the adjudicating powers, rather the adjudicating capacity of the Writ Court, to conjure up myriad circumstances of coercion and consent and bring such determination within the ambit of a constitutional challenge to a specific provision of the Indian Penal Code. Therefore, such submissions in proceedings must happen later, after the Exception is declared unconstitutional, and in a different forum., Apropos the applicability of other provisions of the Indian Penal Code and other penal statutes to sex by the husband with his wife against her consent or willingness, Mister Gonsalves submits that it is not permissible to contend that, in marital rape cases, other provisions of the Indian Penal Code should be applied and not Section 375. Punishment in criminal law, he submits, is not limited to the sentence alone, but includes the stigmatising of the accused particularly when grave social crimes are committed so that, as in this case, the accused will be known and recognised as a rapist., Possibility of misuse cannot, according to Mister Gonsalves, restrain the Court from declaring the impugned Exception as unconstitutional, for which purpose he cites paragraph 19 of the report in Sushil Kumar Sharma v. Union of India. Adverting next to the decision in Independent Thought, Mister Gonsalves submits that the disclaimer contained in the said decision, clarifying that the Court had not made any observation with regard to marital rape of a woman who was of eighteen years of age or above, even collaterally, cannot be regarded as binding on any authority which seeks to rely on the said decision. In this context, he has submitted thus: In the first instance it is not part of the adjudication process at the delivery of the judgment for any court after concluding the adjudication and writing the judgment to say that the judgment would not operate as a precedent for whatever reason. The reasoning in the judgment and the operative part of the order stand together as a whole and once delivered no judge may say that the others may not follow it for whatever reason. Once the judgment is delivered even with this caveat it belongs to the world and cannot bind the hands of judges, lawyers, members of the public as to its use. As to whether the judgment is dependent on the facts and circumstances of the case is for subsequent judges and others to determine; they cannot be told in advance that the judgment cannot be used in deciding other cases. Such observations are therefore not binding on any court or even courts subordinate to the Supreme Court of India may not follow such observations because they are not a legitimate part of any judgment and outside the sphere of adjudication. Mister Gonsalves cites, in support of these submissions, the judgment of the Supreme Court of India in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana and the decision of the High Court of Bombay in D. Navinchandra & Co. v. Union of India., Mister Gonsalves submits that there is no such thing as expectation of sex or the right to have sex, absent consent of the other party. The resurrection of such an expectation, he submits, would amount to resurrect the ghost of Lord Hale. Marriage, in his submission, merely makes socially acceptable sex between adults. He joins his colleagues in discrediting the contention that, by striking down the impugned Exception, the Court would be creating an offence. He submits that the offence of rape is already in place in Section 375 of the Indian Penal Code. Striking down the exception merely removes a legislative block which prevents husbands from being prosecuted even when the crime is committed. All that the Court is being called upon to do is to eliminate that block by declaring that exemption to be unconstitutional under Article 14 and Article 21 of the Constitution of India. He has endeavoured to articulate the contention in another way by seeking to submit that, with the coming into force of the Constitution of India, that legislative obstruction evaporates on its own because drafting which gives the husband immunity from the heinous crime of rape only on the basis of a marriage certificate is immediately violative of Articles 14 and 21 and is manifestly arbitrary. The impugned Exception, therefore, in his submission, dies with the coming into force of the Constitution, and all that this Court is required to do in the present case is to make a declaration for doing away even with the formal existence of the Exception. In his submission, this horrific exemption is already dead in the eyes of the Constitution, yet continues to torment married women. The crime of rape, which already exists, was kept on hold by an awful declaration of common law made centuries ago. Mister Gonsalves would contend that this Court is required to release the crime from the hold of that awful declaration of common law. By doing so, he submits that what comes into force is the right to punish, not a new crime. There is, therefore, no new offence only a new and delightful right to prosecute or to correct the injustices of the past., Submissions of Mister Rajshekhar Rao, learned amicus curiae. Mister Rajshekhar Rao commenced by highlighting the fundamentally inhuman nature of the act of rape and the indelible mark that the act imprints, not only on the physical form but also on the psyche of the victim. Rape, he submits, violates a woman’s right to equality, dignity and bodily integrity, personal and sexual autonomy, bodily and decisional privacy and reproductive choices. Inasmuch as the impugned Exception decriminalises non‑consensual sexual intercourse when perpetrated by a husband upon his wife, he submits that it is ex facie unconstitutional., Mister Rao reiterates the aphorism, emphasised many times over by Miss Nundy, that a rape is a rape and a rapist remains a rapist. The impugned Exception, he submits, is particularly egregious as it denies the wife the ability to prosecute her husband for the act of rape, whereas if the same act were perpetrated by any other male, she would be entitled to do so. Such entitlement is available to all other women, including women perceived to be of easy virtue, and with whom sexual intercourse is, arguably, an expectation, such as a sex worker. A sex worker, too, is entitled to decline consent for sex and, if sex is forced on her without her consent, to prosecute for rape. Denying such a right to a wife amounts to rendering the issue of her consent to sex immaterial inasmuch as she cannot prosecute a husband for having non‑consensual sexual intercourse with her, i.e., for the act of rape. He submits that there can be no greater indignity that the law can heap upon a woman than to deny her the right to prosecute for the violation of her bodily integrity, privacy and dignity at the hands of her husband, who she would legitimately expect to receive love and affection from and who would be expected to safeguard her interest., Mister Rao echoes the primary contention of all learned counsel who have argued against the impugned Exception that the absence of consent is the foundation of the offence of rape under Section 375 of the Indian Penal Code. The impugned Exception, he submits, is based on the archaic belief that the very act of marriage implies consent by the wife for sexual intercourse with the husband during the entire subsistence of the marital bond, i.e., the Hale dictum, or at least till the parties continue to cohabit. This notion, he submits, is outdated and obsolete, insofar as it understands the concept of marriage and the role of a wife in it. Any such presumption of consent, submits Mister Rao, is inconsistent with applicable law, which guarantees equal protection of the law to married women, for which purpose he cites paragraphs 73 to 75, 84 and 88 of Independent Thought and paragraphs 62 to 63, 68 to 71 and 82 of Shayara Bano v. Union of India., Classification based on marital status, submits Mister Rao, creates an anomalous situation, giving married women lesser protection against non‑consensual sexual intercourse by their own husbands as against strangers. This also results in lesser protection for them than is available to persons who are merely cohabiting or live‑in partners. This discrepancy is particularly stark when one considers that Sections 376(2)(f) and 376C of the Indian Penal Code recognise that the act, if perpetrated by a person in a position of trust, or in a fiduciary capacity, is more egregious than if done by a stranger., Preservation of the institution of marriage, submits Mister Rao, cannot justify retention of the impugned Exception. He points out that a decree for restitution of conjugal rights cannot compel the parties to have sexual intercourse, but may be enforced only by attachment of property, under Order XXI Rule 32 of the Code of Civil Procedure, 1908. Non‑consensual marital intercourse reflects what a marriage ought not to be. While a marriage entails reasonable marital privileges for both spouses, these reasonable expectations or privileges cannot be equated with willingness or consent to sex by default in all situations. Mister Rao advances, in this context, a somewhat radical submission that marriage is no longer as sacred or sacrosanct as it was traditionally considered to be and legislative provisions for divorce and judicial separation support this conclusion. Procreation, he submits, is not the only purpose of marital sexual intercourse, which is why a marriage becomes voidable only in the event of impotence rather than sterility. The wife also has an expectation of a healthy sexual relationship from her spouse. Implicit in this is the presumption of the consensual nature of the relationship. He submits that the institution of marriage cannot be regarded as imperilled, even were the impugned Exception to be struck down, as the husband, in the event of non‑consensual sexual intercourse with his wife, is liable to be prosecuted for several other offences in relation to the said act, for which purpose he cites paragraph 92 of the report in Independent Thought. Referring to Joseph Shine and Independent Thought, Mister Rao submits that courts have struck down, and read down, provisions pertaining to marriage, despite fears of breakdown of the marital institution in such an event., Equally misconceived, in Mister Rao’s submission, are concerns that, by striking down the impugned Exception, the Court would be permitting interference in the private marital sphere, as such perceived interference is already permissible for other offences applicable to such a situation, such as Sections 354A to 354D, 319 and 339 of the Indian Penal Code. He also submits that the Court cannot hold its hands back from striking down the impugned Exception on the consideration of a possibility of a lack of evidence in such cases, as the same evidentiary yardstick that applies to these provisions would apply to non‑consensual marital intercourse., The legislative unwillingness to recognise the act of rape when perpetrated by a husband upon his wife is, in Mister Rao’s submission, an affront to the dignity of the wife, which violates her fundamental right to life and liberty. Constitutional courts are enjoined to strike down any provision of the law which, in their perception, violates fundamental rights, and this is rendered an imperative by Article 13 read with Article 226 of the Constitution of India. He also cites, for reference, Article 13 of the Constitution, which declares that laws inconsistent with or in derogation of the fundamental rights shall be void, and that the State shall not make any law which takes away or abridges the rights conferred by this part., In deciding whether a provision of law is, or is not, unconstitutional, Mister Rao submits that the Court is required to examine the effect of the legislation and whether it creates an artificial distinction between different classes of persons, citing paragraphs 46 to 47 of Anuj Garg v. Hotel Association of India. He also submits that striking down the impugned Exception would not result in the creation of a new offence, but would merely remove a legal fiction which has resulted in an exemption that is discriminatory and unconstitutional. The act which would become punishable as rape is already punishable as other offences under the Indian Penal Code. He therefore submits that no new behaviour is being criminalised, for which purpose he cites paragraphs 190 to 194 of Independent Thought. As the decision to strike down the provision, if taken, would operate prospectively, Article 20(1) of the Constitution would not be violated. He cites Hiral P. Harsora for the enforcement of any of the rights conferred by Part III and for any other purpose. He also refers to the case of Mithu v. State of Punjab as an instance in which the Court, by striking down a provision, removed the exemption granted to a class and the differences in sentences for different classes., Mister Rao has referred us to decisions rendered by courts abroad which have removed the marital exception to rape. He has provided a tabular chart of such decisions. While acknowledging that the applicable statutes in the United Kingdom and Nepal did not contain a provision akin to the impugned Exception, Mister Rao submits that the statutory position applicable in the United States, at the time of the decision in People v. Liberta, contained a specific exception from the offence of rape where the victim was one’s wife. The view in the said decisions, that the marital rape exception was repugnant and illogical, an abuse of human rights and simply unable to withstand even the slightest scrutiny, he submits, applies mutatis mutandis to the impugned Exception., Submissions of Miss Rebecca John, amicus curiae. Miss Rebecca John submitted, with even greater fervour than Mister Rao, that the impugned Exception could not sustain for an instant. Miss John acknowledged, at the outset, that the foundational basis for the impugned Exception is marriage. She points out that Note B in the Notes on Clauses in the chapter of General Exceptions in the draft Indian Penal Code, per Lord Macaulay, clarified that the impugned Exception was to protect the conjugal rights of the husband. Even prior to this statement, Miss John submits that the common law position excluded a wife’s consent from the purview of the penal provision and its origin is traceable to the common law doctrines of coverture and implied consent, under which the legal rights of a woman were subsumed by her husband after marriage. These doctrines declared that, by entering into marriage, a wife had granted irrevocable sexual consent to her husband., The impugned Exception, submits Miss John, necessarily results in a complete and unequivocal disregard of the wife’s right to consent to sex within a marriage, and its consequence is therefore that a provision which otherwise criminalises sex without the consent of the woman exempts a husband from being prosecuted simply because he is married to her. She relies on the judgment of the Supreme Court of India in Justice K.S. Puttaswamy v. Union of India in which Justice Chandrachud holds that the validity of a law which infringes fundamental rights has to be tested not with reference to the object of the statute but on the basis of its effect on the guarantees of freedom. The impugned Exception, submits Miss John, leaves married women remediless for an offence of rape committed by their husband., Miss John seeks to analogise the present case with Joseph Shine. In that case, she points out, the Supreme Court struck down Section 497 of the Indian Penal Code and decriminalised adultery. The decision holds that the proposition that a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity. As such, she submits that the impugned Exception represents an antiquated notion of marriage between unequals, contrary to the modern concept of marriage, as elucidated in Joseph Shine., Supporting her colleagues, Miss John also submits that the removal of the impugned Exception would not lead to the creation of a new offence. She relies, for the purpose, on paragraphs 190 and 194 of the report in Independent Thought, which, in turn, relied on the judgment of the House of Lords in R v. R, in which it was held that the striking down of the marital rape exception is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive., Miss John acknowledges that, for atrocities or acts committed by a husband on his wife, the law provides remedies under Sections 304B, 306, 377 and 498A of the Indian Penal Code, Section 348 of the Dowry Prohibition Act, 1961, and Section 304B (Dowry death) and Section 306 (Abetment of suicide).
id_412	16	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., Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation. Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section., If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more, provided that the Supreme Court of India may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years., Presumptions under Sections 113A and 113B of the Indian Evidence Act apply, and Section 24 of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, as well as civil remedies under the Protection of Women from Domestic Violence Act, 2005, are sought to submit that these remedies do not address the issue of rape by a husband on his wife., She points out that Section 498A of the Indian Penal Code cannot be used to prosecute forced, non‑consensual sex as cruelty. Besides, Section 498A(a) defines cruelty as wilful conduct likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, and does not pertain to sexual violence by the husband upon his wife. The definition of cruelty in Section 498A(b) relates to a demand for dowry., Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Supreme Court of India may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband., Explanation. For the purposes of this section, cruelty shall have the same meaning as in Section 498A of the Indian Penal Code (45 of 1860)., Presumption as to dowry death. When the question is whether a person has committed the dowry death of a woman and it is shown that soon before his death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Supreme Court of India shall presume that such person had caused the dowry death. Explanation. For the purposes of this section, dowry death shall have the same meaning as in Section 304B of the Indian Penal Code (45 of 1860)., Special statutes created for the protection of married women against violence deal with specific crimes, particular thereto. The crime of rape, she submits, is outside the purview of these statutes., Relying on Independent Thought 1 and Vishaka v. State of Rajasthan, Ms John also emphasises India's obligations under the international conventions to which it is a party, specifically the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which, according to Ms John, requires Exception 2 to Section 375 to be struck down. She has referred, in this context, to paras 22 and 23 of the concluding comments on the CEDAW in its 37th Session, 2007; para 11(c) of the concluding observations in the 4th and 5th periodic reports of India in the 58th session of the CEDAW in 2014; paras 22, 36, 69 and 70 to 72 of the United Nations Security Council resolution on Violence Against Women, Dubravka Šimonović in its 47th session, 2021; para 17 of Article 2; paras 49 to 50 and 78 of the 26th Session of the United Nations Security Council resolution on Violence Against Women in 2014; and the Report of the Special Rapporteur on violence against women, its causes and consequences in the United Nations Human Rights Council VAW – 52nd Session of the Commission on Human Rights in 1996., In comparison the nexus of Section 375 is to criminalise rape in brief, non‑consensual or forced sexual penetration of a woman. For the purpose of argument, even assuming that there may be an intelligible differentia that the law recognises between the class of married and unmarried persons, there must be a rational nexus to that differentia. In the case of the crime of rape, can there be any difference in the consent that an unmarried or a married woman gives to the man committing rape upon her?, Emphasising the fact that, in other common law jurisdictions, the marital rape exception stands removed from the law, Ms John submits that the continuance of the exception in India is an anachronism. She seeks to deconstruct Section 375 by submitting that, by including the impugned Exception therein, the Indian Penal Code creates a fiction that the acts and circumstances described in Section 375 do not amount to rape where the parties are married. She also submits that Section 375 is required to be read along with clauses (n) 20 and (wa) 52 of Section 2 of the Code of Criminal Procedure and Sections 3353 and 4454 of the Indian Penal Code., Ms John reiterates that the woman's consent is central to making the act an offence. Consent, she submits, underlies the immunity contained in Exception 1 in Section 375. Exception 2, which is also couched in absolute terms, states that sexual intercourse or sexual acts by a man with his own wife is not rape. As such, the impugned Exception carves out an immunity which disregards the ingredients of the offence, which includes the definition of victim as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged, and the expression victim includes his or her guardian or legal heir. The word act denotes as well a series of acts as a single act; the word omission denotes as well a series of omissions as a single omission. The word injury denotes any harm whatever illegally caused to any person, in body, mind, reputation or property., Within its fold, any of the acts contemplated by clauses (a) to (d) of Section 375, if perpetrated without the consent of the woman, constitute the offence., Addressing the aspect of conjugal rights, Ms John submits that, undisputedly, a marriage comes with reciprocal obligations and expectations of the spouses, including of sex. Marriage must be based upon mutual trust and respect. Exception 2 violates marital trust and the sexual decisional autonomy of the wife based on Macaulay's object of protecting a husband's conjugal rights alone. A wife's right to bodily autonomy will stand violated if the expectation (not a right) of sex by her husband translates into a physical act of forcible sex. The Exception, in effect, accords immunity to a husband disregarding his wife's non‑consent, which cannot be the object of any provision, and therefore, it fails the test of constitutionality., In order for a statutory provision to accord with Article 14 of the Constitution, Ms John submits that the classification created by the provision must be founded on an intelligible differentia, and the intelligible differentia must have a rational nexus to the object sought to be achieved by the legislation. If the object of the classification is illogical, unfair or unjust, the classification will be unreasonable. She has placed reliance on Navtej Johar and State of Tamil Nadu v. National South Indian River Interlinking Agriculturist Association to submit that courts should be aware of the inadequacies of the above two‑pronged test, and over‑emphasis on the objective of law instead of its effect, particularly when the objective was ostensible and did not further the true meaning of the equality clause as under the Constitution. The object of Section 375, she submits, is criminalisation of non‑consensual or forced sex upon a woman. The marital status of the woman is not an intelligible differentia, therefore, to create a distinction for whether she can be subjected to sex against her will or consent. From this, she echoes her colleagues in asserting that a rape is a rape regardless of the relationship between parties., Adverting to the existence of other provisions, under which sexual violence by a husband on his wife may be punished, she submits that they are insufficient to deal with rape as defined in Section 375., Finally, Ms John joins her colleagues in submitting that, if the impugned Exception were to be struck down, a new offence would not be created. She submits that the impugned Exception already stands diluted with the judgement in Independent Thought 1, to para 190 of which she draws reference to contend that effacing of the impugned Exception from the statute does not create a new offence but rather merely removes the immunity historically provided to a particular class of persons. She also relies, for this purpose, on the observations contained in the judgement of the House of Lords in R v R., Submissions of learned counsel who supported the impugned Exception: Mr J Sai Deepak, counsel for the Men's Welfare Trust., Mr J Sai Deepak, who argued on behalf of the Men's Welfare Trust, commenced his submissions by clarifying that his client was not opposed to criminalisation of spousal sexual offences, including non‑consensual sexual relationship. However, he submits, there already exists a legal/penal framework to deal with such offences. He submits that the issue at hand is not merely about consent, but also about context, which learned counsel for the petitioners refuse to acknowledge. It would be erroneous, in Mr Sai Deepak's submission, to reduce the ambit of the discussion merely to the aspect of consent., Mr Sai Deepak seriously questions the jurisdiction and authority of the Supreme Court of India to grant the reliefs sought by the petitioners. Grant of such reliefs, he submits, would invariably result in creation of a new class/species of offence, which is outside the boundaries of Article 226 jurisdiction. It would also infract the doctrine of separation of powers, and that too, in the matter of criminalisation. Expanding on the aspect of separation of powers, Mr Sai Deepak submits that the doctrine is intended to preserve the right of the people to participate in law and policy making. Grant of the reliefs sought in the petitions, he submits, would keep the people outside the pale of participation in law and policy making on such a sensitive social issue, which would invariably truncate fundamental rights and empower an unelected body, i.e., the Supreme Court of India, to undertake an exercise beyond its constitutional mandate and expertise. Creation of an offence, he points out, requires considerations of social impact, and the creation of an entire ecosystem, involving a definition, process, safeguards, evidentiary standards and the forum which is to deal with the offence thus created, none of which are open to legislation by a court of law. A court of law, he submits, is ill‑equipped to examine such issues, as it is not designed for enabling participation by multiple stakeholders, which is fundamental to a decision to regard an act as an offence. Besides, he submits, the consequences of grant of the reliefs sought in the petition are bound to be social and cultural, which is yet another reason as to why a judicial forum cannot undertake a policy decision of the kind that the petitioners seek. Designating an act as an offence, punishable under the criminal law, he submits, requires wide‑ranging consultation with members of the public as well as subject matter experts, with an analysis of concrete data based on ground realities. It cannot be done in a peremptory manner, merely based on anecdotal evidence. A Constitutional Court, he submits, cannot dictate either the course of public cogitation or legislative deliberation. In support of his contention that constitutional morality and institutional independence would stand undermined were the petitioners' prayers to be granted, Mr Sai Deepak relies on paras 40 to 41 of the report in Social Action Forum for Manav Adhikar v. Union of India, para 37 of the report in Indian Drugs & Pharmaceuticals Ltd v. Workmen, para 43 of Kalpana Mehta v. Union of India, para 5 of Suresh Seth v. Commissioner, Indore Municipal Corporation, para 23 to 26 of Census Commissioner v. R Krishnamurthy, para 3 of Anuja Kapur v. Union of India and para 5 of Madhu Kishwar v. State of Bihar. As against this, Mr Sai Deepak submits, with respect to the judgements cited by learned counsel for the petitioners, that (i) Devidas Ramachandra Tuljapurkar was a case in which the Hon'ble Supreme Court sought to interpret Section 292 of the Indian Penal Code, to assess if a prima facie case of obscenity was made out in the facts of that case and, in paras 141(d) to (f), the Hon'ble Supreme Court particularly noted that it was not creating a new offence, (ii) Hiral P. Harsora, too, involved purposive interpretation of the definition of respondent in Section 2(q) of the Protection of Women from Domestic Violence Act, to enlarge the scope of the words adult male as used in the said definition to include women and make it gender neutral, and did not involve any express exception, in the Protection of Women from Domestic Violence Act, providing immunity from prosecution for domestic violence and (iii) Balram Kumawat involved a question of interpretation of whether the expression ivory imported into India, as contained in the Wild Life (Protection) Act, 1972, would include mammoth ivory., Mr Sai Deepak disputes the petitioners' contention that the impugned Exception either envisages, or requires, a wife to submit to forced sex by her husband, or that it encourages a husband to impose himself on his wife. He also disputes the contention that there are no remedies, available in law, to address non‑consensual sex between spouses. In this regard, he invites attention to Sections 376B and 498A of the Indian Penal Code and Section 198B of the Code of Criminal Procedure, as well as the provisions of the Protection of Women from Domestic Violence Act. These provisions, inter alia, he submits, create a legislative framework within which a husband, who indulges in non‑consensual sex with his wife, could be criminally prosecuted. By including the impugned Exception and creating, side by side, a separate legal ecosystem to deal with spousal sexual violence, which indeed criminalises such an act, albeit without terming it rape within the meaning of Section 375 of the Indian Penal Code, he submits that the legislature has acted within its boundaries, and no judicial interference therewith would be justified. The distinction carved out by the legislature in labeling and treatment of spousal sexual violence, he submits, is grounded in respect for the complexity of the institution of marriage, and is both reasonable and based on intelligible differentia, which satisfy Articles 14, 15, 19 and 21 of the Constitution. Sections 376B of the Indian Penal Code read with Section 198B of the Code of Criminal Procedure, and Section 498A of the Indian Penal Code, he submits, are sufficient proof of intelligible differentia, as is also the impugned Exception, which provides for a legitimate and different treatment of offences committed within the bounds of a marriage or in the event of a legal or de facto separation., Mr Sai Deepak further submits that the impugned Exception cannot be struck down on the ground that the existing remedies against spousal sexual violence are inadequate. Inadequacy, he submits, does not constitute unconstitutionality and, even if it exists, is a matter to be remedied by the legislature, and is outside the province of judicial intervention. He points out that the Supreme Court of India is exercising jurisdiction under Article 226, and not under Article 141 of the Constitution., Mr Sai Deepak also refutes the contention of the petitioners that the impugned Exception is in the nature of a colonial legislation. He submits that, though the impugned Exception was, no doubt, engrafted in the pre‑Constitutional era, it has been subjected to several parliamentary cogitations and discussions after the Constitution was in place. He also relies on Article 13(1) of the Constitution, which protects pre‑Constitutional laws so long as they pass muster on the anvil of the Constitution. This, he submits, effectively preserves the presumption of constitutionality of laws even if they were enacted prior to coming into force of the Constitution, unless rebutted by a successful challenger. In such circumstances, he submits that a court cannot interfere with legislative wisdom merely because it has a different, or even a diametrically divergent, point of view, least of all when, by doing so, a new offence, or a new class of offences, is being created. Of all the prayers in all the petitions listed before the Supreme Court of India, Mr Sai Deepak submits that the only prayer which may, constitutionally, be made, is prayer C in WP (C) 6217/2016, which seeks a direction to the Union of India to consider the issue raised in the petition, regarding the need to continue, on the statute book, the impugned Exception to Section 375 of the Indian Penal Code. None of the remaining prayers, in any of the petitions, can be granted by the Supreme Court of India, if it is to remain within its constitutional boundaries., Were the Supreme Court of India to grant the prayers of the petitioners, submits Mr Sai Deepak, the direct and intended consequence would be enlargement of the scope of the fence of rape and to recognise the commission of rape in the context of a marriage. This, he submits, is beyond the powers and authority of the Supreme Court of India under Article 226. Contradistinguishing the present case from Navtej Johar and Shreya Singhal v. Union of India, Mr Sai Deepak submits that the present case does not relate to a constitutional challenge to a criminalising provision. Any comparison of the present case with these decisions would, therefore, in his submission, be misguided. Equally misguided, according to Mr Sai Deepak, is the reliance placed by the petitioners on Shayara Bano, in which, even while striking down the practice of talaq‑e‑biddat as unconstitutional under Section 264 of the Muslim Personal Law (Shariat) Application Act, 1937, the decision of whether to criminalise, or otherwise, the said practice was relegated to the legislature, specifically recognising that criminalisation, or creation of an offence, was the sole and executive preserve of the legislature. Despite the judgement of the Supreme Court, therefore, he submits that the practice of talaq‑e‑biddat would not be offensive in law, unless the legislature created an offence in that regard., Independent Thought 1, in Mr Sai Deepak's submission, involved a very limited issue, as was set out in the opening paragraph 642. Application of Personal Law to Muslims. Notwithstanding any customs or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)., Of the judgement, i.e., whether sexual intercourse between a man and his wife who is a girl between 15 and 18 years of age is rape? The reliance, by the petitioners, on the said decision, as an authority on the power of the judiciary to create a new species of offence was, therefore, in his submission, completely misplaced. Mr Sai Deepak invites special attention to para 190 of the decision, which clearly holds that a court cannot create an offence. The issue before the Supreme Court of India in Independent Thought 1, he points out, was whether the specification, in the impugned Exception in Section 375, making the Exception applicable where the wife was below the age of 15, was sustainable, as it was clearly in conflict with the provisions of the Protection of Children from Sexual Offences Act and the Prevention of Child Marriages Act, 2006 (the PCMA). To bring the impugned Exception in harmony with these statutes, and Section 198(6) of the Code of Criminal Procedure, the Supreme Court read down the impugned Exception as being applicable where the wife was between 15 and 18 years of age. As the Supreme Court held, thereby, it was merely bringing in consistency between the impugned Exception and the Protection of Children from Sexual Offences Act and the PCMA. Mr Sai Deepak also criticised the attempt, of Ms Nundy, to treat Independent Thought 1 as an authority on the aspect of the legality of the impugned Exception in toto by applying the inversion test. In his submission, the inversion test can have no application at all in the present case, as the Supreme Court clearly held that the issue under consideration, before it, in Independent Thought 1, was the applicability of the impugned Exception to girls between the age of 15 and 18, and also specifically excepted the applicability of the decision to marriage between adults. Independent Thought 1, therefore, if anything, contends Mr Sai Deepak, would support the upholding of the impugned Exception, rather than its evisceration., Mr Sai Deepak also disputes the petitioners' contention that the impugned Exception is a colonial provision which lacks the presumption of constitutionality. In his submission, Article 13(1) bridges the gap between pre‑Constitutional laws and the Constitution, by clearly ordaining that pre‑Constitutional laws would be void to the extent they are inconsistent with the provisions of Part III of the Constitution. Such inconsistency, he submits, cannot be presumed at the outset, but would have to be demonstrated by the person seeking to contend that the law is unconstitutional. Mr Sai Deepak also submits that the statement of the law, in Navtej Johar, that presumption of constitutionality does not attach to pre‑Constitutional laws, is per incuriam, as the earlier decisions in Chiranjitlal Chowdhuri v. Union of India, State of Bombay v. F.N. Balsara (by a Constitution Bench) and Reynold Raiamani v. Union of India hold otherwise. In his submission, given this difference of views, a case for referring to the Supreme Court, the issue of whether the observation of the Supreme Court in Navtej Johar, that pre‑Constitutional laws lack presumption of constitutionality, is correct, or not, exists., In any event, submits Mr Sai Deepak, even after the enactment of the Indian Constitution, the legislature has not only retained the impugned Exception, but has also cited the institution of marriage and the existence of other criminal remedies as a reason for retaining it. The impugned Exception has received legislative attention several times after the coming into force of the Constitution, thereby entitling it to the same degree of presumptive constitutionality as a post‑Constitutional enactment. Apropos the instances when the validity of the impugned Exception has come up for consideration and been deliberated upon, Mr Sai Deepak cites para 5.9.1 of the 167th Parliamentary Standing Committee on the Criminal Law (Amendment) Bill, 2012, para 1.64 of the 19th Report of the Lok Sabha's Committee on Empowerment of Women and para 3.1.2.1 of the 172nd Law Commission Report (2000). It would, therefore, in his submission, be incorrect to contend that the impugned Exception is still in the nature of a colonial provision which retains the baggage of the English doctrine of coverture. Not a single document, he submits, has been placed on record by the petitioners, on the basis of which it could be said that the doctrine of coverture has operated as the justification for retaining the impugned Exception on the statute book., Mr Sai Deepak further submits that, if the impugned Exception were to be struck down, it would render otiose the fourthly clause in Section 375, which is predicated on natural conjugal relations between spouses. Husbands, he submits, have not been given a free pass with respect to unnatural offences under Section 377 or sexual cruelty under Section 498A, which encompasses non‑consensual sex and spousal sexual violence. It is, therefore, not correct to contend that the legal framework as it stands today does not recognise the need for consent in spousal sex. While recognising this necessity, Mr Sai Deepak points out that the legislature has also recognised the need for differential treatment owing to the nature of the relationship between the parties and the difficulty in establishing lack of consent where there is no legal or effective separation within the meaning of Section 88. Rationalising the impugned provisions, Mr Sai Deepak submits that the acts envisaged by clauses (a) to (d) of Section 375 become illegal, and amount to rape only in the event of satisfaction of any one of the seven circumstances enumerated in the provision and in the absence of consent between a separated couple in the case of Section 376B. Consent, therefore, he submits, is not the sole deciding factor, and is to be examined in the backdrop of the circumstances in which it is refused.
id_412	17	It is practically impossible to establish the absence of consent if the issue arises within the peripheries of a marital relationship, given the nature of intimacy associated with the institution of marriage and the absence of eyewitness accounts. It is for this reason, submits Mr. Sai Deepak, that absence of consensual conjugal relations is easier to presume in the event of legal or de facto separation under Section 376B. This is also the reason, according to him, that a preliminary enquiry of sorts under Section 198B of the Criminal Procedure Code is undertaken, to assess whether the couple is living apart although living under the same roof. The submission that all that matters is consent, and that marriage changes nothing is, therefore, according to him, legally and factually baseless. Mr. Sai Deepak points out that the factum of marriage results in serious obligations on the part of the partners, from conjugal expectations and rights to financial obligations, mental health obligations and a duty towards progeny. In such circumstances, he submits that any contention that the institution of marriage cannot justify the impugned Exception is to deny the obvious., A victim of spousal sexual violence, submits Mr. Sai Deepak, can invoke the Domestic Violence Act, Section 3 of which includes any conduct of a sexual nature which abuses, humiliates, degrades or otherwise violates the dignity of the wife within the ambit of the expression sexual abuse. This expression would therefore also embrace non‑consensual sex. Mr. Sai Deepak also submits that the contention of learned counsel for the petitioners that the Domestic Violence Act provides only for civil remedies is misplaced in view of Section 19(2) thereof. In fact, he points out, as a matter of practice, directions for registration of FIR under Sections 498A, 376B and 377 of the Indian Penal Code are regularly passed in exercise of the power conferred by the said provision., Inasmuch as the impugned Exception is based on treating spousal sexual violence as a species sui generis, and distinct from rape within the meaning of Section 375, Mr. Sai Deepak submits that the petitioners cannot seek to contend that striking down of the impugned Exception would merely result in enlarging the scope of offenders without creating a new offence or a species thereof. The difference between the impugned Exception and the rest of Section 375, he submits, is in the offence, and not in the offender. In the light of the legislative reticence to employ the expression rape in the context of spousal relations, Mr. Sai Deepak contends that the petitioners' argument that the prayers in the petition merely seek enlargement of the class of offenders is baseless. The judgments cited by learned counsel for the petitioners, to the effect that a Court can enlarge the class of offenders, are therefore inapplicable to the present case. In fact, in his submission, the reluctance of the legislature to use the expression rape in the context of a spousal relationship is not merely intended to protect the spouse, but also their families and the progeny., Protection of the marital institution, submits Mr. Sai Deepak, is a legitimate State interest in our society, and the mores and values of other societies or countries cannot be foisted on us. In any event, the current state of public morality on such issues, he submits, can only be determined by the legislature and not by the Supreme Court of India. Every policy disagreement cannot elevate itself to the level of unconstitutionality, which is a high threshold. Courts, he submits, cannot be used as instrumentalities to upset policy decisions merely because a cross‑section of the society disagrees with them. He cites, in this context, paras 42 to 91 of Government of Andhra Pradesh v. P. Laxmi Devi, paragraph 15 of Mohd Hanif Qureshi v. State of Bihar, paragraph 39 of Sunil Batra v. Delhi Administration, paragraph 150 of Joseph Shine, paragraph 205 of Bombay Dyeing & Manufacturing Co. v. Bombay Environmental Action Group and paragraphs 36 to 37 of Beeru v. State., Mr. Sai Deepak has, finally, distinguished the position as it obtains in India with that which obtains in overseas jurisdictions. In the Sexual Offences Act of 2003, in the United Kingdom, for example, he points out that Section 1 entitles the accused to defend himself on the ground that he was under the reasonable belief that sexual intercourse with the alleged victim was consensual. This, he submits, constituted an inbuilt safeguard to the accused. Further, Section 23 of the Sexual Offences Act exempted spouses and civil partners from the benefit of Sections 16 to 19, which dealt with abuse of a position of trust. The evidentiary standards and circumstances in which presumptions could be drawn are also exhaustively set out in the said Act, which also lays out the standard operating procedure for prosecution of such cases. Moreover, he submits, the Sexual Offences Act was a product of legislative, and not judicial, intervention, and was also gender neutral. The judgment of the European Court of Human Rights in C.R. v. the United Kingdom was rendered in the context of a separated couple, in which the estranged husband imposed himself on his former wife, a situation which, in India, would be covered by Section 376B. In Nepal, he submits that petitions similar to the present were dismissed; moreover, several procedural safeguards had been introduced by the law when spousal sexual violence became criminalised, including the necessity of initiating a legal proceeding within 35 days of commission of the offence. Further, in Nepal, too, the law was gender neutral. In the United States, he points out that different States have adopted different positions and, in each of the said States, the legislation was introduced by the legislature and not by the judiciary. None of these instances, therefore, he submits, addresses a situation such as the present in a gender neutral backdrop., Submissions of Mr. R. K. Kapoor, Counsel for HRIDEY. Mr. Kapoor, who appeared for one of the intervenors, draws attention, at the outset, to the deliberations regarding the impugned Exception and the need for its retention or obliteration, by the Department‑Related Parliamentary Standing Committee on Home Affairs in the Rajya Sabha on 1st March 2013, in which the Parliamentary Standing Committee considered, inter alia, the 172nd Report on Review of Rape Laws given by the Law Commission of India, the draft Criminal Law (Amendment) Bill, 2012 and the Verma Committee Report. After considering all these aspects and recommendations, Mr. Kapoor points out that the Parliamentary Standing Committee, nonetheless, recommended retention of the impugned Exception, as there was an apprehension that its evisceration could bring the family system under great stress and render vulnerable the institution of marriage, which could result in more injustice than justice. Mr. Kapoor submits that the correctness of this view is not amenable to judicial review, as it had been reached after wide‑ranging consultations with stakeholders, an exercise that the Supreme Court of India is ill‑equipped to undertake. Reliance has been placed, by Mr. Kapoor, in this context, on paragraph 409 of the report in Raja Ram Pal v. Honorable Speaker. He submits that Courts cannot go into the sufficiency of the object sought to be achieved, or the motive of the legislature in passing a statute or retaining a provision, so long as there was an object in existence., Mr. Kapoor also seeks to underscore the pernicious consequences that could result, were the impugned Exception to be struck down. He submits that cohabiting husbands would, in such a circumstance, be worse off than separated spouses under Section 376B, as they would be liable, in the case of conviction, to be imprisoned for ten years, extendable to life, whereas Section 376B envisages punishment of not less than two years, extendable to seven years. Further, the husband would be subjected to the presumptive rigour of Section 114A of the Evidence Act, which does not apply to Section 376B. As a matter of fact, he submits, Section 376B is in the nature of an exception to Exception 2 to Section 375, setting out a separate and distinct class. This, too, in his submission, indicates that the legislature, in its wisdom, consciously retained the impugned Exception, despite making spousal sexual violence an offence in a case where the spouses were judicially separated. The legislative wisdom in such cases cannot be tested by the Supreme Court of India, he submits, relying on Sant Lal Bharti v. State of Punjab. Citing paragraph 345 of the report in T.M.A. Pai Foundation v. State of Karnataka, Mr. Kapoor submits that Article 14 forbids as much on meting out of equal treatment to unequals, as on discrimination between persons equally circumstanced. Absolute equality, he submits, relying on H.P. Gupta v. Union of India, is often unattainable and, so long as there is a perceptible classification which serves a particular purpose, judicial interference therewith is to be avoided., Mr. Kapoor points out that the issue under consideration is not whether spousal sexual violence is, or is not, to be punished as a criminal act, as Parliament has not condoned spousal sexual violence. It has merely stated that spousal sexual violence cannot be punished as rape under Section 376 of the Indian Penal Code. Other remedies have been provided to deal with such situations, including Section 3 of the Domestic Violence Act. The sufficiency of such other remedies, as a panacea to spousal sexual violence, he submits, is not judicially reviewable, and Exception 2 to Section 375 cannot be struck down on the ground that the remedies otherwise available to deal with cases of spousal sexual violence are insufficient. Denial of sex by the wife, in particular circumstances, he submits, also amounts to cruelty, which is a ground for divorce., In fine, Mr. Kapoor submits that the socio‑legal milieu in India is different, and distinct, from that which obtains in other jurisdictions, and there is no justification for requiring India to apply, to itself, decisions taken in other countries., Analysis Preliminary Observations. The discussions at the bar, in the present case, meandered into so many dusky pathways, into which the provision under challenge does not even pretend to venture, that, in the heat of the debate, the actual issue before the Supreme Court of India suffered obfuscation to a considerable degree. It is necessary, therefore, to know what we are dealing with., Sexual autonomy of women is non‑compromisable. Women are morally, legally, spiritually, and in every other way that matters, equal to men. The chance chromosomal circumstance that makes one a man and the other woman has, with the passage of time, ceased to have any significance worth the name. The Hale dictum of 15th‑century vintage, which might, when originally propounded, have reflected the mores and morals of the day, has, with the passage of time, become almost bewilderingly anachronistic. Our attention was drawn, by learned counsel, to the dictum, time and time again, to emphasise how outlandish it is. We are, in this regard, entirely in agreement. There is nothing whatsoever to indicate that the impugned Exception, either at the time of its original conception, or later when it came up for discussion on various occasions, was ever sought to be justified on the Hale dictum. To all intents and purposes, therefore, the Hale dictum is completely irrelevant to the issue at hand. Equally, there is nothing to indicate that the impugned Exception, or its continuance, is being sought to be justified on the basis of the doctrines of coverture or implied consent. Reference to these doctrines, which reflect the mores and morals of an age long past (and hopefully never to return), is therefore, in my view, unjustified., When one is dealing with a statutory provision of considerable vintage as in the present case, the compulsions that might originally have prompted its enactment, or even retention, might, with the passage of time and changing social and societal perceptions, change. The Supreme Court of India cannot, in my view, test the constitutionality of such provisions solely by regarding their object to be what the original framers of the provisions deemed it to be. Where, especially, the issue of continuance, on the statute book, of the provision, has come in for constitutional deliberation even post enactment of the Constitution, the Court has to be alive to the issue of whether the retention, or scrapping, of the provision would be advisable given the present socio‑legal realities and perceptions, and the justifiability for retention of the provision as the legislature now perceives, even if it be different from that which originally provoked its enactment. There may be provisions which were enacted for a specific object and purpose which have, with the march of time, become unjustifiable. If, nonetheless, the provisions merit retention for other reasons even in the present day and age, the Supreme Court of India cannot shut its eyes thereto, and merely examine the justification for the provision at the time of its enactment. Legislation is, after all, intended, at all times, to maintain social order. Even assuming Macaulay has, therefore, outlived his welcome, the impugned Exception may nonetheless remain constitutional and valid., Provisions that compromise a woman's right to freedom of sexual choice, either regarding the person with whom, or when, to have sex, or that prohibit a person from prosecuting an offender for having committed a statutory offence, or that violate any of the fundamental rights guaranteed by Part III of the Constitution of India, would necessarily be unconstitutional. The impugned Exception, however, does none of these things, though learned counsel for the petitioners, who seek to have the provision done away with, would emphatically urge to the contrary., Let us reproduce, here, once again, the impugned Exception, unshackled by Section 375: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. The words of the impugned Exception are plain, and admit no ambiguity whatsoever. The impugned Exception is worded in absolute terms though, statutorily, it finds place as an Exception to Section 375. It merely states that sexual intercourse, or sexual acts committed by a man with his wife are not rape. In effect, therefore, the impugned Exception keeps rape, and the taint of rape, away from the marital sphere. It immunises, in effect, the marital relationship from the slur of rape and the disgrace that comes with it, whatever be the nature of the sexual activity that takes place within the four corners of the relationship, and irrespective of whether the activity is consensual or non‑consensual., Is this unconstitutional? That is the issue before us. We are not, therefore, to judge on whether non‑consensual sex within marriage ought, or ought not, to be punished or, if it is, to opine on the appropriate punishment that should visit the perpetrator of the act. We have only to decide whether, in excepting, from the sphere of marriage, any allegation of rape, the legislature has acted unconstitutionally., At this juncture, it is necessary to underscore the most fundamental reason why, according to me, the petitioners' challenge is thoroughly misconceived. One may refer, in this context, to the following assertions in the written submissions tendered by the learned counsels for the petitioners: Submissions of Ms. Nundy: The Marital Rape Exception suffers from irrationality and manifest arbitrariness inasmuch as it provides immunity from prosecution for rape to a man for forcibly having sex with his wife, but not to a man forcibly having sex with a woman who is not his wife. Thus, it is submitted that the alleged object of the Marital Rape Exception, protection of conjugal rights and the institution of marriage, would nullify the object of the main provision of criminalising rape. As such, by virtue of the Marital Rape Exception, a husband can enforce his conjugal right (as he understands it) without going to a court of law. It encourages some husbands to do illegally that which cannot be done legally, on the pretext that they are exercising their conjugal right. A rapist remains a rapist and marriage with the victim does not convert him into a non‑rapist. Similarly, a rape is a rape whether it is described as such or is described as penetrative sexual assault or aggravated penetrative sexual assault. Prosecutions seeking conviction for rape in the guise of grievous hurt or cruelty are necessarily trying to fit a square peg in a round hole. Moreover, it is submitted that not calling a rape within marriage a rape also has far‑reaching consequences for the protection of its victims. Women raped by their husband do not get protections under law available to other rape victims., Submissions of Ms. Rebecca John: Given the intended consequence of Exception 2 to Section 375 in the Indian Penal Code where a married woman is left remediless for an offence of rape committed by her husband (while dealing with the availability of remedies under other statutes). Each of the special statutes created for the protection of married women against violence deal with specific crimes. The crime of rape is outside the purview of these statutes. In the case of the crime of rape, can there be any difference in the consent that an unmarried or a married woman gives to the man committing rape upon her? Other statutory provisions penalise crimes against married women, but are insufficient to deal with rape as defined in Section 375., Submissions of Mr. Rajshekhar Rao: In this backdrop, the Exception is particular egregious in as much as it deprives a wife the ability to prosecute her husband for the act of rape whereas if the same act were perpetrated by any other male, she would be entitled to do so. However, the effect of the Exception is to render the wife's consent immaterial in as much as she cannot prosecute her husband for having non‑consensual sexual intercourse with her, i.e., for the act of rape. The legislative unwillingness to recognise the act of rape when perpetrated by a husband upon his wife is, in itself, an affront to her dignity and, thereby, violates her fundamental right to life and liberty. All the above submissions, without exception, proceed on the premise that the husband, in having sex with his wife against her will or consent, commits rape. This contention, in turn, is predicated on the premise that every act of non‑consensual sex by a man with a woman is rape., This submission, as made, being bereft of any sound legal foundation whatsoever, consigns to immediate oblivion the impugned Exception. If this premise were to be accepted, i.e., that every act of non‑consensual sex by a man with a woman were, in law and without exception, regarded as rape, there would indeed be nothing left to examine. The petitioners appear, in so urging, to have failed to notice the distinction between the etymological and the legal. To urge that rape, per definition, is non‑consensual sex by a man with a woman, is just as simplistic as the contention that murder, per definition, is the taking of the life of one man by another. Just as every incident of taking of the life by one, of another, is not murder, every incident of non‑consensual sex of a man with a woman is not rape, however much learned counsel for the petitioners might want it to be. The foundation of the petitioners' case is, therefore, with all due respect to learned counsel, fundamentally flimsy. A castle cannot be built on reeds. As most of the submissions proceeded on the premise that any and every act of sex by a man with a woman against her will is necessarily rape, irrespective of the circumstances in which they were situated, and the relationship between them, and then condemn the impugned Exception as ordaining otherwise, the main issue of whether, because it excludes sex and sexual acts within marriage from the ambit of rape, the impugned Exception is unconstitutional, was lost in the clamour. The question of whether the unique demographics of marriage, which unquestionably extend to the sexual sphere as well, would, or would not, justify a differential treatment being extended to sexual acts within marriage, even if non‑consensual, was not, I am constrained to observe, debated with the seriousness it deserves., In this context, one may note a frank acknowledgement, in the written submissions dated 1st March 2022 by Ms. Nundy, otherwise one of the most vocal of the crusaders against the impugned Exception. She acknowledges, in so many words, that there can be no doubt that there is an intelligible differentia between married, separated and unmarried persons in all manners of laws that meets Article 14. Of course, seized as we are with a constitutional challenge, we cannot abdicate our responsibility to examine, ab initio, whether such an intelligible differentia, in fact, exists. Ms. Nundy, however, does not talk through her hat. She is intelligent and articulate, and clearly knows what she says. This frank and fair acknowledgement, by her, is therefore entitled to the weight it deserves. Of course, Ms. Nundy also submits, in the same breath, that this intelligible differentia cannot justify the impugned Exception; that, however, is a matter which I would discuss at greater length later in this judgment., The petitioners would seek to urge that the impugned Exception is unconstitutional, as it violates three of the most sacred fundamental rights guaranteed by the Constitution, enshrined in Articles 14, 19(1)(a) and 21. Needless to say, if the impugned Exception violates even one of these Articles, it would be unconstitutional., Re: Article 14. The petitioners are, undoubtedly, correct in urging that Article 14 of the Constitution would be violated by any provision which treats equals as unequals (or, I may add, unequals as equals), without any intelligible differentia having a rational nexus to the object sought to be achieved by the provision, or which is otherwise arbitrary., The impugned Exception treats non‑consensual sex between a husband and wife differently from non‑consensual sex between strangers. By virtue of the impugned Exception, while the latter is rape, the former is not. The distinction is, therefore, in the act, and is predicated on the relationship of the parties, between whom the act occurs. The act of sex, when it takes place between parties who are joined by marriage, declares the impugned Exception, is in no case rape. The statutory proscription is absolute., Applying the intelligible differentia test, the impugned Exception would, therefore, infract Article 14 only if the relationship of marriage, between the man and woman involved in the act, does not provide any intelligible differentia having a rational nexus to the object sought to be achieved by the impugned Exception., The answer to this question is, to an extent, to be found even in the following words, from the submissions of Ms. Nundy, to part of which I have already alluded: There can be no doubt that there is an intelligible differentia between married, separated and unmarried persons in all matters of law that meets Article 14. For example, conversations in marriage are protected by spousal privilege under Section 122 of the Evidence Act that no spouse can be compelled to give evidence against the other. The 69th Report of the Law Commission of India illustrates the rationale behind the Section: why the protection is not afforded on any theory of legal unity between the spouses, communications exchanged between them is based on a higher degree of confidence that goes with the marriage. Notably the report says: the marital privilege under the section does not apply in proceedings between the spouses or proceedings in which one married person is prosecuted for any crime committed against the other. While Ms. Nundy emphasises the fact that spousal privilege also stops where the spouses are at war, so to speak, what is significant is the raison d’être for the spousal privilege, being the higher degree of confidence that goes with a marriage. Marriage is, therefore, a relationship which brings, with it, a higher degree of confidence, between the partners, than that which exists between persons who are not married., Marriage, submits Ms. Nundy, is no ticket to sex. There is, she submits, no conjugal right to sex. Conjugal rights, in a marital relationship as understood in Indian law, extend only to cohabitation and consortium. Sex, in marriage is, therefore, merely a conjugal expectation., The focus slightly shifts. Does the higher degree of confidence, which distinguishes a marital relationship, coupled with the conjugal right to cohabitation and consortium (implying, at the least, a legally enforceable right to the company of each other), and what Ms. Nundy calls a conjugal expectation of sex, not constitute justifiable basis for the differential treatment extended by the legislature to sex and sexual acts within marriage, even if non‑consensual? Equally importantly, if the legislature has deemed it appropriate to treat these two situations differently, to what extent can a Court, exercising jurisdiction under Article 226 of the Constitution of India, judicially review the legitimacy of the legislative view? The institution of marriage, and the intelligible differentia that results., The demographics of a marriage are sui generis. The marriage may be between equals or unequals; it may be good or bad; it may be happy or sad; in every case, however, the factum of marriage, and the relationship between the parties that emerges consequent to the solemnisation of marriage, have their own distinct and identifiable indicia, not to be found in any other relationship between any two individuals. Myriad are the examples of male‑female relationship; they may be mother and son, sister and brother or, less platonically, girlfriend and boyfriend, or fiancé and fiancée. The relationship between husband and wife, which emerges as a result of the tying of the proverbial matrimonial knot is, however, distinct from all these relationships. To ignore, or even to seek to undermine, this, is to ignore plain reality. Equally plain, and real, is the fact that the primary distinction, which distinguishes the relationship of wife and husband, from all other relationships of woman and man, is the carrying, with the relationship, as one of its inexorable incidents, a legitimate expectation of sex., This aspect of the matter has been correctly emphasised by Mr. Sai Deepak, and I find myself entirely in agreement with him. The petitioners, in my view, have completely failed to note the uniqueness of marriage as an institution, its peculiar demographics and incidents, and the emotional, psychological, social and other complex equations that exist between a wife and a husband. As Ms. Nundy herself acknowledges, there are several legislations which recognise the inherent differences that arise in the context of a marital relationship. The submissions of the petitioners effectively consign all unique incidents of a marital relationship to obscurity. This is particularly evident from a somewhat surprising submission that Mr. Rao, learned amicus, sought to advance. Mr. Rao sought to visualise four situations; the first in which the man and woman are strangers, the second in which the man and woman are not yet married, but are five minutes away from marriage, the third in which the man and woman have been married five minutes earlier and the fourth in which the man and woman, though married, are separated. Mr. Rao sought to contend that the incongruity in the impugned Exception was manifest from the fact that while, in the first, the second and the fourth instance, non‑consensual sex by the man with the woman would amount to rape, it would not, in the third instance. What was rape ten minutes earlier, therefore, submits Mr. Rao, is not treated as rape ten minutes later, though the act is the same and there is want of consent on both occasions., The error in the submission is self‑evident.
id_412	18	The submission completely consigns, to the backdrop, the marriage that took place between the man and the woman during the momentous ten minutes between the second and the third instance. It is this fundamental error of perception that colours nearly all the submissions advanced by those who seek to oppose the continuance of the impugned exception on the statute book. Learned counsel for the petitioners, I am constrained to observe, have, in their submissions, regarded the existence of a marital relationship between the man and the woman as just another incident, which does not really amount to anything much. Miss Nundy has, in her submissions, in fact, referred to it as an imposed conception of marriage. She submits that an individual's right not to be raped cannot be held hostage to an imposed conception of marriage. In the first place, I do not understand how marriage can be treated as an imposed conception, or even a conception at all. It is a real and salutary institution, which, in a healthy instance, reflects complete emotional and psychological unity between the man and the woman., In a similar vein, Miss John has submitted that the consequence of the impugned exception is that a provision which otherwise criminalises sex without the consent of the woman exempts a husband from being prosecuted simply because he is married to her. Marriage is neither a playground nor a gladiatorial arena. It is the most pristine institution of mankind, on which the entire bedrock of society rests. The importance of marriage, and the relationship between a husband and wife joined in holy matrimony, cannot be undermined. Mr Rao's submission that marriage is no longer considered sacred in law is, to my mind, completely unacceptable., Between a husband and wife who spend their days and nights together, living in a house that, by the dint of their joint effort, they make a home, there exists a bond which defies and indeed transcends all known and identifiable parameters. In our country, marital vows are still regarded as inviolable, and marital fidelity is, fortunately, still the norm, profligacy being the exception, even though adultery is no longer a criminal offence. The sexual aspect is but one of the many facets of the relationship between husband and wife on which the bedrock of their marriage rests. Care, consideration, and an understanding of each other's likes and dislikes, hopes and aspirations are fundamental to the sustenance of a marriage that is to abide. There can be no comparison whatsoever between the relationship between a husband and a wife and any other relationship between man and woman. For this reason, there is an enforceable legal right, which even Miss Nundy acknowledges, for each party in a marriage to cohabit with, and for the consortium of, the other. Fostering the sustenance of a marriage is, in the law as it exists in this country, not just advisable; it is, even for the Supreme Court of India, a binding legal obligation. A petition for divorce, even by mutual consent, is not entitled to be granted straightaway, even if both parties appear to be irreconcilably at odds. The judge is bound, by his oath, to confer and interact with the warring couple and to make every possible effort to save, rather than sever, the marital bond., The Supreme Court, in Mr X v. Hospital Z, observed that marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It is a mental, psychological and physical union. When two souls thus unite, a new soul comes into existence, and life goes on and on on this planet. In somewhat greater detail, Chetan Dass v. Kamla Devi observes that matrimonial matters are matters of delicate human and emotional relationship. They demand mutual trust, regard, respect, love and affection with sufficient scope for reasonable adjustments with the spouse. The relationship has to conform to social norms as well. The matrimonial conduct is now governed by statutes framed, keeping in view such norms and the changed social order. It is sought to be controlled in the interest of individuals as well as in a broader perspective, for regulating matrimonial norms to create a well‑knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role in society in general. Therefore, it would not be appropriate to apply any submission of an irretrievably broken marriage as a straitjacket formula for grant of relief of divorce. This aspect must be considered in the background of the other facts and circumstances of the case., Indra Sarma v. V.K.V. Sarma examines the institution of marriage in considerable detail. Marriage is often described as one of the basic civil rights of man or woman, which is voluntarily undertaken by the parties in public in a formal way, and once concluded, recognises the parties as husband and wife. Three elements of common law marriage are: (1) agreement to be married, (2) living together as husband and wife, and (3) holding out to the public that they are married. Sharing a common household and the duty to live together form part of the consortium omnis vitae which obliges spouses to live together, afford each other reasonable marital privileges and rights and be honest and faithful to each other. One of the most important invariable consequences of marriage is the reciprocal support and the responsibility of maintenance of the common household, jointly and severally., Marriage as an institution has great legal significance and various obligations and duties flow from the marital relationship, as per law, in matters of inheritance of property, succession, etc. Marriage therefore involves legal requirements of formality, publicity and exclusivity, and all the legal consequences flow from that relationship. Marriages in India take place either following the personal law of the religion to which a party belongs or following the provisions of the Special Marriage Act. Under common law, marriage constitutes a contract between a man and a woman, in which the parties undertake to live together and support each other. The concept of marriage is also nationally and internationally recognised. Justice O'Regan, in Dawood v. Minister of Home Affairs, noted that marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties, who make a promise to one another to establish and maintain an intimate relationship for the rest of their lives, which obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned, but they also have public significance because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well. The institutions of marriage and the family are important social institutions that provide security, support and companionship to members of society and play an important role in the rearing of children. The celebration of a marriage gives rise to moral and legal obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage., We have referred, at length, to the concept of marriage and marital relationship to indicate that the law distinguishes between married and unmarried people, which cannot be said to be unfair when we consider the rights and obligations that flow from a legally wedded marriage. A married couple has to discharge various rights and obligations, unlike persons in a live‑in relationship, a marriage‑like relationship or a de facto relationship. Married couples who choose to marry are fully cognizant of the legal obligation that arises by operation of law on solemnisation of the marriage and the rights and duties they owe to their children and the family as a whole, unlike persons entering into a live‑in relationship. The Supreme Court of India, in Pinakin Mahipatray Rawal v. State of Gujarat, held that marital relationship means the legally protected marital interest of one spouse to another, which includes marital obligations such as companionship, living under the same roof, sexual relations, exclusive enjoyment, having children, their upbringing, services in the home, support, affection, love, liking and so on., Tipping, J., in Thompson v. Department of Social Welfare, listed characteristics relevant to determine a relationship of marriage, including: whether and how frequently the parties live in the same house; whether the parties have a sexual relationship; whether the parties give each other emotional support and companionship; whether the parties socialise together or attend activities together as a couple; the extent to which the parties share responsibility for bringing up and supporting any children; whether the parties share household and other domestic tasks; whether the parties share costs and financial responsibilities by pooling resources; whether the parties run a common household even if one partner is absent for periods of time; whether the parties go on holiday together; and whether the parties conduct themselves towards, and are treated by friends, relatives and others as if they were a married couple., Learned counsel for the petitioners have, in my considered opinion, completely failed to accord to the marital relationship the status and importance it deserves. It has been characterised by learned counsel, even in their written submissions, as an institution to which individual rights cannot be subservient. The submissions fail to take into account that marriage is not a brick‑and‑mortar institution. It is an institution which epitomises, at the highest level, the most sublime relationship that can exist between man and woman. Decidedly, it is not an imposed conception., In this relationship, given its unique character and complexity, the legislature has, advisedly, felt that no allegation of rape has a place. Sex between a wife and a husband is, whether the petitioners seek to acknowledge it or not, sacred. In no subsisting, surviving and healthy marriage should sex be a mere physical act aimed at gratifying the gross senses. The emotional element of the act of sex, when performed between a wife and husband, is undeniable. The marital bedroom is inviolable. Legislation that seeks to exclude any allegation of rape from the parameters of such a relationship, in my view, is completely immune to interference., Introducing into the marital relationship the possibility of the husband being regarded as the wife's rapist, if he has, on one or more occasions, sex with her without her consent, would be completely antithetical to the very institution of marriage, as understood in this country, both in fact and in law. The daughter born of such an act would, if the petitioners' submissions are to be accepted, be a product of rape. Though the child has been born out of wedlock, and out of a perfectly legitimate sexual act between her parents, she would be considered the child of a rapist because her mother was unwilling when she had sex with her father. Her father, as a rapist, would be liable to suffer the punishment stipulated in Section 376 of the Indian Penal Code, were her mother to prosecute. The sequelae, were the petitioners' submissions to be accepted, are mind‑boggling., The submission of learned counsel for the petitioners that, as the impugned exception accords sanctity to the institution over the rights of the individuals involved, it is unconstitutional, is fundamentally flawed. Marriage, as already noted, is not a brick‑and‑mortar institution. The institution of marriage represents the cohesive and sanctified union of the individuals in the marriage. The individuals therefore make the institution. If the institution is imperilled, the individuals are imperilled. Moreover, in advancing this submission, learned counsel seem to overlook the fact that, in a marriage, there are two individuals involved. Sustenance of the marital institution therefore involves sustenance of the rights of every husband and every wife in the country, united by a bond of marriage. Protection of the institution of marriage is therefore a sanctified constitutional and social goal. Preservation of the marital institution being the avowed object of retaining the impugned exception on the statute book, the submission of learned counsel for the petitioners that it has outlived its use is also completely bereft of substance., It is sanctified in law that public interest trumps private interest. Given the nature of the marital institution in our socio‑legal milieu, if the legislature is of the view that, for preservation of the marital institution, the impugned exception should be retained, the Supreme Court of India would not be in a position to strike down the exception unless it were to hold, per contra, that the view of the legislature is incorrect. That, however, we cannot do, as it would amount to substituting our value judgment for the value judgment of the legislature, which, in a democracy, is unquestionably entitled to precedential preference, as the voice of the legislature is, classically and constitutionally, the voice of the people., Learned counsel for the petitioners have emphasised that marriage does not entitle a husband to have forceful sex with his wife against her willingness or consent. The proposition is unexceptionable. It is in presuming the sequitur to this proposition to be that the impugned exception is unconstitutional that learned counsel for the petitioners, in my considered opinion, err. To my mind, the proposition is really tangential to the issue at hand., Marriage unquestionably does not entitle a husband to coerce his wife into sex if she is not inclined. The impugned exception does not, however, either expressly or by necessary implication, confer on the husband an entitlement to insist on sex with his wife against her willingness or consent (this aspect will be examined in somewhat greater detail later). All it says is that sexual intercourse and sexual acts, which may be referred to for convenience as sex by a husband with his wife, is not rape. By extrapolation, it may be inferred that the impugned exception also excludes from the scope of rape a situation in which the wife is not willing or does not consent. Any further extrapolation to imply that the provision encourages, sanctions or permits non‑consensual sex by a husband with his wife would be completely unwarranted., The Supreme Court, half a century ago in the celebrated decision of Dastane v. Dastane, observed that sex plays an important role in marital life and cannot be separated from other factors which lend marriage a sense of fruition and fulfillment. On similar lines, observations of a Division Bench of this Court in Rita Nijhawan v. Balkrishan Nijhawan were cited with approval by the Supreme Court in Vinita Saxena v. Pankaj Pandit. In the present case the marriage took place in 1954. Barring the pregnancy in 1958, which according to the appellant was the result of part improvement, from the day of marriage till 1964 there has never been any normal sexual life, and the respondent has failed to give sexual satisfaction. The marriage has been reduced to a shadow and a shell and the appellant has been suffering misery and frustration. In these days it would be an unthinkable proposition to suggest that the wife is not an active participant in the sexual life; therefore, the sexual weakness of the husband which denied normal sexual pleasure to the wife is of no consequence and cannot amount to cruelty. Marriage without sex is an anathema. Sex is the foundation of marriage and without vigorous and harmonious sexual activity it would be impossible for any marriage to continue for long. It cannot be denied that sexual activity in marriage has an extremely favourable influence on a woman's mind and body, and lack of proper sexual satisfaction can lead to depression and frustration. It has been said that happy and harmonious sexual relations vivify a woman's brain, develop her character and triple her vitality. Nothing is more fatal to marriage than disappointments in sexual intercourse. Significantly, the Supreme Court in Vinita Saxena recognises sex to be a matrimonial obligation. Irrespective of whether conjugal rights extend to a right to have sex, sex remains a conjugal obligation, even if not mandatorily enforceable by a decree of the Court., Marriage, as a sociological instrument, confers legitimacy to sexual activity between man and woman. A child born of wedlock, therefore, is legitimate; one born out of wedlock is not. One of the grassroots justifications for marriage is, unquestionably, the right to engage in sexual activity without societal disapprobation. Neither member of an unmarried couple has a right to seek sex from the other nor does either member have a right to expect sex from the other. Even in the case of a live‑in couple, there is no right to expect sex; the expectation of sex is merely a hope., The expectation of sex of the husband with his wife is therefore a legitimate expectation, as a healthy sexual relationship is integral to the marital bond. Unjustified denial of sexual access by either spouse to the other is not sanctified or even condoned by law. While it may not invite criminal action, it nonetheless entitles the spouse to whom sexual access has been unjustifiably denied to seek separation by way of divorce. The integrity of a subsisting social equation between wife and husband as a necessary ingredient of a sustainable marriage stands, thereby, recognised by law. Divorce unquestionably visits both spouses with civil, societal, personal and psychological consequences. The law therefore recognises the legitimacy of the desire of either spouse to have meaningful sexual relations with the other as not only a civil but a legal obligation. This aspect is acknowledged by Miss John, who, in her submission, admits that a marriage comes with reciprocal obligations and expectations of the parties, including sex., The fact that the obligation may be enforceable by law to a greater or lesser degree does not detract from its character as an obligation. Unreasonable denial of sex to a spouse has also been held in several decisions to amount to cruelty. Cruelty, needless to say, can never be something which the law sanctifies., Viewed in this backdrop, let us compare a situation of sex without a woman's consent or willingness being forced upon her by a stranger with a situation in which the man is her husband. The stranger is a violator without right, who does not even have an expectation that may be regarded as legitimate of sex with the woman. The woman, in such a situation, surrenders her sexual autonomy and freedom of choice to a complete stranger with whom she has no relationship that legally entitles the man to seek sex from her. It is an assault on her independence and on her right to choose, as noted in Rita Nijhawan v. Balkrishan Nijhawan; Samar Ghosh v. Jaya Ghosh, (2007) 4 Supreme Court of India 511; Vidhya Viswanathan v. Kartik Balakrishnan, (2014) 15 Supreme Court of India 21. The man, in turn, acts in total disregard of the woman's right to independent sexual choice., Contrasting this situation with a husband forcing his wife to have sex despite her unwillingness, the wrongdoing is undeniable. The distinction is that, where the parties are married, the woman has consciously and willingly entered into a relationship in which sex is an integral part. By deciding to marry, she has given the husband the right to expect meaningful conjugal relations. If the husband requests her on a particular occasion to have sex, he is exercising a right that vests in him by marriage and requests his wife to discharge an obligation that also devolves on her by marriage. If the wife refuses and the husband nonetheless has sex with her, the act cannot be equated with the ravishing by a stranger, nor can the impact on the wife be equated with that of a woman raped by a stranger. Assuming that a wife forced to have sex with her husband feels the same degree of outrage as a woman raped by a stranger is unjustified and unrealistic. Disagreements in married life are natural and may even lend strength to the marital bond; such disagreements can extend to the bedroom. A husband may on occasion compel his wife to have sex, though she may not be inclined. It cannot be said, with any propriety, that her experience is the same as that of a woman ravaged by a stranger. Equally, it cannot be reasonably said that a wife in a subsisting marriage who has had to have sex with her husband despite her reluctance would want to drag her husband to court for rape, seeking his incarceration under Section 376 of the Indian Penal Code. The petitioners may contend otherwise, but there is no basis for such a contention. It cannot be assumed that the petitioners' perceptions reflect the views of the majority of Indian women; such a contention would be purely presumptive., The extent to which, if the concept of rape were introduced into the marital equation, the institution of marriage or family would be affected is not something on which the Supreme Court of India can opine. The legislature feels that it does. In arriving at this conclusion, the legislature has, at its command, the vast arsenal of State resources. Legislation is not an overnight exercise, especially when it involves the decision to define an act as an offence. If, therefore, the legislature, after interaction with stakeholders and conscious deliberation and debate, forms the opinion that introduction of the concept of rape into the marital sphere may imperil the institution of marriage, this Court, even with the most gifted counsel, would be thoroughly ill‑equipped to hold otherwise. Even if the legislature were merely to decide not to take chances, that would not be an illegitimate consideration. The Court cannot substitute its view for that of the legislature and hold definitively that treating non‑consensual sex by a husband with his wife would not imperil or threaten the marital institution., Acts of physical violence by a husband on his wife are a different matter altogether and cannot be the lodestone on which we test the vires of the impugned exception. Rape encompasses all acts, from a single act of unwilling or non‑consensual sex to the grossest act of non‑consensual sexual violence. The constitutionality of the impugned exception cannot be tested by referring only to gross acts of sexual assault such as those that appeared in WP (C) 5858 of 2017, for the simple reason that striking down the impugned exception would mean that even a single act of non‑consensual sex, or sex by a husband with his wife without unwillingness, would qualify as rape. In such circumstances, can it be said that, in distinguishing between such acts when they occur between a husband and wife versus an act of rape by a stranger, the legislature has acted arbitrarily or that there is no intelligible differentia between the two cases that bears a rational nexus to the object sought to be achieved by the impugned exception?, Our task here is not to pronounce on whether the husband, in acting as he does, commits an actionable wrong. We may assume, arguendo, that he does. Our task is to adjudicate whether, in desisting from treating him as a rapist—who has committed rape within the meaning of Section 375 of the Indian Penal Code, punishable under Section 376—the legislature can be said to have acted arbitrarily or unconstitutionally. Given the unquestionable qualitative distinction between sexual relations in a marriage and sexual relations between strangers, if the legislature, in its wisdom, has decided to treat non‑consensual sex by a man with a woman who is a stranger as rape, and non‑consensual sex by a husband with his wife as not rape, I am unable to subscribe to the submission that the distinction violates Article 14 of the Constitution of India., Among the contentions advanced by Miss Nundy is the claim that the impugned exception violates Article 14 because it creates three classes of victims, though the act committed is the same. In other words, Miss Nundy submits that the same act of non‑consensual sexual intercourse, when committed by a stranger, by a husband, or by a husband who has separated from his wife, is treated differently. According to her, this is unconstitutional and violates Article 14., The contention, to my mind, is completely bereft of substance. There is no principle in law that the same act, when committed by different persons, or by perpetrators differently situated with respect to the victim, or in different circumstances, cannot be treated differently. Legally, there is no infirmity in treating the act as a crime in one circumstance and perfectly condonable in another. A father slapping a son is not a criminal offence, whereas a stranger who slaps a child may be committing a crime. Robbery, otherwise chargeable under Section 390 of the Indian Penal Code, becomes dacoity, punishable under Section 391, when conjointly committed or attempted by five or more persons. Even within the definition of rape, if the act is committed in one of the circumstances envisaged by Section 376(2), it is treated as aggravated rape, entailing a higher punitive sentence., Every offence has, essentially, four indicia: the perpetrator, the victim, the act and the punishment.
id_412	19	The four, together, assimilate into what a statute regards as a particular offence. It is not possible to vivisect the offence, as a statutory conception of the legislature, and start viewing these four indicia as individual components unrelated to each other. An act cannot be divorced from its actor. Offences are not committed by insubstantial phantasms. An act of non‑consensual sex, as committed by a complete stranger, cannot be equated with an act of non‑consensual sex by a husband. The extent of outrage felt by the wife in the two cases is also distinct and different. It would be artificial to assume that the degree of outrage felt by a wife who is compelled to have sex on a particular occasion with her husband, despite her unwillingness, is the same as the degree of outrage felt by a woman who is ravaged by a stranger against her will. Even when viewed from the point of view of the perpetrator, who is the statutory offender and who has to suffer the punishment prescribed for the act, the legitimate expectation of sex that the husband has is, in my view, a factor which may legitimately be regarded as mitigating the culpability, as the perpetrator of the act of non‑consensual sex vis‑à‑vis a stranger who has no such legitimate expectation, much less a right. There is, therefore, an intelligible differentia in the two cases. From the point of view of the victim, it would be equally unrealistic to presume that a wife, on whom a husband forces sex against her will on a particular occasion, would suffer the same degree of violation as a woman who is ravaged by a stranger. From the point of view of the victim, too, there is an intelligible differentia., The most significant distinction between the two situations is that, in the case of consensual sex between a husband and wife, there is no societal ramification whatsoever, unlike in the case of a woman raped by a stranger, as the act takes place within the privacy of the marital bedroom and, more empirically, because the man and the woman are married. Conjugal right versus conjugal expectation. It has been repeatedly emphasised by learned counsel for the petitioners that the conjugal expectation of sex does not extend to sex against the will of the spouse. As Ms Nundy felicitously puts it, conjugal rights end where bodily autonomy begins. I am entirely in agreement with the submission. However, I cannot agree with learned counsel for the petitioners that, for this reason, the impugned exception deserves to be struck down. The impugned exception does not, either directly or by necessary implication, state that, by reason of marriage, a husband has a right to have sex with the wife against her will or consent. All that it says is that, if he does so, he, unlike a stranger committing such an act, cannot be treated as a rapist. There is a clear intelligible differentia between the two situations, viewed from the point of view of the act, the perpetrator, the victim, the degree of culpability and the degree of outrage that the victim would feel once the act is perpetrated., At the very least, if the legislature has chosen to treat the two situations differently, there is no justification whatsoever, in my view, for a High Court of India, exercising jurisdiction under Article 226 of the Constitution, to interfere with the view of the legislature, even if its sensitivities impel it to think otherwise., The emphasis placed by learned counsel for the petitioners on the fact that a decree for restitution of conjugal rights can merely restitute consortium and cohabitation, and cannot include any direction to the parties to have sex, is completely off the point. The impugned exception does not seek, directly or indirectly, to enforce a non‑enforceable conjugal right, or even a conjugal expectation. The existence of such a conjugal expectation, to normal sexual relations, read with the unique relationship of marriage, provides an intelligible differentia having a rational nexus to the object of the impugned exception as well as to the object of Section 375 itself. The extent to which a decree for restitution of conjugal rights can extend, or can be enforced, is therefore not a legitimate consideration in assessing the constitutionality of the impugned exception., Learned counsel for the petitioners also contended that the frontiers of Article 14, with the development of the law, have expanded beyond mere discrimination, and that any act, whether of the legislature or of the executive, which is arbitrary infringes Article 14. By this standard, learned counsel contended that the impugned exception, in exempting husbands who have non‑consensual sex with their wives from the rigour of rape, is arbitrary., Invidious discrimination and arbitrariness, as considerations that would render a legislative or executive act unconstitutional, actually overlap to some degree. Though arbitrariness, as a jurisprudential concept, may have myriad complexions and contours, the Supreme Court of India, in Sharma Transport v. Government of Andhra Pradesh, defines the expression arbitrarily as meaning an act done in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non‑rational, not done or acting according to reason or judgement, depending on the will alone. The manner in which the considerations of arbitrariness and invidious discrimination, vis‑à‑vis Article 14 of the Constitution, dovetail into one another, is well explained in the decision of the Supreme Court of India in R.K. Garg v. Union of India., The true scope and ambit of Article 14 has been the subject‑matter of discussion in numerous decisions of this Court and the propositions applicable to cases arising under that article have been repeated so many times during the last thirty years that they now sound platitudinous. The latest and most complete exposition of the propositions relating to the applicability of Article 14 is to be found in the judgment of one of us (Chief Justice Chandrachud, as he then was) in In re The Special Courts Bill, 1978‑89. It contains a lucid statement of the propositions arising under Article 14 and, being a decision given by a bench of seven judges of this Court, it is binding upon us. The decision sets out several propositions delineating the true scope and ambit of Article 14. The relevant propositions are: (1) The classification must not be arbitrary but must be rational; that is, it must be based on qualities or characteristics found in all persons grouped together and not in others left out, and those qualities must have a reasonable relation to the object of the legislation. To pass the test, two conditions must be fulfilled: (a) the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others; and (b) that differentia must have a rational relation to the object sought to be achieved by the Act. (2) The differentia which is the basis of the classification and the object of the Act are distinct things and there must be a nexus between them. In short, while Article 14 forbids class discrimination by conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated, it does not forbid classification for the purpose of legislation, provided such classification is not arbitrary in the sense mentioned., The question, therefore, is whether the classification made by the Act in the present case satisfies the aforesaid test or is arbitrary and irrational and hence violative of the equal protection clause in Article 14. Arbitrariness, as an abstract concept, cannot, therefore, constitute the basis for striking down a legislative provision as unconstitutional, or as violative of Article 14. It has to be remembered that Article 14, after all, pertains to a fundamental right to equality. If a provision is to be struck down as violative of Article 14 on the ground that it is arbitrary, the arbitrariness must be in relation to the manner in which it creates a distinction between persons or things who appear, otherwise, to be similarly situated. In In re Natural Resources Allocation and State of Madhya Pradesh v. Rakesh Kohli, the Supreme Court held that the law may not be struck down merely on the ground that it is arbitrary; it is also necessary to establish that it is constitutionally infirm. Otherwise, the concept of arbitrariness may lead to a perplexing degree of subjectivity. There are no cut‑and‑dry indicia of arbitrariness. If arbitrariness alone were the basis, legislation would become subject to the vagaries of judicial thinking. So long as justice is administered by judges, and not automatons, arbitrariness per se would be too slender a thread on which to hang a statutory provision in order to test its constitutionality., In this context, the following declaration of the legal position, found in paragraph 11 of the judgment of the Supreme Court of India in Ameerunnissa Begum v. Mahboob Begum, recognises the arduous nature of the task faced by the legislature and the latitude enjoyed by the legislature in classifying persons, objects or situations differently: 'The nature and scope of the guarantee that is implied in the equal protection clause of the Constitution have been explained and discussed in more than one decision of this Court and do not require repetition. It is well settled that a legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause, it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view.' The statement may be regarded as Article 14 in its ultimate distilled form. The Court, seized with a challenge to a statutory provision as unconstitutional on the ground that it violates Article 14, is required to remain acutely conscious, at all times, of the nature of the task before the democratically elected legislature and the latitude that the law grants it to classify persons, situations and objects differently. The fact that such a classification is made is no ground for a Court to tinker with it. Mere unequal treatment is not per se discriminatory. What has to be established is that the differentiating factor is non‑existent, or that, even if it exists, it bears no rational nexus to the object sought to be achieved by the statutory provision concerned., In this, the Court is also required to keep in mind the distinction between the object sought to be achieved by the statutory provision and the rationale for the object. With respect to the impugned exception, this distinction is important. The object sought to be achieved by the impugned exception is transparently obvious even from the exception itself: it is to treat sex and sexual acts between a husband and wife differently from such acts committed between strangers, insofar as Section 375 is concerned. The rationale for this object, which, as originally envisaged by Macaulay, may have been protection of the conjugal rights of the husband, has evolved over time and, today, if the legislature hesitates from it, is to preserve the marital institution. The contention of Ms Nundy that such an object is illegal is, to my mind, absurd and merits outright rejection., She has, in this context, cited paragraph 74 of the report in Independent Thought and paragraph 212 of the report in Joseph Shine. Independent Thought expressly examined whether preservation of the marital institution was a justification in the case of marriage with a girl child who, statutorily, was even incapable of giving meaningful consent. It was in the backdrop of the constitutional duty to preserve and protect the girl child that the observations were returned. Joseph Shine dealt with the legitimacy of punishing adultery as a crime, given the decision right of a wife to decide on her sexual partner. Neither of these cases dealt with the issue of whether introduction, within the matrimonial ambit, of the concept of rape would imperil its sustenance as an institution of pre‑eminent socio‑legal importance, the preservation of which is a constitutional imperative. The issue before us is sui generis, and reliance on judgments which did not deal with it can hardly help., Preservation of the marital institution is in eminent public and societal interest, and it is preposterous to contend that such an object is not legal. The decisions of the Supreme Court that expound on marriage, cited supra, bear testimony to this legal position. If preservation of the marital institution is the object of the impugned exception, extending to non‑consensual sexual acts committed within marriage a treatment different from that extended to non‑consensual sexual acts committed outside marriage clearly bears a rational nexus to the object., That there is an intelligible differentia between the two situations, learned counsel for the petitioners themselves acknowledge. Once there is an intelligible differentia, a legal object that the impugned exception seeks to achieve, and a rational nexus between the differentia and the object, the scope of the enquiry by the Court ends there. It is not open to a Court to examine further whether the object of the legislation is sufficient to justify the differentia. A writ Court venturing into that territory would be exceeding the boundaries of its authority under Article 226. That is an arena in which the legislature must be freely allowed to proceed, else the task of legislation would become impossible to discharge. Once the legislature adopts the view that there is an object X that it seeks to achieve (protection of the marital institution), which is legal, and that, in order to achieve that object, it distinguishes between A and B on the basis of marriage, and that distinction has a rational nexus with object X, the legislation is ipso facto intra vires. The Court cannot proceed to enquire any further into the matter., The following passages from Aravali Golf Club v. Chander Hass are evocative of the legal position: 'Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism judges cannot cross their limits and try to take over functions which belong to another organ of the State. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain, vide Indian Drugs & Pharmaceuticals Ltd. v. Workmen and S.C. Chandra v. State of Jharkhand. Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors. There is broad separation of powers under the Constitution and each organ of the State—the legislature, the executive and the judiciary—must have respect for the other and must not encroach into each other's domains. The theory of separation of powers first propounded by the French thinker Montesquieu in his book The Spirit of Laws broadly holds the field in India too. Montesquieu writes: When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.', In Ram Jawaya Kapur v. State of Punjab a Constitution Bench of this Court observed: 'The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.' Similarly, in Asif Hameed v. State of Jammu & Kashmir a three‑Judge Bench observed: 'Although the doctrine of separation of powers has not been recognised under the Constitution in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, have all the powers including that of finance. Judiciary has no power over sword or purse, nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive.', Frankfurter, Justice of the United States Supreme Court, dissenting in the controversial expatriation case of Trop v. Dulles observed: 'All power is, in Madison's phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self‑restraint. Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail, to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self‑restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorised the Judges to sit in judgment on the wisdom of what Congress and the executive branch do.', When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and, if not, the court must strike down the action. While doing so the court must remain within its self‑imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonise on any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers., If the legislature or the executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfil their expectations, or by other lawful methods such as peaceful demonstrations. The remedy is not in the judiciary taking over the legislative or executive functions, because that would not only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions., Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter‑branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other co‑equal branches. In contrast, judicial activism's unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co‑branches. Restraint stabilises the judiciary so that it may better function in a system of inter‑branch equality., The constitutional trade‑off for independence is that judges must restrain themselves from the areas reserved to the other separate branches. Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers., One may also refer, in this context, to the following illuminating passage from Chiranjit Lal Chowdhury: 'The only other ground on which the Ordinance and the Act have been challenged is that they infringe the fundamental rights guaranteed by Article 14 of the Constitution. Equal protection of the laws, as observed by Justice Day in Southern Railway Company v. Greene, means subjection to equal laws, applying alike to all in the same situation. The inhibition of the article that the State shall not deny to any person equality before the law or the equal protection of the laws was designed to protect all persons against legislative discrimination amongst equals and to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not, however, mean that every law must have universal application, for all persons are not, by nature, in the same position. The varying needs of different classes of persons often require separate treatment and it is, therefore, established by judicial decisions that the equal protection clause of the Fourteenth Amendment of the American Constitution does not take away from the State the power to classify persons for legislative purposes. This classification may be on different bases. It may be geographical or according to objects or occupations or the like. If law deals equally with all of a certain well‑defined class it is not obnoxious and it is not open to the charge of a denial of equal protection on the ground that it has no application to other persons, for the class for whom the law has been made is different from other persons and, therefore, there is no discrimination amongst equals. It is plain that every classification is in some degree likely to produce some inequality, but mere production of inequality is not by itself enough. The inequality produced, in order to encounter the challenge of the Constitution, must be actually and palpably unreasonable and arbitrary. While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and the classification cannot be arbitrarily made without any substantial basis.', In Middleton v. Texas Power and Light Company it was pointed out that there is a strong presumption that a legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that the discriminations are based upon adequate grounds. The burden is upon the challenger of a law to show that the classification does not rest upon any reasonable basis but is essentially arbitrary.
id_412	20	If there is a classification, the Supreme Court of India will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist. If, however, there is, on the face of the statute, no classification at all or none on the basis of any apparent difference specially peculiar to any particular individual or class and not applicable to any other person or class of persons and yet the law hits only the particular individual or class it is nothing but an attempt to arbitrarily single out an individual or class for discriminating and hostile legislation. The presumption in favour of the legislature cannot in such a case be legitimately stretched so as to throw the impossible onus on the complainant to prove affirmatively that there are other individuals or class of individuals who also possess the precise amount of the identical qualities which are attributed to him so as to form a class with him. As pointed out by Brewer, J. in the Gulf, Colorado and Santa Fe Railway v. W.H. Ellis while good faith and a knowledge of existing conditions on the part of a legislature was to be presumed, yet to carry that presumption to the extent of always holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminating legislation was to make the protecting clause a mere rope of sand, in no manner restraining State action., This judgement again emphasises and underscores the manner in which arbitrariness and invidious discrimination, as considerations to strike down a statutory provision, intermix. It also underscores the necessary latitude that the legislature would always have, to classify persons and situations differently for the applicability of law, and delineates the task of the Supreme Court of India seized with the issue of determining the constitutionality of such classification. When such classification would merit judicial interference it stands tellingly exposited in the following passage from State of West Bengal v. Anwar Ali Sarkar. It can be taken to be well settled that the principle underlying the guarantee in Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another as regards the subject‑matter of the legislation when their position is substantially the same., This brings in the question of classification. As there is no infringement of the equal protection rule, if the law deals alike with all of a certain class, the legislature has the undoubted right of classifying persons and placing those whose conditions are substantially similar under the same rule of law, while applying different rules to persons differently situated. It is said that the entire problem under the equal protection clause is one of classification or of drawing lines. In making the classification the legislature cannot be expected to provide abstract symmetry. It can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognise even degrees of evil, but the classification should never be arbitrary, artificial or evasive. It must rest always upon real and substantial distinction bearing a reasonable and just relation to the thing in respect to which the classification is made; and classification made without any reasonable basis should be regarded as invalid., The legislature is free, therefore, even while defining offences, to recognise degrees of evil. A classification based on the degree of evil, which may otherwise be expressed as the extent of culpability, would also be valid. It is only a classification which is made without any reasonable basis which should be regarded as invalid. While the Supreme Court of India may examine whether the basis of classification is reasonable, once it is found to be so, the right of the legislature to classify has to be respected. Where there is no discernible basis for classification, however, or where the basis, though discernible, is unreasonable or otherwise unconstitutional, the provision would perish., More recently, the following passage from K. Thimmappa v. Chairman, Central Board of Directors, State Bank of India expresses much the same sentiment: Before we deal with the respective contentions of the parties it would be appropriate for us to notice that what Article 14 prohibits is class legislation and not reasonable classification for the purpose of legislation. If the rule‑making authority takes care to reasonably classify persons for a particular purpose and if it deals equally with all persons belonging to a well‑defined class then it would not be open to the charge of discrimination. But to pass the test of permissible classification two conditions must be fulfilled: (a) the classification must be founded on an intelligible differentia which distinguishes persons or things which are grouped together from others left out of the group; and (b) the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on a different basis and what is necessary is that there must be a nexus between the basis of classification and the object under consideration. Article 14 of the Constitution does not insist that the classification should be scientifically perfect and a court would not interfere unless the alleged classification results in apparent inequality., When a law is challenged to be discriminatory essentially on the ground that it denies equal treatment or protection, the question for determination by the Supreme Court of India is not whether it has resulted in inequality but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not rest on any rational basis having regard to the object which the legislature has in view. If a law deals with members of a well‑defined class then it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons., It is not possible to exhaust the circumstances or criteria which may afford a reasonable basis for classification in all cases. It depends on the object of the legislation, and what it really seeks to achieve., View the matter from another angle. What does the impugned Exception say? It says, in significantly omnibus terms and without any caveat or condition attached, that sexual acts and sexual intercourse by a man with his wife are not rape. It does not refer to consent, or the lack of consent. It does not refer to force, pressure or injury. It refers plainly and simply to sexual acts and sexual intercourse. Unlike judgments, every word used in a statute is to be treated as deliberately and consciously used. The manner in which a statutory provision is structured is of pre‑eminent importance in understanding the scope and ambit of the provision. The omission, on the part of the legislature, to use a particular expression such as non‑consensual, forced, or any other expression indicating absence of willingness or consent, in the impugned Exception, has to be taken note of as reflective of the legislative intent. The obvious intent of the legislature, in using the omnibus expression sexual intercourse and sexual acts without referring to presence or absence of consent, is to exclude, from the marital sphere, any allegation of rape. Expressed otherwise, what the legislature intends, quite clearly, is that an allegation of rape should find no place in a relationship of marriage. The taint of rape, according to the legislature, should never discolour a marital relationship between man and woman., Is this unconstitutional? Is it violative of Article 14? Where the husband and wife are separated even if they stay in the same house, the legislature has, in Section 376B, regarding non‑consensual sexual intercourse as punishable and applies to it the provisions of Section 375 mutatis mutandis. The impugned Exception therefore applies to subsisting and surviving marriages, where the husband and wife are together, and not separated. In a subsisting and surviving marriage, where the husband and wife are staying together and cohabiting, if the legislature feels that an allegation of rape and consequently the chance of the husband being called a rapist should find no place even if, on one occasion, the wife is compelled to have sex with the husband without willingness or consent, can it be said that the legislature acts unconstitutionally? The distinction is made because of the peculiar nature of the marital institution, and its unique contours and demographics. It is for this reason that the legislature has regarded the preservation of the marital institution as the raison d’être for continuing to retain the impugned Exception, despite several legal luminaries advising against it. Viewed thus, it is apparent that the impugned Exception, far from being unconstitutional, serves a laudatory purpose, and is in pre‑eminent public interest, aimed at preservation of the marital institution, on which the entire bedrock of society rests., The somewhat skewed angle from which learned counsel who opposed the continuance of the impugned Exception view the legal position is apparent from the submission of Ms. Nundy that Article 14 is violated by the impugned Exception as it provides immunity from prosecution for rape to a man who has forcible sex with his wife, but not to a man who has forcible sex with another woman. The proposition circles upon itself. A man who has non‑consensual, or even forcible, sex with his wife is not prosecuted for it precisely because the offence is not rape, statutorily. One cannot be prosecuted for what is not an offence. In exempting a man who has forcible, or non‑consensual, sex with his wife from being prosecuted for rape, the extant statutory position is merely being implemented. It is not, therefore, as though the two men are being treated unequally. One has committed a statutory offence, ergo he is prosecuted; the other has not, ergo he is not., Again, the submission proceeds on the principle which learned counsel for the petitioners apparently feel is not open to debate that if the act of forcible, or non‑consensual, sex by a man with a woman is necessarily rape. If it were so, then any provision which accepts a person from being prosecuted for having committed an offence would, ex facie, be arbitrary. Where the learned counsel for the petitioners err in their submission is in the presumption that every act of non‑consensual, or forced, sex by a man with a woman has necessarily to be regarded as rape. The moment learned counsel proceed on this premise, the controversy in issue in the case before us, and the challenge laid in the petition is immediately brushed aside, for the simple reason that, if non‑consensual, or forced, sex between a man and woman is rape, the impugned Exception, which says that it is not, is already regarded as illegal. The issue in controversy before us, then, does not survive for consideration, and the dialogue takes off on a tangent which has nothing to do with the lis. By proceeding on this fundamentally erroneous premise, learned counsel for the petitioners conveniently avoid the issue which actually falls for decision, viz., whether, in treating sex and sexual acts by a husband with his wife as not rape, the legislature has acted illegally or arbitrarily., I am constrained to observe that, from the very commencement of proceedings in this matter before this Bench, I repeatedly suggested to learned counsel for the petitioners, both amici and the petitioners’ counsel, that the discussion taking place at the Bar had really little to do with the controversy at hand. There was scant discussion on the precise issue before us, which is whether, in carving out an exception from the offence of rape to sexual acts committed within marriage, the legislature has, or has not, acted unconstitutionally. I also attempted to point out that there was clearly an intelligible differentia in the sexual relations between a man and a woman who are not married and between a man and a woman who are married, and sought to elicit submissions from counsel as to how, in view of the existence of such intelligible differentia, the legislature could be said to have acted unconstitutionally in treating non‑consensual sexual acts committed within marriage differently from non‑consensual sexual acts committed outside marriage. I have yet to obtain a satisfactory answer., The foregoing discussion also demonstrates the fallibility in the submission of learned counsel for the petitioners that, as it defeats the object of Section 375, of criminalising rape, the impugned Exception is arbitrary. The contention is obviously incorrect. Once again, it proceeds on the erroneous premise that a husband, in having sex with his wife without her consent, has committed rape; ergo, contend learned counsel, in exempting the husband from prosecution for rape which he has committed the impugned Exception is unconstitutional. The submission is so fundamentally illogical that one finds oneself at a loss as to how to deal with it. It glosses over the fact that the impugned Exception is precisely that, i.e., an exception to Section 375. It therefore excepts the applicability of the main part of Section 375 in the situation envisaged by the Exception. It is futile to contend that, as it is contrary to the main provision, an Exception is unconstitutional, for every Exception is intended to refer to a situation in which the main provision would not apply. It is only, therefore, where the Exception, when applied, operates against the object of the main provision, or nullifies the applicability of the main provision altogether, that the Exception can be treated as unconstitutional on that ground. The impugned Exception 2 to Section 375 states that sexual intercourse and sexual acts by a husband with his wife are not rape. Its validity cannot be tested, therefore, by presuming that the act is rape, which appears to be the fundamental premise on which learned counsel for the petitioners substantially rest their case. What has to be seen is whether, in excepting sexual intercourse and sexual acts by a husband with his wife from Section 375, the impugned Exception is unconstitutional. It is completely illogical, therefore, to contend that the impugned Exception defeats the object of the main part of Section 375, which seeks to criminalise rape, for the simple reason that the impugned Exception states that the acts envisaged therein are not rape., The object of Section 375 is, no doubt, criminalisation of rape. Rape, as defined in Section 375, refers to the sexual acts envisaged therein, done in any of the circumstances covered by firstly to seventhly. Section 375 necessarily has to be read with Section 376, as Section 376 stipulates the punishment for the offence covered by Section 375. Read in conjunction, Sections 375 and 376 provide for punishment of persons who commit rape. Rape relates to non‑consensual sexual acts of the kind referred to in Section 375. I have already opined, earlier, that there is an intelligible differentia between sexual acts committed within the confines of marriage and sexual acts committed between strangers. This differentia does not stand diluted merely because the act is non‑consensual. Once such a differentia is found to exist, and the differentia is predicated on the sui generis nature of the relationship between the wife and the husband, in excepting acts done within such a relationship from the rigour of rape, the impugned Exception actually fosters and furthers the object of Section 375, which is to punish a grossly criminal act that compromises the sexual autonomy and integrity of a woman. It cannot be forgotten that a fixation of the label of rapist attaches to a man a stigma that lasts to his dying day. Where the man is the husband of the woman concerned, and the two are in a subsisting marital relationship, staying together, excepting the man from the possibility of being so labelled, in fact, subserves the object and intendment of Section 375., The approach of the legislature on this issue, in enacting and continuing to retain on the statute book the impugned Exception 2 to Section 375, is not open to judicial reappraisal. A Court may differ in its view; that cannot, however, be a basis to overturn the legislative perception, which represents the perception of the entire national populace. In fact, treating a husband and a stranger who commit such an act on an equal footing would amount to equalising of unequals which, too, it is trite, infringes Article 14., Yet another ground on which it is sought to be contended that the impugned Exception is arbitrary is that it exempts husbands who commit gross acts of sexual violence against their wives. Ms. Nundy submits that exempting such acts from the ambit of rape cannot ever be regarded as serving the object either of the impugned Exception or of Section 375. Nor can it be said to foster the conjugal rights of the husband., This argument is also fallacious. The impugned Exception operates in an omnibus fashion to all acts covered by Section 375. It does not condone such acts. It merely states that such acts, if committed within marriage, would not be rape. The submission overlooks the main concept behind Section 375. At the cost of repetition, Section 375 covers all acts, from a single act of unwilling sex to gross perversion. They are all covered under one umbrella. Even the grossest of acts envisaged by the first part of Section 375 would not amount to rape if it does not fall within one of the circumstances stipulated in clauses firstly to seventhly in the provision; broadly, if it were consensual. Ms. Nundy refers to insertion of objects in the body of the woman, and requiring the woman to have sex with third persons. Viewed any which way, these are undoubtedly acts of gross perversion. That said, if they take place with the consent of the woman, they are not rape under Section 375. Nothing substantial can, therefore, result in favour of the stand adopted by learned counsel for the petitioners, by emphasising gross acts covered by Section 375. Whatever be the nature of the act, the guiding philosophy behind Section 375 is, quite obviously, recognition of the sexual autonomy of the woman and her power of choice, and penalising the man who violates that autonomy or that right of choice, by charging him with rape and labelling him a rapist. If, therefore, the legislature desires to exempt, from the rigour of such a charge, and such a label, husbands vis‑vis their wives, given the intelligible differentia that exists in a marital relationship vis‑vis other relationships, it is not open to a Court, exercising jurisdiction under Article 226 of the Constitution, to sit in appeal over the decision and proclaim that acts committed by husbands vis‑vis wives, if they otherwise conform to the main part of Section 375, should be rape., It merits repetition that this Court cannot approach the issue before it with a view of pronouncing on whether non‑consensual sex within marriage ought to be punished, or not, and, if it feels that it should, find a way of doing so. That is exclusively the province of the legislature. We are concerned with the vires, and the constitutional validity of the impugned Exception 2 to Section 375, and with nothing more. If the provision is intra vires, it would be upheld; if ultra vires, it would be quashed., I may extend the principle further. If the result of upholding the impugned Exception, applying the well‑settled principles governing testing of constitutionality of statutes, is that an act which, according to the Court, ought to be criminally punished as rape, ends up as not being so punished, that is entirely irrelevant as a consideration for the Court examining the issue. The subjective view of a Court that an act bears criminal character, and ought to be criminally punished, is no ground for it to strike down the legislative provision, by operation of which the act is not so punishable. If it does so, it completely effaces and obliterates the distinction between the legislature and the judiciary. At the highest, all that the Court can do in such a situation is to recommend to the legislature to take a view in the matter, setting out what, in the perception of the Court, is the right approach. The legislature would not be bound to agree with the Court, or to follow the view suggested, for the simple reason that the legislature is a microcosm of the 130 crore people that constitute the populace of the country, and represents their collective will and wisdom. It is not permissible for one person, or even a number of persons, clothed in silken robes, to superimpose their will and wisdom over the will and wisdom of the proletariat, as represented by the members of the legislature., Consent and the effect doctrine. At this juncture, I deem it appropriate to deal with the submission of learned counsel for the petitioners that the impugned Exception compromises the wife’s right to consent, or to refuse consent, to her husband’s request for sex. Learned counsel have sought to contend that, even if the impugned Exception does not expressly refer to the aspect of consent as one of the fundamental aspects of the offence of rape, it effectively nullifies, and abrogates, the right of the wife to say no, or to say yes. To bring this point home, learned counsel have emphasised that, while assessing the constitutionality of a statutory provision, the Court is required to examine not just the provision as empirically worded, but the effect of the provision in practical application. If the effect of the provision is to violate the fundamental rights of individuals, the provision becomes unconstitutional. For this purpose, they have cited Puttaswamy, which, overruling the earlier view expressed in A.K. Gopalan v. State of Madras, clearly holds that, in assessing the constitutionality of a statutory provision, the Court is not required to restrict itself to the wording of the provision, or even to its objects and reasons, but is also required to examine the effect of the provision, in practical application. If, therefore, a statutory provision operates unconstitutionally, or, in its operation, derogates from the fundamental rights of citizens, it would be unconstitutional. To that extent, the submission of learned counsel for the petitioners is unexceptionable., In so emphasising the effect of a statutory provision as a consideration to be borne in mind while assessing its constitutionality, Puttaswamy effectively reiterates what was held, as far back as in 1978, in Maneka Gandhi v. Union of India, which, in turn, relied on earlier leading authorities on the point, starting with Express Newspapers (P) Ltd v. Union of India, through Sakal Papers (P) Ltd v. Union of India, till the Gopalan enunciation of the law finally met its Waterloo in R.C. Cooper v. Union of India. These decisions, however, clarified that what mattered was the direct and inevitable effect, as intended by the legislature, and not every distant consequence. Paras 17 to 20 of the leading report in Maneka Gandhi, authored by Bhagwati, J., are of stellar significance: We think it would be proper at this stage to consider the approach to be adopted by the Court in adjudging the constitutionality of a statute on the touchstone of fundamental rights. What is the test or yardstick to be applied for determining whether a statute infringes a particular fundamental right? The law on this point has undergone radical change since the days of A.K. Gopalan case. That was the earliest decision of this Court on the subject, following almost immediately upon the commencement of the Constitution. The argument which arose for consideration in this case was that the preventive detention order results in the detention of the applicant in a cell and hence it contravenes the fundamental rights guaranteed under clauses (a), (b), (c), (d), (e) and (g) of Article 19(1). This argument was negatived by Kania, C.J., who pointed out that: The true approach is only to consider the directness of the legislation and not what will be the result of the detention, otherwise valid, on the mode of the detenue's life. Any other construction put on the article will be unreasonable. These observations were quoted with approval by Patanjali Sastri, J., speaking on behalf of the majority in Ram Singh v. State of Delhi. There, the detention of the petitioner was ordered with a view to preventing him from making any speeches prejudicial to the maintenance of public order and the argument was that the order of detention was invalid as it infringed the right of free speech and expression guaranteed under Article 19(1)(a). The Court took the view that the direct object of the order was preventive detention and not the infringement of the right of freedom of speech and expression, which was merely consequential upon the detention of the detenue and upheld the validity of the order. The decision in A.K. Gopalan case, followed by Ram Singh case, gave rise to the theory that the object and form of State action determine the extent of protection which may be claimed by an individual and the validity of such action has to be judged by considering whether it is directly in respect of the subject covered by any particular article of the Constitution or touches the said article only incidentally or indirectly. The test to be applied for determining the constitutional validity of State action with reference to fundamental rights is: what is the object of the authority in taking the action; what is the subject‑matter of the action and to which fundamental right does it relate?
id_412	21	Supreme Court of India, after referring to the observations of Kania, Chief Justice, in A.K. Gopalan case and noting that they were approved by the Full Court in Ram Singh case, pointed out that the object of the impugned order was to give protection to the witness in order to obtain true evidence in the case with a view to do justice between the parties and if incidentally it overreached to prevent the petitioner from reporting the proceedings of the Court in the press, it could not be said to contravene Article 19(1)(a)., It is interesting to note that despite the observations of Kania, Chief Justice, in A.K. Gopalan case and the approval of these observations in Ram Singh case, there were two decisions given by this Court prior to Mirajkar case which seemed to deviate and strike a different note. The first was the decision in Express Newspapers (P) Ltd. v. Union of India where N.H. Bhagwati, Judge, speaking on behalf of the Court, referred to the observations of Kania, Chief Justice, in A.K. Gopalan case and the decision in Ram Singh case but ultimately formulated the test of direct and inevitable effect for the purpose of adjudging whether a statute offends a particular fundamental right. The learned Judge pointed out that all the consequences suggested on behalf of the petitioners as flowing out of the Working Journalists (Conditions of Service) and Miscellaneous Act, 1955, namely, the tendency to curtail circulation and thereby narrow the scope of dissemination of information, fetters on the petitioners' freedom to choose the means of exercising the right, likelihood of the independence of the press being undermined by having to seek government aid, the imposition of penalty on the petitioners' right to choose the instruments for exercising the freedom or compelling them to seek alternative media, would be remote and depend upon various factors which may or may not come into play. Unless these were the direct or inevitable consequences of the measures enacted in the impugned Act, said the learned Judge, it would not be possible to strike down the legislation as having that effect and operation. A possible eventuality of this type would not necessarily be the consequence which could be in the contemplation of the legislature while enacting a measure of this type for the benefit of the workmen concerned. Then again, the learned Judge observed, if the intention or the proximate effect and operation of the Act was such as to be within the mischief of Article 19(1)(a), it would certainly be liable to be struck down. The real difficulty, however, in the way of the petitioners is that neither the intention nor the effect and operation of the impugned Act is to take away or abridge the right of freedom of speech and expression enjoyed by the petitioners., So also in Sakal Papers (P) Ltd. v. Union of India while considering the constitutional validity of the Newspaper (Price and Page) Act, 1956 and Daily Newspaper (Price and Page) Order, 1960, this Court applied the test of direct and immediate effect. This Court, relying upon the decision in Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd, pointed out that it is the substance and the practical result of the act of the State that should be considered rather than its purely legal aspect and the correct approach in such cases should be to enquire as to what in substance is the loss or injury caused to the citizen and not merely what manner and method has been adopted by the State in placing the restriction. Since the direct and immediate effect of the order would be to restrain a newspaper from publishing any number of pages for carrying its news and views, which it has a fundamental right under Article 19(1)(a) to do, unless it raises the selling price as provided in the Schedule to the Order, it was held by this Court that the order was violative of the right of the newspapers guaranteed by Article 19(1)(a). Here again, the emphasis was on the direct and inevitable effect of the impugned action of the State rather than on its object and form or subject-matter., However, it was only R.C. Cooper case that the doctrine that the object and form of the State action alone determine the extent of protection that may be claimed by an individual and that the effect of the State action on the fundamental right of the individual is irrelevant, was finally rejected. It may be pointed out that this doctrine is in substance and reality nothing else than the test of pith and substance which is applied for determining the constitutionality of legislation where there is conflict of legislative powers conferred on Federal and State Legislatures with reference to legislative lists. The question which is asked in such cases is: what is the pith and substance of the legislation; if it is within the express powers, then it is not invalidated if incidentally it affects matters which are outside the authorised field. Here also, on the application of this doctrine, the question that is required to be considered is: what is the pith and substance of the action of the State, or in other words, what is its true nature and character; if it is in respect of the subject covered by any particular fundamental right, its validity must be judged only by reference to that fundamental right and it is immaterial that it incidentally affects another fundamental right. Mathew, Judge, in his dissenting judgment in Bennett Coleman & Co. v. Union of India recognised the likeness of this doctrine to the pith and substance test and pointed out that the pith and substance test, although not strictly appropriate, might serve a useful purpose in determining whether the State action infringes a particular fundamental right. But in R.C. Cooper case, which was a decision given by the full Court consisting of eleven Judges, this doctrine was thrown overboard and it was pointed out by Shah, Judge, speaking on behalf of the majority: it is not the object of the authority making the law impairing the right of a citizen, nor the form of action that determines the protection he can claim; it is the effect of the law and of the action upon the right which attract the jurisdiction of the Court to grant relief. If this be the true view, and we think it is, in determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the legislature nor by the form of the action, but by its direct operation upon the individual's rights. We are of the view that the theory that the object and form of the State action determine the extent of protection which the aggrieved party may claim is not consistent with the constitutional scheme. In our judgment, the assumption in A.K. Gopalan case that certain articles in the Constitution exclusively deal with specific matters and in determining whether there is infringement of the individual's guaranteed rights, the object and the form of the State action alone need be considered, and effect of the laws on fundamental rights of the individuals in general will be ignored cannot be accepted as correct. The decision in R.C. Cooper case thus overturned the view taken in A.K. Gopalan case and, as pointed out by Ray, Judge, speaking on behalf of the majority in Bennett Coleman case, it laid down two inter‑related propositions, namely: first, it is not the object of the authority making the law impairing the right of the citizen nor the form of action that determines the invasion of the right; secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of the Court to grant relief. The direct operation of the Act upon the rights forms the real test., The decision in Bennett Coleman case followed upon R.C. Cooper case and it is an important and significant decision, since it elaborated and applied the thesis laid down in R.C. Cooper case. The State action which was impugned in Bennett Coleman case was a newsprint policy which inter alia imposed a maximum limit of ten pages for every newspaper but without permitting the newspaper to increase the number of pages by reducing circulation to meet its requirement even within the admissible quota. These restrictions were said to be violative of the right of free speech and expression guaranteed under Article 19(1)(a) since their direct and inevitable consequence was to limit the number of pages which could be published by a newspaper to ten. The argument of the Government was that the object of the newsprint policy was rationing and equitable distribution of imported newsprint which was a scarce commodity and not abridgement of freedom of speech and expression. The subject‑matter of the import policy was rationing of imported commodity and equitable distribution of newsprint and the newsprint policy did not directly and immediately deal with the right mentioned in Article 19(1)(a) and hence there was no violation of that article. This argument of the Government was negatived by the majority in the following words: Mr Palkhivala said that the tests of pith and substance of the subject‑matter and of direct and of incidental effect of the legislation are relevant to questions of legislative competence but they are irrelevant to the question of infringement of fundamental rights. In our view this is a sound and correct approach to interpretation of legislative measures and State action in relation to fundamental rights. The true test is whether the effect of the impugned action is to take away or abridge fundamental rights. If it be assumed that the direct object of the law or action has to be direct abridgement of the right of free speech by the impugned law or action it is to be related to the directness of effect and not to the directness of the subject‑matter of the impugned law or action. The action may have a direct effect on a fundamental right although its direct subject‑matter may be different. A law dealing directly with the defence of India or defamation may yet have a direct effect on the freedom of speech. Article 19(2) could not have such law if the restriction is unreasonable even if it is related to matters mentioned therein. Therefore, the word direct would go to the quality or character of the effect and not to the subject‑matter. The majority took the view that it was not the object of the newsprint policy or its subject‑matter which was determinative but its direct consequence or effect upon the rights of the newspapers and since the effect and consequence of the impugned policy upon the newspapers was direct control and restriction of growth and circulation of newspapers, the newsprint policy infringed freedom of speech and expression and was hence violative of Article 19(1)(a). The pith and substance theory was thus negatived in the clearest term and the test applied was as to what is the direct and inevitable consequence or effect of the impugned State action on the fundamental right of the petitioner. It is possible that in a given case the pith and substance of the State action may deal with a particular fundamental right but its direct and inevitable effect may be on another fundamental right and in that case, the State action would have to meet the challenge of the latter fundamental right. The pith and substance doctrine looks only at the object and subject‑matter of the State action, but in testing the validity of the State action with reference to fundamental rights, what the Court must consider is the direct and inevitable consequence of the State action. Otherwise, the protection of the fundamental rights would be subtly but surely eroded., It may be recalled that the test formulated in R.C. Cooper case merely refers to direct operation or direct consequence and effect of the State action on the fundamental right of the petitioner and does not use the word inevitable in this connection. But there can be no doubt, on a reading of the relevant observations of Shah, Judge, that such was the test really intended to be laid down by the Court in that case. If the test were merely of direct or indirect effect, it would be an open‑ended concept and in the absence of operational criteria for judging directness, it would give the Court an unquantifiable discretion to decide whether in a given case a consequence or effect is direct or not. Some other concept‑vehicle would be needed to quantify the extent of directness or indirectness in order to apply the test. And that is supplied by the criterion of inevitable consequence or effect adumbrated in the Express Newspapers case. This criterion helps to quantify the extent of directness necessary to constitute infringement of a fundamental right. Now, if the effect of State action on a fundamental right is direct and inevitable, then a fortiori it must be presumed to have been intended by the authority taking the action and hence this doctrine of direct and inevitable effect has been described by some jurists as the doctrine of intended and real effect. This is the test which must be applied for the purpose of determining whether Section 10(3)(c) or the impugned order made under it is violative of Article 19(1)(a) or (g). It is not, therefore, every perceived consequence, or effect, which would be of relevance while examining the constitutionality of a statutory provision. The Court is required to take into consideration only those effects which are direct, inevitable, and within the contemplation of the legislature when the provision was enacted. Viewed thus, can it be said that the effect of the impugned Exception is to nullify, abrogate, or even compromise the right of the wife to refuse consent to sex? Inherent in the object of Section 375, according to learned counsel for the petitioners, is the foregrounding of the entire law of consent. Assuming this to be the position, how does the impugned Exception, in its direct and inevitable effect, compromise the right of the wife to consent, or refuse consent, to sexual relations with her husband? On this aspect, Ms Nundy avers that the impugned Exception effectively nullifies consent to the specific acts of sexual intercourse and that it does give a license to husbands to force sex. According to her, the impugned Exception does, at the very least, condone a situation where a man forces his wife to have sex by calling it not rape, which is nothing more than a license for a husband to force his wife into sexual intercourse without penal consequences for rape. She further contends that even with the expectation or broad agreement of sexual relations in marriage, specific consent for the sexual acts cannot be done away with. More specifically, dealing with the aspect of consent, Ms Nundy submits, in the passage reproduced in paragraph 103 supra, that the impugned Exception (i) does not protect to the full extent of the law a woman's non‑consent, (ii) does not recognise the right of a married woman to say no to sexual intercourse with her husband, (iii) takes away a married woman's ability to say a joyful yes to sexual intercourse and (iv) reduces, to a nullity, the wife's sexual desire and consent. Mr Rajshekhar Rao, in his submissions, contends that the impugned Exception decriminalises non‑consensual intercourse by a husband upon his wife. He seeks to point out that every other woman, including a woman who is socially perceived as of easy virtue, is entitled to the aforesaid rights and entitled to decline consent and prosecute for rape. As against this, according to Mr Rao, the effect of the Exception is to render the wife's consent immaterial inasmuch as she cannot prosecute her husband for having non‑consensual sexual intercourse with her, i.e., for the act of rape. This last contention has already been disabused by me earlier; the impugned Exception does not state, either expressly or by necessary implication, that the wife is disentitled from prosecuting her husband for the act of rape, for the simple reason that it states that the act itself would not be rape. Thereafter, Mr Rao proceeds to echo the submissions advanced by his colleagues, predicated on the premise that the impugned Exception is founded on the Hale dictum, i.e., the archaic belief that the very act of marriage contemplates consent by the wife for sexual intercourse with a husband for all times to come, i.e., during the existence of the matrimonial relationship. Such a presumption of consent, submits Mr Rao, is inconsistent with applicable law. Ms John submits that the consequence of Exception 2 to Section 375 necessarily results in a complete and unequivocal disregard of the wife's right to consent to sex within a marriage. Further, in her submissions, she states that the impugned Exception, in effect, accords immunity to a husband disregarding his wife's non‑consent. Applying the effect doctrine, can it be said that the perceived consequences of the impugned Exception, as outlined in paragraph 160 supra, are the direct and inevitable effect of its operation? Plainly read, it is clear that there is nothing in the impugned Exception which obligates a wife to consent to having sex with her husband, wherever he so requests. All that it says is that sexual acts by a husband with his wife are not rape. It does not even obliquely refer to consent, or want of consent. That, however, does not answer the issue, according to learned counsel for the petitioners. Examine the effect of a wife's refusing consent, they exhort the Court. Does the impugned Exception condone, in any manner, a husband forcing sex on his wife without her consent? Does it say that a husband has a right to have sex with his wife, whenever he desires, irrespective of whether she consents, or does not consent, to the act? Does the impugned Exception control the wife's decisional autonomy, in such a situation? Clearly, the answer to all these questions has necessarily to be in the negative. What the learned counsel for the petitioners seek to urge is that, somehow, by not regarding the act of the husband having sex with his wife, without her will or consent, as rape within the meaning of Section 375, thereby making it punishable as rape under Section 376, the impugned Exception condones the act and compromises on the wife's right to grant, or refuse, consent. This contention, if it were to be accepted, would require acceptance of the premise that, in the first instance, the act of the husband in having sex with his wife against her will or consent is rape, or should be regarded as rape, and, in the second, that the impugned Exception restrains the victim‑wife from prosecuting her husband for having committed rape upon her. In other words, the inability of the wife to prosecute her husband for rape is treated, by learned counsel for the petitioners, as compromising on the wife's right to grant, or refuse, consent to a request for sex, when made by the husband. Learned counsel for the petitioners would, therefore, seek to contend that there is an inherent right in the wife, in such a situation, to prosecute her husband for rape and nothing short of rape, and that, in compromising this right, her decisional autonomy, regarding whether to grant, or refuse, consent, also stands compromised. To my mind, that is stretching the impugned Exception to a vanishing point. Every perceived consequence of the applicability of a statutory provision cannot be regarded as its direct and inevitable effect. What the petitioners seek to urge, in principle, is that, because the wife, in the event of the husband's compelling her to have sex against her consent, cannot prosecute him for rape, therefore the wife would be compelled to consent to the act. The conclusion does not flow from the premise. The mere fact that, if the wife, on a particular occasion, were not to grant consent for sex with her husband, and if, nonetheless, the husband were to compel her to have sex, the act committed by him would not qualify as rape within the meaning of Section 375 cannot, in my view, be regarded as disregarding altogether the wife's right to grant, or refuse, consent. It does not follow as a direct and inevitable effect of the operation of the impugned Exception. In this context, the submissions of Ms Nundy, reproduced in paragraph 103 supra, are more cautious. She submits that the impugned Exception encourages a husband to have forced sexual intercourse with his wife and encourages some husbands to do illegally that which cannot be done legally, on the purport that they are exercising their conjugal right. To my mind, the impugned Exception cannot be said to do the former and, if it does the latter, would not invalidate it. The impugned Exception does not encourage any husband to force sex on his wife, unmindful of her consent. If some husbands do feel so encouraged, that would be attributable solely to their own perverse predilections, and is certainly not the direct and inevitable effect of operation of the impugned Exception. All that the impugned Exception does, at the cost of repetition many times over, is not to label, as rape, sexual activities between a husband and wife. To contend that, by extreme extrapolation, the effect of this provision would be that a wife would never be able to refuse consent to sex, when her husband demands it, is to visualise an eventuality which even the legislature, at the time of enacting the provision or even in the post‑Constitutional period, could not legitimately be said to have envisaged. There is another, and more important, infirmity in the consent argument advanced by the petitioners, and why it essentially obfuscates the main issue in controversy. Grant, or refusal, of consent by anyone, to any act, is a physical fact. If a man seeks sexual relations with a woman, and the woman refuses consent, that refusal, as a physical fact, is independent of any relationship between the man and woman. By emphasising this physical fact, which remains the same irrespective of whether the man and woman are married or unmarried, what the petitioners seek to do, effectively, is to obfuscate all other distinguishing features between the two situations. In the two situations between which the legislature seeks to draw a distinction, i.e., non‑consensual sex between a man and a woman, where the man is a stranger, and where the man is married to the woman, the petitioners seek to contend that there is no legitimate basis for drawing such a distinction as, in either case, the woman had refused consent. Any distinction between the two cases, according to learned counsel for the petitioners, would amount to disregarding and reducing to a nullity the woman's non‑consent. In so foregrounding the aspect of want of consent, learned counsel conveniently disregards all other distinguishing circumstances, including the circumstances in which the request was made, the relationship between the parties, the legitimate conjugal expectations of the husband and the reciprocal obligations of the wife, the peculiar demographics and incidents of marriage, vis‑à‑vis all other relationships between man and woman, and all other legitimate considerations which justify extending, to sexual intercourse and sexual acts within marriage, a treatment different from such acts committed outside the marital sphere. Unjustified denial of sex by either spouse, within a marital relationship is, even as per the petitioners, cruelty, entitling the other spouse to seek divorce on that ground. A Division Bench of this Court has, in a recent decision in Rishu Aggarwal v. Mohit Goyal, held that it tantamounts to matrimonial misconduct and, equally, may certainly constitute hardship to the spouse to whom sex has been denied. Learned counsel for the petitioners, themselves, acknowledge the existence of an in‑praesenti and continuing obligation, of either spouse, to provide reasonable sexual access to the other. The existence, in each spouse, of a legitimate conjugal expectation of meaningful sexual relations with the other is also acknowledged and admitted. The importance of these obligations and expectations are completely undermined in the submissions advanced by learned counsel for the petitioners. These obligations, or expectations, do not, needless to say, entitle the husband to coerce or force his wife into sex, against her will, which learned counsel for the petitioners erroneously seem to assume to be the implication of the impugned Exception. At the same time, these obligations, expectations and considerations, which are completely absent in the case of a stranger who seeks sexual congress, do constitute a sufficient basis for the legislature to distinguish qualitatively between an incident of non‑consensual sex within the marital sphere and without it. In view of these several distinguishing features that mark out the relationship between a husband and wife, and its dynamics both within and outside the confines of the bedroom, as sui generis, if the legislature has desired not to characterize husbands as rapists, I completely fail to see how the Court can hold otherwise. What learned counsel for the petitioners seek to contend is that, because the right of the wife to her bodily autonomy is so inviolable and sacred, every act that transgresses or violates such right must of necessity be fairly labelled as rape. That is not, however, how the law works. The submission is, conceptually, not too distanced from the contention that, because the right to human life is inviolable and sacred, every act of the taking of life, by one person of another, must, of necessity, be fairly labelled as murder. Besides the fact that, as a Court exercising jurisdiction under Article 226 of the Constitution of India, we are not empowered to return any such proclamation, which would amount to unconscionable encroachment on the legislative sphere and there is, even otherwise, no basis for assuming every act of non‑consensual sexual intercourse between man and woman to be rape, except the petitioners' own personal idea of what the legal position should be, the legislature is perfectly within its rights to treat, for the purposes of legal liability whether criminal or civil, an act differently, depending on the circumstances in which it is committed, the identity of the perpetrator, and the identity of the victim. All that is required is the existence of an intelligible differentia having a rational nexus to the object of making the distinction. Presently, there can be no constitutional infirmity in the legislative dispensation. The impugned Exception, therefore, neither compromises on, nor disregards, the aspect of consent of the woman to a sexual advance by the man. As against this one aspect which is common to non‑consensual sex between the man and the woman, whether they be situated in a marital, or a non‑marital setting, the impugned Exception, taking into consideration other differentiating factors, and the element of overwhelming public interest in preserving the marital institution, treats the two situations as different and unequal and, therefore, extends to them different treatments. This, in my view, is entirely in sync with Article 14, and its mandate, as it refuses to treat, as equal, two situations which are clearly not comparable with each other. The submissions of learned counsel for the petitioners, to the effect that the impugned Exception compromises on the right of the wife to grant, or refuse, consent to sex, or reduces her decisional autonomy, in that regard, to a nullity, is therefore completely bereft of substance. Mr Gonsalves had advanced the contention that, in examining the constitutionality of the impugned Exception, Supreme Court of India should not enter into the aspects of consent and coercion, but should allow the jurisprudence on these aspects to develop once the impugned Exception is struck down as, in his submission, these aspects would vary on a case‑to‑case basis.
id_412	22	The submission, according to me, merits rejection outright. As learned Counsel for the petitioners stated, the aspect of want of consent is one of the necessary ingredients of the offence of rape, as defined in Section 375 of the Indian Penal Code. It is not possible, therefore, for a Court to deal with the provision, without understanding the concept of consent. Having said that, as I have already expressed, foregrounding of the concept of consent is really not justified in the backdrop of the controversy in issue, as consent is a static fact, irrespective of the other differentiating factors that exist in non‑consensual sex between strangers, vis‑vis non‑consensual sex between husband and wife, and what the Supreme Court of India is required to examine is whether these differentiating factors are sufficient to validate, constitutionally, the different treatment to non‑consensual sex between husband and wife, as envisioned by the impugned Exception. The common factor of non‑consent, therefore, really does not aid the discussion., In the proverbial nutshell, the impugned Exception retains, intact, the wife’s decisional autonomy in the matter. She still has the right to either say no, or, as Ms. Nundy chooses to express it, a joyful yes. The impugned Exception does not compromise her right, to do so, in any manner. In fact, the impugned Exception does not even come in for application at that stage. It applies only if, despite the wife’s no, her husband nonetheless compels her to have sex. In such a situation, the impugned Exception, for reasons which are perfectly valid and in sync with Article 14, holds that the husband cannot be convicted for rape. There is no inherent fundamental right, in the wife, to have her husband convicted for rape, relatable to Article 21, Article 19, or any other Article in the Constitution., The impugned Exception does not treat the offence as condonable; it merely disapproves the use of the rape vocabulary in the context of marital sexual relations. The wife, if aggrieved, has her remedies, criminally, under Sections 304B, 306, 377 and 498A of the Indian Penal Code and Section 3 of the Dowry Prohibition Act, 1961, civilly, by seeking divorce on the ground of cruelty (if it amounts to such), and under the Domestic Violence Act both civilly and criminally. The petitioners’ grievance that these statutes do not punish the act of non‑consensual sex by the husband with his wife as rape holds no water, simply because the act is not rape., There is no inflexible legal principle that every act perpetrated by one human being on another must necessarily invite criminal consequences. In the event that the act of the husband, in having sex with his wife against her will or consent, satisfies the ingredients of any of the criminal statutory provisions aforesaid, he would be criminally liable. Else, he would not. The Supreme Court of India, in exercise of its jurisdiction under Article 226 of the Constitution, cannot hold that he should be criminally liable, much less that he should be held as having committed rape. We cannot legislate, or rewrite the statute. Nor can we label, as an offence of rape, an act which, when committed in certain circumstances having an intelligible differentia to all other circumstances, the legislature does not see fit to call rape., Ms. Nundy would call it fair labelling. While, personally, I am unable to concur with her, even assuming, for the sake of argument, that it were, it is the legislature, that represents the will of the teeming millions in the country, which would have to be so convinced; not us. We cannot label, as particular offences, acts that the legislature has consciously not chosen to so label. Where, in so choosing, the legislature has not acted in derogation of the Constitution, we have to step back. Any further foray by us into this disputed realm would partake of the character of judicial legislation, which is completely proscribed by law., Empirically, even if the legislature has, qua a particular act, decided to make it only subject to civil, and not criminal, action, we cannot tinker with the statute and strike down a provision so as to render the act criminally liable, even if we feel that it should be a crime. It is only if the provision which deems the act not to be an offence is constitutionally infirm, applying the indicia well‑established in that regard, that we can strike the provision down. Even then, our power to do so would be conditioned by the consideration that, by doing so, we should not be creating an offence, regarding which I discuss in greater detail later., If the petitioners feel that the act of a husband compelling, or even forcing, his wife to have sex with him, against her will or consent, should amount to rape and should attract Section 375, or that the other applicable provisions in civil and criminal law are insufficient to deal with such a situation, they would have to take up the issue in Parliament, not in the Supreme Court of India. Should the legislature be convinced of their case, the petitioners’ grievances may well be met. Should they be met, and should the Indian Penal Code be amended as they would seek, perhaps hypothetically, any challenge to such amendment may also be largely impervious to judicial challenge, if it conforms to constitutional standards, and absent any constitutional infirmity. We cannot express any opinion either way., Given the unique demographics of a marriage, the legislature has, in several statutory provisions, carved out exceptions, or special dispensations, which have stood the test of time. Exception 2 to Section 375 is essentially another manifestation of the same philosophy. It is eminently in public interest. There is a sui generis entitlement of the marital sphere to its own privacy. This cannot be compromised. The contention of the petitioners that the impugned Exception constitutionally accords preference to the privacy of the marital institution over the privacy of the individuals involved (particularly the wife) does not, I am constrained to say, make sense, as the impugned Exception does not compromise, in any manner, the privacy of the individuals involved. It, on the other hand, advises against unwarranted judicial or executive incursions into the privacy of the marital bedroom and, in doing so, cannot be regarded as sanctioning an unconstitutional dispensation., Imaginary conceptions of the affront that wives may feel if compelled to have sex with their husbands against their will or consent cannot predominate public interest, which is entitled to overarching preeminence. What may make, or mar, a marriage cannot be predicted by us. We cannot return a value judgement that, in regarding the removal, from the marital demographic, any suggestion of rape, as necessary for preservation and protection of the institution of marriage, and is in its best interests, the legislature has erred. That, in my view, would amount to no less than our sitting in appeal over the wisdom of the democratically elected legislature, which is completely and irrevocably proscribed by law., Ms. Nundy had sought to point out that, by operation of the impugned Exception, a husband would stand immunized from prosecution for rape, even if he were to commit one or more of the gross acts of perversion envisaged by the first part of Section 375. The submission, essentially, misses the wood for the trees. Section 375 is widely worded. It covers all manners of sexual acts, committed under one or more of the seven enumerated circumstances envisaged by clause as firstly to seventhly. The decision not to apply, to sexual acts committed within marriage, the concept of rape would, by necessity, cover all the acts envisaged by Section 375. The fact that, in so doing, acts of gross perversion would also stand covered, cannot operate to invalidate the impugned Exception., There are other provisions that criminally penalise, to an equal if not greater degree, such acts, especially where they result in physical injury to the woman. These provisions, therefore, serve to differentiate gross acts, among those contemplated by Section 375, with milder offences. If the case of the petitioners, which appears to be one of the lines of argument advanced by Ms. Rebecca John, is that these provisions only cater to specific circumstances, such as cruelty, attempted suicide, grievous hurt, and the like, and do not cover simple cases of a husband compelling his wife to have sex without her willingness or consent, that would be a case which they would have to take up before the Parliament, seeking enactment of a law to cover all cases of non‑consensual sexual intercourse or sexual acts between husband and wife. The Parliament is empowered to legislate and frame a new law for the said purpose. Equally, the Parliament may also deem it appropriate to do away with the impugned Exception. We, however, cannot do so unless the impugned Exception is constitutionally vulnerable. In my considered opinion, it is not., Before closing the discussion on Article 14, I may deal with the submission of Ms. Nundy that fair labelling of an act of non‑consensual sex, forced by a husband on his wife, would require the act to be labelled as rape. No perceptible foundation for this submission is forthcoming, save and except the personal perception of Ms. Nundy and other learned counsel espousing the same cause. This submission is predicated on the essentially faulty premise that every act of non‑consensual sex by a man with a woman, irrespective of the relationship between them, the circumstances in which they are situated, and every other distinguishing feature, is necessarily to be regarded as rape. I have already disabused this submission in the earlier part of the discussion. Absent this presumption, there is no basis whatsoever for the submission of Ms. Nundy that an act of non‑consensual sex by a husband with his wife, if it is to be fairly labelled, is necessarily to be regarded as rape. The plea of fair labelling advanced by Ms. Nundy has, therefore, in my view, to be rejected., Learned Counsel for the petitioners have chosen to submit that the impugned Exception compromises the wife’s right of sexual self‑expression, by compromising on her right to consent, or deny consent, to sex with her husband. Clearly, it does not. The foregoing discussion sufficiently answers the point, which, therefore, to my mind, is completely misconceived., One of the main planks of the submission by learned Counsel for the petitioners, regarding infringement by the impugned Exception of the rights of a wife under Article 21, predicated on the notion that the impugned Exception completely disregards the decisional autonomy of the wife regarding sex, has already been dealt with hereinabove. Upon going through the submissions advanced by learned Counsel, as well as learned amici, there is really nothing more which could be said to be substantial with respect to the submission that the impugned Exception violates the Article 21 rights of women. Ms. Nundy submits that any restraint on a woman’s right to refuse participation in sexual activity compromises her bodily integrity and, resultantly, her rights under Article 21. I have already opined that the impugned Exception does not directly or indirectly affect the woman’s right to refuse participation in sexual activity. I have also pointed out that there is no fundamental right, either in Article 21 or in any other article of the Constitution, to a woman to prosecute a man who has sex with her without her consent for rape. Such a right does exist if the act falls within Section 375 and is not covered by either of the Exceptions thereto. There is no right, relatable to any of the provisions of Part III of the Constitution, in the woman to prosecute the man for rape even if the man happens to be her husband and, therefore, is entitled to the protection of the impugned Exception. Had there existed a right, constitutional even if not fundamental, entitling every woman to prosecute any man who had sex with her against her willingness or consent, irrespective of the relationship of the man with her, then, unquestionably, there would be substance in the contention of learned Counsel for the petitioners that the impugned Exception, in doing away with this right, is unconstitutional. No such right, however, exists; ergo, there is no constitutional invalidity, either, in the impugned Exception., The opening paragraph of the written submissions tendered by Mr. Rajshekhar Rao makes, in this context, for interesting reading. Mr. Rao has titled the paragraph ‘The Exception violates Article 21’. Thereafter, the actual paragraph reads thus: The act of non‑consensual sexual intercourse or rape is abhorrent and inherently violative of the basic right to life and liberty guaranteed by Article 21 in any context. It is the infliction not merely of physical injury but the deep sense of deathless shame and causes deep psychological, physical and emotional trauma, thereby degrading the very soul of the victim. As such, it is an offence not just against the victim but society at large. It also violates a woman’s right to (a) equality and equal status of all human beings; (b) dignity and bodily integrity; (c) personal and sexual autonomy; (d) bodily privacy; and (e) reproductive choices viz. procreation (and abstention from procreation). Exception 2 to Section 375 of the Indian Penal Code decriminalises such non‑consensual intercourse by a husband upon his wife and is, therefore, unconstitutional., This passage invites several comments. The observations in the said paragraph relating to the abhorrent nature of the offence of rape and its deleterious effects on the victim are, needless to say, unexceptionable. I have had occasion to express much the same sentiment in my decision in Shree Bhagwan v. State, thus: Rape devastates, irreversibly and irreparably. It is a vicious expression of subjugation of woman by man, where the perpetrator seeks to take brute advantage of what is, at best, a chance chromosomal circumstance. It is an anachronism, which, decidedly, cannot be tolerated, in a day and age in which the sexes march arm in arm, matching stride for stride. Rape is, in the ultimate eventuate, a crime not of passion but of power, and when committed by an adult on an innocent child, a crime of unmentionable perversity. On this, clearly, there can be no two opinions., If one were to apply practically what has been said by Mr. Rao of the crime of rape, the entire raison d’être of the impugned Exception becomes apparent. As Mr. Rao correctly states, rape inflicts on the woman a deep sense of deathless shame and results in deep psychological, physical and emotional trauma, degrading the very soul of the victim. When one examines these aspects in the backdrop of sexual assault by a stranger versus non‑consensual sex between husband and wife, the distinction in the two situations becomes starkly apparent. A woman who is waylaid by a stranger and suffers sexual assault even if it were to fall short of actual rape sustains much more physical, emotional and psychological trauma than a wife who has, on one or more occasions, to have sex with her husband despite her unwillingness. It would be grossly unrealistic, in my considered opinion, to treat these two situations as even remotely proximate. Acts which, when committed by strangers, result in far greater damage and trauma cannot reasonably be regarded as having the same effect when committed by one’s spouse, especially in the case of a subsisting and surviving marriage., The gross effects on the physical and emotional psyche of a woman who is forced into non‑consensual sex by a stranger cannot be said to visit a wife placed in the same situation vis‑vis her husband. In any event, the distinction between the two situations is apparent. If, therefore, the legislature does not choose to attach to the latter situation the appellation of rape, which would apply in the former, the distinction is founded on an intelligible differentia and does not call for judicial censure., Interestingly, all the features enumerated in the opening paragraph of Mr. Rao’s submissions are features of rape and not of the impugned Exception. While all the effects enumerated by Mr. Rao may be said about victims of rape, that cannot be a ground to contend that, in regarding a husband who has non‑consensual sex with his wife as not a rapist, the impugned Exception is rendered unconstitutional. Mr. Rao’s submission that the impugned Exception is unconstitutional as it decriminalises such non‑consensual intercourse by a husband upon his wife cannot, as stated, be accepted, for the simple reason that there is an intelligible distinction between non‑consensual sexual intercourse by a husband with his wife and non‑consensual sexual intercourse by a stranger with a stranger., In my view, therefore, Article 21 of the Constitution does not even come in for discussion in the present case. Its invocation by learned Counsel for the petitioners is, therefore, in my opinion, fundamentally misconceived., I am of the considered opinion that, apart from all other considerations, and even if it were to be assumed that the impugned Exception does infract any right guaranteed to wives by Part III of the Constitution, the Supreme Court of India would nonetheless not be in a position to strike down the impugned Exception, as doing so would result in creation of an offence., Learned counsel for the petitioners emphatically contend otherwise. According to them, the offence of rape already exists in Section 375, and all that striking down of the impugned Exception would achieve is removal of an unconstitutional restraint on the operation of the main Section. According to them, while removal of the impugned Exception may enlarge the class of offenders liable to be prosecuted for an offence under Section 375, it would not create a new offence. Ms. Nundy has sought to draw a distinction between creation of an offence and enlargement of the class of persons who would be regarded as offenders., That apart, learned Counsel for the petitioners have also sought to contend that, once a statutory provision is found to be unconstitutional, Article 13 of the Constitution mandates that the Court strike it down, even if, as a consequence, a new offence is created. Learned Counsel have also placed considerable reliance on the decision in Independent Thought to buttress their contention that, by striking down the impugned Exception, the Court would not be creating an offence., Any reference to the decision in Independent Thought as a precedent to decide on the validity of the issue in controversy in the present case, in my considered opinion, would be not only unjustified but would be outright improper. The Supreme Court has taken pains in the said decision to clarify, at several points, that the decision is not an authority on the aspect of constitutionality of the impugned Exception, insofar as it relates to sex between an adult husband and wife. That apart, the issue in controversy in Independent Thought was as to whether the impugned Exception could be allowed to remain as it is, insofar as it specified the wife as being not below 15 years of age, as that would render the impugned Exception in conflict with the main part of Section 375 as well as the Protection of Children from Sexual Offences Act and the Protection of Children from Sexual Offences (Amendment) Act., Pervading through the entire fabric of the judgement is the keen sensitivity that the Supreme Court has extended to the rights of the girl child. One may refer illustratively to the following passages, which underscore the reason why any reliance on the decision, as a precedent, much less an authoritative precedent, for the issue in controversy before us, would be thoroughly misguided: (per Lokur, J.) The issue before us is a limited but one of considerable public importance whether sexual intercourse between a man and his wife who is a girl between 15 and 18 years of age is rape? Exception 2 to Section 375 of the Indian Penal Code answers this in the negative, but in our opinion sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. The Exception carved out in the Indian Penal Code creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. The artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions. It is also contrary to the philosophy behind some statutes, the bodily integrity of the girl child and her reproductive choice., We make it clear that we have refrained from making any observation with regard to the marital rape of a woman who is 18 years of age and above since that issue is not before us at all. Therefore we should not be understood to advert to that issue even collaterally., The duality therefore is that having sexual intercourse with a girl child between 15 and 18 years of age, the husband of the girl child is said to have not committed rape as defined in Section 375 of the Indian Penal Code but is said to have committed aggravated penetrative sexual assault in terms of Section 5(n) of the Protection of Children from Sexual Offences Act. There is no real or material difference between the definition of rape in the terms of Section 375 of the Indian Penal Code and penetrative sexual assault in the terms of Section 3 of the Protection of Children from Sexual Offences Act. The only difference is that the definition of rape is somewhat more elaborate and has two Exceptions but the sum and substance of the two definitions is more or less the same and the punishment under Section 376(1) of the Indian Penal Code for being found guilty of committing the offence of rape is the same as for penetrative sexual assault under Section 4 of the Protection of Children from Sexual Offences Act. Similarly, the punishment for aggravated rape under Section 376(2) of the Indian Penal Code is the same as for aggravated penetrative sexual assault under Section 6 of the Protection of Children from Sexual Offences Act. Consequently, it is immaterial if a person is guilty of the same sexual activity under the provisions of the Protection of Children from Sexual Offences Act or the provisions of the Indian Penal Code; the end result is the same and only the forum of trial changes., At this stage it is necessary to refer to Section 42‑A inserted in the Protection of Children from Sexual Offences Act by an amendment made on 3‑2‑2013. This section reads: 42‑A. Act not in derogation of any other law. The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force and, in case of any inconsistency, the provisions of this Act shall have overriding effect on the provisions of any such law to the extent of the inconsistency., One of the questions that arises for our consideration is whether there is any incongruity between Exception 2 to Section 375 of the Indian Penal Code and Section 5(n) of the Protection of Children from Sexual Offences Act and which provision overrides the other. To decide this, it would be necessary to keep Section 42‑A of the Protection of Children from Sexual Offences Act in mind as well as Sections 5 and 41 of the Indian Penal Code., It is obvious from a brief survey of the various statutes referred to above that a child is a person below 18 years of age who is entitled to the protection of her human rights including the right to live with dignity; if she is unfortunately married while a child, she is protected from domestic violence, both physical and mental, as well as from physical and sexual abuse; if she is unfortunately married while a child, her marriage is in violation of the law and therefore an offence and such a marriage is voidable at her instance and the person marrying her is committing a punishable offence; the husband of the girl child would be committing aggravated penetrative sexual assault when he has sexual intercourse with her and is thereby committing a punishable offence under the Protection of Children from Sexual Offences Act. The only jarring note in this scheme of the pro‑child legislations is to be found in Exception 2 to Section 375 of the Indian Penal Code which provides that sexual intercourse with a girl child between 15 and 18 years of age is not rape if the sexual intercourse is between the girl child and her husband. Therefore, the question of punishing the husband simply does not arise., If such is the traumatic impact that rape could and does have on an adult victim, we can only guess what impact it could have on a girl child and yet it is not a criminal offence in the terms of Exception 2 to Section 375 of the Indian Penal Code but is an offence under the Protection of Children from Sexual Offences Act only. An anomalous state of affairs exists on a combined reading of the Indian Penal Code and the Protection of Children from Sexual Offences Act. An unmarried girl below 18 years of age could be a victim of rape under the Indian Penal Code and a victim of penetrative sexual assault under the Protection of Children from Sexual Offences Act. Such a victim might have the solace of prosecuting the rapist. A married girl between 15 and 18 years of age could be a victim of aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act, but she cannot be a victim of rape under the Indian Penal Code if the rapist is her husband since the Indian Penal Code does not recognise such penetrative sexual assault as rape. Therefore such a girl child has no recourse to law under the provisions of the Indian Penal Code notwithstanding that the marital rape could degrade and humiliate her, destroy her entire psychology pushing her into a deep emotional crisis and dwarf and destroy her whole personality and degrade her very soul. However, a victim could prosecute the rapist under the Protection of Children from Sexual Offences Act. We see no rationale for such an artificial distinction., While we are not concerned with the general question of marital rape of an adult woman but only with marital rape of a girl child between 15 and 18 years of age in the context of Exception 2 to Section 375 of the Indian Penal Code, it is worth noting the view expressed by the Committee on Amendments to Criminal Law chaired by Justice J.S. Verma (Retired). In Paras 72, 73 and 74 of the Report it was stated that the outdated notion that a wife is no more than a subservient chattel of her husband has since been given up in the United Kingdom. Reference was also made to a decision of the European Commission of Human Rights which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim.
id_412	23	According to the common law of coverture, a wife was deemed to have consented at the time of the marriage to have intercourse with her husband at his whim. Moreover, this consent could not be revoked. As far back as 1736, Sir Matthew Hale declared: The husband cannot be guilty of rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given herself up in this kind unto her husband which she cannot retract. This immunity has now been withdrawn in most major jurisdictions. In England and Wales, the House of Lords held in 1991 that the status of married women had changed beyond all recognition since Hale set out his proposition. Most importantly, Lord Keith, speaking for the Supreme Court of India, declared that marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband. Our view is supported by the judgment of the European Commission of Human Rights in C.R. v. United Kingdom which endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim. Importantly, it acknowledged that this change in the common law was in accordance with the fundamental objectives of the Convention on Human Rights, the very essence of which is respect for human rights, dignity and freedom. This was given statutory recognition in the Criminal Justice and Public Order Act, 1994., On a combined reading of C.R. v. United Kingdom and Eisenstadt v. Baird, it is quite clear that a rapist remains a rapist and marriage with the victim does not convert him into a non‑rapist. Similarly, a rape is a rape whether it is described as such or as penetrative sexual assault or aggravated penetrative sexual assault. A rape that actually occurs cannot legislatively be simply wished away or legislatively denied as non‑existent. Harmonising the Indian Penal Code, the Protection of Children from Sexual Offences Act, the Juvenile Justice Act and other statutes, there is an apparent conflict between the provisions of the Indian Penal Code and the Protection of Children from Sexual Offences Act. The rape of a married girl child (a girl child between 15 and 18 years of age) is not rape under the Indian Penal Code and therefore not an offence in view of Exception 2 to Section 375 of the Indian Penal Code, but it is an offence of aggravated penetrative sexual assault under Section 5(n) of the Protection of Children from Sexual Offences Act and punishable under Section 6 of that Act. This conflict needs to be resolved in the best interest of the girl child and the provisions of various complementary statutes need to be harmonised and read purposively to present an articulate whole., The view that marital rape of a girl child has the potential of destroying the institution of marriage cannot be accepted. Marriage is not institutional but personal; nothing can destroy the institution of marriage except a statute that makes marriage illegal and punishable. A divorce may destroy a marriage but does it have the potential of destroying the institution of marriage? A judicial separation may dent a marital relationship but does it have the potential of destroying the institution of marriage or even the marriage? Can it be said that no divorce should be permitted or that judicial separation should be prohibited? The answer is quite obvious., Looked at from another perspective, the Protection of Children from Marriage Act actually makes child marriages voidable and makes the parties to a child marriage (other than the girl child) punishable for an offence under the said Act. For someone who supports the institution of marriage, nothing could be more destructive of the institution of marriage than the Protection of Children from Marriage Act, which makes a child marriage voidable and punishable on the one hand and, on the other, collaterally legitimises the pernicious practice of child marriages. It is doubtful if the Parliamentary Standing Committee intended such a situation along with its attendant adverse and detrimental impacts, and so we leave it at that., Assuming some objective is sought to be achieved by the artificial distinction, the further question is: what is the rational nexus between de‑criminalising sexual intercourse under the Indian Penal Code with a married girl child and an unclear and uncertain statutory objective? There is no intelligible answer to this question particularly since sexual intercourse with a married girl child is a criminal offence of aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act. Therefore, while the husband of a married girl child might not have committed rape for the purposes of the Indian Penal Code, he would nevertheless have committed aggravated penetrative sexual assault for the purposes of the Protection of Children from Sexual Offences Act. The punishment for rape (assuming it is committed) and the punishment for penetrative sexual assault is the same, namely, imprisonment for a minimum period of seven years which may extend to imprisonment for life. Similarly, for an aggravated form of rape the punishment is a minimum period of ten years' imprisonment which may extend to imprisonment for life under the Indian Penal Code, and the punishment for aggravated penetrative sexual assault (which is applicable in the case of a married girl child) is the same under the Protection of Children from Sexual Offences Act. In other words, the artificial distinction merely takes the husband of the girl child out of the clutches of the Indian Penal Code while retaining him within the clutches of the Protection of Children from Sexual Offences Act. We are unable to understand why this is so and no valid justification or explanation is forthcoming from the Union of India., The entire issue of the interpretation of the Juvenile Justice Act, the Protection of Children from Sexual Offences Act, the Protection of Children from Marriage Act and Exception 2 to Section 375 of the Indian Penal Code can be looked at from yet another perspective, the perspective of purposive and harmonious construction of statutes relating to the same subject‑matter. Long ago, it was said by Lord Denning that when a defect appears, a Judge cannot fold his hands and blame the draftsman but must also consider the social conditions and give force and life to the intention of the legislature. It was said in Seaford Court Estates Ltd. v. Asher that a Judge, believing himself to be fettered by the supposed rule that he must look only to the language, laments that the draftsmen have not provided for this or that, or have been guilty of some ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give force and life to the intention of the legislature., We make it clear that we have not at all dealt with the larger issue of marital rape of adult women since that issue was not raised before us by the petitioner or the intervener (per Justice Deepak Gupta)., Whether Exception 2 to Section 375 of the Indian Penal Code, insofar as it relates to girls aged 15 to 18 years, is unconstitutional and liable to be struck down is the question for consideration in this writ petition., A husband who commits rape on his wife, as defined under Section 375 of the Indian Penal Code, cannot be charged with the said offence as long as the wife is over 15 years of age. It may be made clear that this Supreme Court of India is not going into the issue of marital rape of women aged 18 years and above and the discussion is limited only to wives aged 15 to 18 years. A man is guilty of rape if he commits any act mentioned in Section 375 of the Indian Penal Code without the consent of the woman if she is above 18 years of age. If a man commits any of the acts mentioned in Section 375 of the Indian Penal Code with a girl aged less than 18 years, then the act will amount to rape even if done with the consent of the victim. However, as per Exception 2 of Section 375 of the Indian Penal Code, if the man is married to the woman and the wife is aged more than 15 years, then the man cannot be held guilty of commission of the offence defined under Section 375, whether the wife consented to the sexual act or not., Section 375 of the Indian Penal Code creates three classes of victims: the first class are girls aged less than 18 years; in those cases, if the acts contemplated under Section 375 are committed with or without consent of the victim, the man committing such an act is guilty of rape. The second class are women aged 18 years or above; such women can consent to having consensual sex, and no offence is committed unless the consent is obtained in circumstances falling under clauses Thirdly, Fourthly and Fifthly of Section 375. The man can be held guilty of rape only if the sexual act is done in absence of legal and valid consent. The third category is married women; the Exception exempts a man from being charged and convicted under Section 375 for any of the acts contemplated under this section if the victim is his wife aged 15 years and above. To put it differently, under Section 375 a man cannot even have consensual sex with a girl if she is below the age of 18 years because the girl is by law deemed unable to give her consent. However, if the girl child is married and she is aged above 15 years, then such consent is presumed and there is no offence if the husband has sex with his wife who is above 15 years of age. If the wife is below 15, the husband would be guilty of such an offence., The issue is whether a girl below 18 years who is otherwise unable to give consent can be presumed to have consented to have sex with her husband for all times to come and whether such presumption in the case of a girl child is unconscionable and violative of Articles 14, 16 and 21 of the Constitution of India., Therefore, the principle is that normally the courts should raise a presumption in favour of the impugned law; however, if the law under challenge violates the fundamental rights of the citizens, the law is arbitrary, or is discriminatory, the courts can either hold the law to be totally unconstitutional and strike it down or read it down so that it does not violate the Constitution. While the courts must show restraint while dealing with such issues, the court cannot shut its eyes to violations of fundamental rights. Hence, if the legislature enacts a law that is violative of fundamental rights, is arbitrary and discriminatory, the court would be failing in its duty if it does not either strike down the law or read it down within the four corners of the Constitution., There can be no dispute that a law can be set aside if it is discriminatory. Some elements of discrimination have already been dealt with while dealing with the issue of arbitrariness. However, there are other aspects which make Exception 2 to Section 375 of the Indian Penal Code, insofar as it deals with the girl child, totally discriminatory. The law discriminates between a girl child aged less than 18 years who may be educated and have sexual intercourse with her consent and a girl child who may be married even before the age of 15 years, but whose marriage is consummated after 15 years against her consent. This is invidious discrimination writ large. The discrimination is between a consenting girl child, who is almost an adult, and a non‑consenting child bride. For example, if a girl aged 15 years is married off by her parents without her consent and the marriage is consummated against her consent, she cannot file a criminal case against her husband. The State talks of the reality of child marriages, but what about the reality of the rights of the girl child? Can this helpless, under‑privileged girl be deprived of her right to say yes or no to marriage? Can she be deprived of her right to say yes or no to having sex with her husband, even if she has consented to the marriage? In my view, the answer must be a resounding NO. While interpreting such a law, the interpretation that must be preferred is the one which protects the human rights of the child, protects the fundamental rights of the child, ensures the good health of the child, and does not excuse the practice merely because it has existed for a long time., The State is entitled and empowered to fix the age of consent. The State can make reasonable classification but must show that the classification has been made with the object of achieving a certain end and that there is a reasonable nexus with that object. In this case the justification given by the State is only that it does not want to punish those who consummate their marriage. The State's stand is that, keeping in view the sanctity attached to the institution of marriage, it has decided to make a provision in the nature of Exception 2 to Section 375 of the Indian Penal Code. This raises the question why the age has been fixed at 15 years and not 18 years. A girl can legally consent to have sex only after she attains the age of 18 years and can legally enter into marriage only after attaining the age of 18 years. When a girl gets married below the age of 18 years, the persons who contract such a marriage or abet it commit a criminal offence and are liable for punishment under the Protection of Children from Marriage Act. In view of this position there is no rationale for fixing the age at 15 years; this age has no nexus with the object of maintaining the sanctity of marriage because by law such a marriage is not legal. Even if the marriage is voidable and not void ab initio (except in the State of Karnataka), the fact remains that if the girl has married before the age of 18 years, she has the right to get her marriage annulled. Irrespective of the right to annul, a criminal offence has been committed and, besides the girl child, all other persons including her husband and those who facilitated the marriage are guilty of a criminal act. When the State has legislated that abetting child marriage is a criminal offence, it cannot on the other hand defend this classification of girls below 18 years on the ground of sanctity of marriage because such classification has no nexus with the object sought to be achieved. Therefore, Exception 2 insofar as it relates to girls below 18 years is discriminatory and violative of Article 14 of the Constitution., One more ground for holding that Exception 2 to Section 375 of the Indian Penal Code is discriminatory is that this is the only provision in various penal laws which gives immunity to the husband. The husband is not immune from prosecution for other offences. If the husband beats a girl child and has forcible sexual intercourse with her, he may be charged under Sections 323, 324, 325 of the Indian Penal Code, etc., but he cannot be charged with rape. This creates an anomalous situation where the husband can be charged with lesser offences but not with the more serious offence of rape. Sexual crimes against women are covered by Sections 354, 354‑A, 354‑B, 354‑C, 354‑D of the Indian Penal Code, which relate respectively to assault or use of criminal force with intent to outrage modesty, sexual harassment, assault with intent to disrobe, voyeurism and stalking. There is no exception clause giving immunity to the husband for such offences. The Domestic Violence Act also applies and the husband does not get immunity. The husband is not given immunity in any other penal provision except in Exception 2 to Section 375 of the Indian Penal Code. It does not stand to reason that only for the offence of rape the husband should be granted such immunity, especially where the victim wife is aged below 18 years, i.e., below the legal age of marriage and not legally capable of giving consent. Exception 2 to Section 375 of the Indian Penal Code is therefore discriminatory and violative of Article 14 of the Constitution of India., The discrimination is absolutely patent and, therefore, in my view, Exception 2, insofar as it relates to the girl child between 15 to 18 years, is not only arbitrary but also discriminatory against the girl child., Since this Supreme Court of India has not dealt with the wider issue of marital rape, Exception 2 to Section 375 of the Indian Penal Code should be read down to bring it within the four corners of law and make it consistent with the Constitution of India., In view of the above discussion, I am clearly of the opinion that Exception 2 to Section 375 of the Indian Penal Code insofar as it relates to a girl child below 18 years is liable to be struck down on the following grounds: (i) it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable, therefore violative of Articles 14, 15 and 21 of the Constitution of India; (ii) it is discriminatory and violative of Article 14 of the Constitution of India; and (iii) it is inconsistent with the provisions of the Protection of Children from Sexual Offences Act, which must prevail. Therefore, Exception 2 to Section 375 of the Indian Penal Code is read down as follows: Exception 2 – Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape. It is, however, made clear that this judgment will have prospective effect., At the cost of repetition, it is reiterated that nothing said in this judgment shall be taken to be an observation one way or the other with regard to the issue of marital rape., The Supreme Court of India has, times without number, ruled that judgments are not to be lightened to Euclidean theorems, and are to be understood and applied as precedents, keeping in view the controversy before the Supreme Court and the issue that was raised., In its judgment in Independent Thought, the Supreme Court of India went to the extent of cautioning and clarifying, not once but four times, that it was not dealing with the issue of marital rape, i.e., non‑consensual sex between adults who were married, and that the judgment was not to be treated as an expression of opinion on the said issue, even collaterally. Any attempt to treat the decision as an authority on the constitutionality of the impugned Exception, to the extent it applies to a marriage between adults, would be misguided and would amount to a conscious disregard of the cautionary words of the Supreme Court. I am not inclined, obviously, to agree with Mr. Gonsalves' submission that the Supreme Court could not have indicated the scope of its application. I am unaware of any legal principle that would support this extreme contention. Mr. Gonsalves has cited decisions where judgments contained a caveat that they were not to be construed as precedents. The extent to which one may rely on an earlier pronouncement by a superior court, where the pronouncement contains an omnibus caveat, is nuanced and, in my view, open to debate. Perhaps, if the facts of a particular case are identical to those in the precedent, a lower court may deem it advisable not to chart a course opposed to that charted by the Supreme Court. The caveat in Independent Thought is not that it is not to be treated as a precedent, but that the Supreme Court was not, in that decision, concerned with the constitutionality of the impugned Exception as it applied to a marriage between adults, and had not expressed any opinion, even collaterally, regarding that issue. The Supreme Court was, in fact, merely harmonising the stipulation of the age of the wife in the impugned Exception as 15 years and above with the main part of Section 375, as well as the provisions of the Protection of Children from Sexual Offences Act and the Protection of Children from Marriage Act, which envisaged the act to be an offence when committed with a woman of 18 years of age and below. This disharmony was remedied by the Supreme Court by reading down the impugned Exception., I am of the opinion, therefore, that learned counsel for the petitioners are completely unjustified in relying upon Independent Thought as a precedent for the issue in controversy before us, i.e., the constitutional validity of the impugned Exception as it stands today, i.e., as modified by Independent Thought., Independent Thought is not, however, without its share of truths, even insofar as the present case is concerned. For one, the Supreme Court of India has, in the following passages, expounded on the power of a court to interfere with a legislative provision, apropos its constitutionality: It is a well‑settled principle of law that when the constitutional validity of a law enacted by the legislature is under challenge and there is no challenge to legislative competence, the court will always raise a presumption of constitutionality of the legislation. The courts are reluctant to strike down laws as unconstitutional unless it is shown that the law clearly violates constitutional provisions or the fundamental rights of the citizens. The courts must show due deference to the legislative process. There can be no dispute with the proposition that courts must draw a presumption of constitutionality in favour of laws enacted by the legislature. In Sub‑Divisional Magistrate, Delhi v. Ram Kali, this Court observed that the presumption is always in favour of the constitutionality of an enactment, since it must be assumed that the legislature understands and correctly appreciates the needs of its own people, and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. The Court will interfere only when the statute clearly violates the rights of the citizens provided under Part III of the Constitution or where the Act is beyond legislative competence. The courts recognise that there is always a presumption in favour of the constitutionality of a statute and the onus to prove its invalidity lies on the party assailing it. In State of A.P. v. P. Laxmi Devi, the Court held that unless it becomes clear beyond reasonable doubt that the legislation transgresses the limits laid down by the Constitution, it must be allowed to stand as the true expression of the national will. If two views are possible, the one making the provision constitutional should be preferred. Where it is necessary to uphold the constitutionality of a statute, the court should construe its general words narrowly or widely as required. In Subramanian Swamy v. CBI, a Constitution Bench laid down that where there is a challenge to the constitutional validity of a law, the court must keep in view the presumption of constitutionality and that a clear transgression of constitutional principles must be shown. The fundamental nature and importance of the legislative process needs to be recognised and due deference accorded. Where legislation is challenged as being unconstitutional and violative of Article 14, the court must consider the two dimensions of Article 14: discrimination based on an impermissible classification and excessive delegation of powers. A legislation does not become unconstitutional merely because another view exists or another method may be considered more effective. The courts do not substitute their views on policy matters., These passages delineate authoritatively the scope of judicial review of legislative provisions. There is a presumption that legislation is constitutional. Though Puttaswamy seems to restrict the applicability of this principle in the case of pre‑Constitutional legislations, there is substance in Mr. Sai Deepak's contention that, where the validity and the need for continuance of the legislation have been debated on the floor of Parliament in the post‑Constitutional era, a vestige of constitutionality attaches to the legislation. It would therefore be for the challenger, challenging the validity of the provision, to establish positively that it is unconstitutional.
id_412	24	Further, the afore‑extracted passages from Independent Thought 1 confirm and clarify that Courts must show due deference to the legislative process, Courts should interfere only when the statute clearly violates the fundamental rights guaranteed by Part III of the Constitution of India, or where the provision is bad for want of legislative competence or for some similar ground, faced with a choice of interpreting the provision in a manner which would render it constitutional rather than unconstitutional, the Court must necessarily lean in favour of the former interpretation even if, for that purpose, the words have to be construed narrowly or widely, legislation does not become unconstitutional merely because an alternate view to the view expressed by the legislature in the legislation is possible, or because there is another, or more effective, remedy for the ill that the legislation seeks to address, and this would be applicable especially in cases of social or economic policy. Independent Thought 1 also holds, as learned Counsel for the petitioners have unexceptionably contended, that where a statutory provision is violative of fundamental rights of citizens, the Court would strike it down., To my mind, however, that need does not arise in the present case, as the impugned Exception does not violate any fundamental right guaranteed by Part III of the Constitution of India., Another significant takeaway from Independent Thought 1 is to be found in para 190 of the report, which reads thus: One of the doubts raised was if the High Court strikes down, partially or fully, Exception 2 to Section 375 of the Indian Penal Code, is the High Court creating a new offence. There can be no cavil of doubt that the courts cannot create an offence. However, there can be no manner of doubt that by partly striking down Section 375 of the Indian Penal Code, no new offence is being created. The offence already exists in the main part of Section 375 of the Indian Penal Code as well as in Sections 3 and 5 of the Protection of Children from Sexual Offences Act. What has been done is only to read down Exception 2 to Section 375 of the Indian Penal Code to bring it in consonance with the Constitution, and it is significant that the aforesaid extracted para 190 figures in the judgement in Independent Thought 1 after paras 161 to 168, in which the Supreme Court of India has endorsed the authority of the Court to strike down a legislative provision as unconstitutional if it violates any provision of Part III, or is legislatively incompetent, among other things., Even while, thus, affirming the power of a Court to strike down the statutory provision as unconstitutional for valid grounds, the Supreme Court of India, nonetheless, went on to enter a caveat to this proposition, by clarifying that there could be no cavil of doubt that the courts cannot create an offence. Having so clarified, the Supreme Court of India, applying the principle to the case before it, held that it was not creating an offence as the age of 18 for the woman already found place in the main part of Section 375, and was punishable under the PCMA as well as the Protection of Children from Sexual Offences Act, in the latter case as penetrative sexual assault which, held the Supreme Court of India, was merely another expression for rape. Inasmuch as it was merely harmonising the impugned Exception with other statutory provisions, failing which there would have been a disconnect among them, the Supreme Court of India held that it was not creating an offence and was not, thereby, transgressing the frontiers of its legitimate jurisdiction., To my mind, the proscription on Courts creating an offence by judicial fiat operates as a restraint even on the exercise of the power to strike down a legislative provision as unconstitutional. In other words, if a provision is found to be unconstitutional, the High Court may strike it down provided, by doing so, it is not creating an offence. If, by its judgement, the High Court creates an offence, there is an absolute proscription, even if the provision is otherwise unconstitutional. If this were not the legal position, there was no occasion at all for the Supreme Court of India, having held that a case for reading down the impugned Exception existed, to examine whether, by doing so, it was creating an offence., While the proscription on creation of an offence by judicial action is, in a way, a mere extrapolation of the principle that Courts cannot legislate, or take over the function of the legislature, the principle, even otherwise, accords with common sense, as well as the realities of the legislative process. Legislation is a complex exercise, especially where it involves designation of an act as an offence. Inasmuch as the decision would have nationwide repercussions, it cannot be undertaken by a body which is possessed neither of the wherewithal nor the resources to undertake it. Judges sitting in courts cannot, on the basis of arguments of Counsel, howsoever persuasive, create offences, or pass judgments which would result in an act, otherwise not an offence, being rendered an offence. The effect of designating an act as a criminal offence on all who may commit that act cannot be forgotten. For that reason, extensive consultation with all stakeholders, especially given the fact that India is a country of diverse cultures, religions, beliefs and social and societal realities, is absolutely necessary. We cannot undertake that exercise, and our oath does not authorise us to do so, either., Yet another reason why the High Court cannot create an offence is because a Court cannot legislatively stipulate the punishment for the offence. In the present case, for example, there is no stipulated punishment for an act of non‑consensual sex by a husband with his wife, as it does not amount to rape and, consequently, Section 376 of the Indian Penal Code would not apply to it. If the impugned Exception was to be struck down, we would make, ipso facto, the punishments envisaged by Section 376 applicable to such a husband, where the legislature never intended these punishments to apply to him. We would therefore be doing something which was never within the contemplation of the legislature, which may be even worse, jurisprudentially, than judicial legislation itself. If the High Court is not empowered to prescribe punishments, equally the High Court cannot, by its order, convert an act which, prior thereto, was not an offence, into an offence., To this, learned Counsel submit that the High Court should strike down the impugned Exception as unconstitutional and recommend, to the legislature, to consider modulating or reducing the punishments prescribed in Section 376 of the Indian Penal Code to cater to cases of non‑consensual sex within marriage which would, thereby, qualify as rape. To my mind, the suggestion bears rejection outright. That, in fact, is one of the reasons why Courts cannot, by judicial fiat, create offences. Creation of an offence would entail, in its wake, prescribing a punishment, and that, most definitively, the High Court cannot do. Equally, therefore, the High Court cannot strike down a provision where, by doing so, an offence would come into being, and leave the legislature to think of the appropriate punishment that would visit the offender. What happens to cases which come up in the interregnum?, But, assert learned Counsel for the petitioners, by striking down the impugned Exception, the High Court would not be creating an offence. They rely, for this purpose, on Independent Thought 1, in which it was held that the Supreme Court of India was not creating an offence by reading down the impugned Exception to apply to women below the age of 18., The analogy is between chalk and cheese. The situation that presents itself before us is not even remotely comparable to that which was before the Supreme Court of India in Independent Thought 1. We are not called upon to harmonise the impugned Exception with any other provision. The petitioners contend that the impugned Exception is outright unconstitutional and deserves to be guillotined. Would we not, by doing so, be creating a new offence?, The answer, in my opinion, has necessarily to be in the affirmative. Section 40 of the Indian Penal Code defines an offence as a thing made punishable by this Code. As things stand today, an act of non‑consensual sex by a husband with his wife is not rape. Were we to allow these petitions, it would thereafter be rape. As things stand today, if a wife lodges an FIR against her husband for having raped her, the husband need not contest the case that would result, or prove his innocence; he may straightaway seek recourse to Section 482 of the Criminal Procedure Code and seek that the FIR be quashed, for the simple reason that, even if the act alleged had been committed by him, it is statutorily not rape. Any allegation of rape by a husband of his wife is therefore anathema to the Indian Penal Code, and directly contrary to the impugned Exception. Were, however, we to agree with the petitioners, and strike down the impugned Exception, and thereafter, if a wife was to lodge an FIR against her husband for having raped her, Section 482 would ordinarily not be available to the husband, who would have to contest the trial and establish his innocence, as the act that he committed would, with the evisceration of the impugned Exception, become an offence of rape. We would therefore be designating the act of the husband vis‑vis his wife as rape, where earlier it was not., The contention of Ms Nundy that the High Court would not be creating an offence, but would be merely enlarging the class of offenders, is obviously fallacious. This contention is predicated on the premise that the specification, in the impugned Exception, excepting husbands vis‑vis their wives from the scope of an allegation of rape is something apart from the main Section 375. I am unable to agree. To my mind, as I have already observed earlier, every offence consists of four elements, i.e., the act, the perpetrator, the victim and the punishment. Offences may legitimately be made perpetrator‑specific or victim‑specific. In the present case, Section 375, read as a whole, makes the act of rape perpetrator‑specific, by excepting, from its scope, sexual acts by a husband with his wife. Though this stipulation finds its place in the impugned Exception, it might just as well have figured in the main part of Section 375. The legislature might just as well have worded Section 375 thus: “A man is said to commit rape if he, not being the husband of the woman, under the circumstances falling under any of the following seven descriptions…”. The specification of the identity of the man and his relationship vis‑vis the woman, which presently finds place in the impugned Exception, might therefore just as well have been part of the main provision, and I am not inclined to regard the placement of this stipulation in the impugned Exception as anything more than a device of legislative convenience. It does not detract from the fact that the stipulation contained in the impugned Exception is one of the ingredients of the offence of rape. Rape would not, therefore, under Section 375, apply to acts committed by a husband with his wife., Viewed thus, it is obvious that, by eviscerating the impugned Exception, the High Court would be altering altogether the stipulation regarding the perpetrator of the offence of rape, by covering all men thereunder, save and except those who would be entitled to the benefit of the first Exception in Section 375, which applies to medical procedures. This also follows from the fact, already noted hereinabove, that, by striking down the impugned Exception, the High Court would be denying to the husband the benefit of Section 482 of the Criminal Procedure Code which, as the statutory position stands today, is available to him in view of the impugned Exception., The submission of Ms Nundy and other learned Counsel is, in fact, essentially yet another fallout of their fundamentally fallacious premise that every act of non‑consensual sex by a man with a woman is, of necessity, rape. This erroneous premise is extrapolated to treating the impugned Exception as merely exempting a class of offenders from the rigour of Section 375. This, as I have held, is a clear misreading of the impugned Exception. The impugned Exception does not say that husbands would be exempted, or excepted, from being prosecuted for rape; it says, rather, that sexual acts between a husband and wife are not rape. The offence of rape, therefore, does not exist where the man and woman are married. Where there is no offence, there can, axiomatically, be no offender. The impugned Exception does not, therefore, exempt a category of offenders from the purview of Section 375 who, by eviscerating the Exception, we would be bringing within the four corners of the provision. Rather, by striking down the impugned Exception, we would be pronouncing that an act of non‑consensual sex between a husband and a wife is rape, where, as the statutory position stands now, it is not., If this does not amount to creation of an offence, I frankly fail to see what would., The submission that, were we to strike down the impugned Exception, we would not be creating an offence is therefore unequivocally rejected., As, by allowing the petitioners’ pleas, we would be creating an offence, I am of the opinion that, irrespective of and in addition to all other contentions advanced by the petitioner, and all other considerations that arise in this case, it is impossible for the High Court to grant the reliefs sought by the petitioners, as it would result in creation of an offence, which is completely proscribed in law., There may also be substance in the contention of learned Counsel for the respondents that, by striking down the impugned Exception, one may expose husbands to the rigour of Section 376(2)(f), which envisages rape by a relative, or a person in a position of trust or authority towards the woman, as aggravated rape, subject to a higher degree of punishment of rigorous imprisonment of not less than ten years, extendable to life. He may equally stand exposed to enhanced punishment under Section 376(2)(n), if there have been more than one instance of non‑consensual sexual intercourse with his wife., Learned counsel for the petitioners have not been able to satisfactorily meet the point. The submission of Ms Nundy that, applying the mischief rule of interpretation, the husband could escape Section 376(2)(f) would, in my view, be highly arguable, as there can be no gainsaying the fact that a husband is a relative of his wife, as well as a person in a position of trust towards his wife. Criminal statutes are, it is trite, to be strictly construed., Clearly, therefore, even in stipulating the punishments for rape in Section 376, the legislature consciously does not intend to extend its ambit to husbands vis‑vis their wives. The stipulated punishments have factored in the impugned Exception. Were we to strike down the impugned Exception, we would be doing precisely what the legislature forbore from doing. The resulting prejudice to public interest would be incalculable and immense., Another serious concern expressed by learned Counsel proposing the striking down of the impugned judgment is predicated on Section 114A of the Indian Evidence Act, 1872., It is sought to be contended that, if non‑consensual sex within marriage is to be treated as rape, it would become near impossible for the accused husband to establish lack of consent, and Section 114A of the Evidence Act would operate to ensure, in almost every case, a presumption as to absence of consent in certain prosecutions for rape. In a prosecution for rape under clause (a) or (b) or (c) or (d) or (e) or (g) of sub‑section (2) of Section 376 of the Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent., To my mind, the concern predicated on Section 114A of the Evidence Act is legitimate. Section 114A presumes lack of consent on the part of the prosecutrix in every case of prosecution for rape. If rape is to apply even to non‑consensual sex within marriage, and a wife is to allege lack of consent, it may conceivably become extremely difficult, if not impossible, for the husband to discharge the onus cast on him by Section 114A to prove existence of consent, as the act has taken place within the confines of the bedroom., I do not propose to express any final opinion on this aspect as it would be a matter for the concerned Court, seized with prosecution proceedings alleging marital rape (if the impugned Exception is ultimately to perish) to deliberate upon a case‑to‑case basis. Suffice it to state that the manner in which the effect of Section 114A, if non‑consensual sex within marriage is to be treated as rape, would operate, is a valid consideration and, if it has also weighed with the legislature in its decision not to remove the impugned Exception, the concern is legitimate. This would operate as yet another reason why the High Court cannot, in exercise of its jurisdiction under Article 226 of the Constitution of India, trump the legislative wisdom and strike down the impugned Exception., This also throws into sharp relief an extremely important aspect of the present controversy to which I am constrained to note no sufficient importance was attributed during the proceedings. An offence does not exist in isolation or in vacuo. A provision creating an offence carries with it its entrails and its viscerae. If, hypothetically, the legislature were, on the persuasion of the opponents of the impugned Exception, to do away with it, that would also necessitate, in its wake, other legislative changes. Quite possibly, the punishments provided in Section 376 may have to be duly modified in order to deal with the newly created offence of marital rape. Equally, changes may also be required to be incorporated in Section 114A of the Evidence Act. These are all imponderables. What is being sought of this Court is that, oblivious of all the other statutory changes which removal of the impugned Exception would necessarily entail, the Court should telescope its view merely to concentrate on the impugned exception and strike it down., In my view, this is not permissible. The High Court does not have the competence or the authority to envision or carry out all other concomitant legislative changes which removal of the impugned Exception would necessitate. This is yet another reason why, if a case for removal of the impugned Exception is to be pleaded, that has to be pleaded before the legislature which, if it is convinced with the plea, would not only remove the impugned Exception but would also deliberate on other resultant legislative changes which have to be undertaken. In my view, it would be a complete misadventure for the High Court to strike down the impugned Exception and, thereafter, leave it to the legislature to effect other necessary legislative amendments consequent to the verdict of the High Court, allowing a situation of chaos to prevail in the interregnum., Considerable reliance was placed, by learned Counsel for the petitioners, as well as by learned amici curiae, on the position in foreign jurisdictions, as well as on recommendations contained in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Insofar as the position existing in foreign jurisdictions is concerned, according to me, it is largely irrelevant to the issue at hand. We are concerned here with the issue of whether to strike down the impugned Exception as unconstitutional. That has to be decided on the basis of our Constitution, and the principles well enunciated by Courts, time and again, regarding constitutionality of statutes. It is obviously not open to us to strike down the impugned Exception as unconstitutional merely because similar provisions in other jurisdictions may not exist, or may have been outlawed, judicially or legislatively. Expressed otherwise, it is not open to any Court in India to strike down the legislative provision as unconstitutional merely so as to conform to what, according to the petitioners, may be the international sentiment. That is quite apart from the fact that the socio‑economic and ground realities that obtain in India, with its complex diversity of peoples and cultures, are not comparable with the situation that applies in other countries., Insofar as the recommendations in the 37th Session of the CEDAW in 2007 are concerned, they are merely recommendations. They do not bind even the legislature to legislate in accordance with the recommendations. Even otherwise, the cost of repetition, recommendations made by the CEDAW cannot constitute an additional ground to strike down a statutory provision as unconstitutional. Puttasamy 42 observers thus, in this regard (in para 103 of the report): In the view of the High Court, international law has to be construed as a part of domestic law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of constitutional guarantees must be illuminated by the content of international conventions to which India is a party. Puttasamy 42 further holds, in para 154 of the report, that where there is a contradiction between international law and a domestic statute, the High Court would give effect to the latter. Krishna Iyer, J., expressed the position pithily when he held, in Jolly George Varghese v. Bank of Cochin 136, that the positive commitment of the States parties ignites legislative action at home but does not automatically make the Covenant an enforceable part of the corpus juris of India. Where covenants in international conventions are in line with municipal law in India it is open to a Court to rely on international conventions to enforce municipal obligations. There is, however, no existing position in law envisaging the evisceration, by a Court, of a statutory provision on the ground that it is not in sync with the recommendations contained in international conventions. Any argument for altering the statutory scenario, predicated on recommendations in international conventions would, therefore, necessarily have to be made before the legislature, and cannot be urged as a ground to strike down a statutory provision as unconstitutional. Unconstitutionality would vitiate a statutory provision only if, either, it is beyond the competence of the legislature which has enacted it or infringes one or more of the fundamental rights enshrined in Part III of the Constitution., As, therefore, (i) the petitioners’ case is premised on a fundamentally erroneous postulate, for which there is no support available, either statutory or precedential, that every act of non‑consensual sex by any man with any woman is rape, (ii) the impugned Exception does not violate Article 14, but is based on an intelligible differentiation having a rational nexus with the object both of the impugned Exception as well as Section 375 itself, (iii) the impugned Exception does not violate Article 21, (iv) none of the indicia on which a statutory provision may be struck down as unconstitutional therefore can be said to exist, and (v) in such circumstances, the High Court cannot substitute its subjective value judgement for the view of the democratically elected legislature, I am of the considered opinion that the challenge by the petitioners to the constitutional validity of Exception 2 to Section 375 of the Indian Penal Code cannot sustain., The discussion hereinabove also answers the challenge by the petitioners to Section 376B of the Indian Penal Code and Section 198B of the Criminal Procedure Code., Section 376B of the Indian Penal Code is obviously predicated on the fact that, when separated, the demographics that otherwise apply to a subsisting and surviving marriage between the couple are absent. It is important to note that Section 376B does not characterise the act of non‑consensual sexual intercourse by the man with the woman, in such a situation, as rape. It treats it as a distinct and different offence altogether, with a different punishment stipulated for its commission. Where marital ties have severed, even if short of an actual divorce, then, absent consent, the husband has no reasonable conjugal expectation of sex with his wife. The unique indicia that apply to a healthy, subsisting and surviving marriage, therefore, have ceased to apply. This, again, is a situation which is qualitatively distinct from a situation of sex between strangers, as also from one of sex between a husband and wife who are cohabiting with one another. While, therefore, it cannot be equated with sex between strangers, it is nonetheless also not alike to sex between a couple who stay and cohabit together. An advisable middle path has therefore been carved out by the legislature to cater to such cases, and I see no reason to interfere with the dispensation. Of course, it would be for the High Court to see, in every case, as to whether the couple is, in fact, living separately. As the marriage is nonetheless subsisting, though the couple is not together, the legislature has chosen to prescribe a suitable lesser punishment for the offence. The exercise of legislative discretion is entirely in order, and, to my mind, the challenge to the vires of the provision has no legs whatsoever to stand on., Section 198B merely sets out the procedure to deal with complaints filed under Section 376B. No occasion therefore arises to strike down the provision., For all the above reasons, I am of the considered opinion that the petitions, as well as the challenges laid by the petitioners to the constitutional validity of Exception 2 to Section 375 and Section 376B of the Indian Penal Code, and Section 198B of the Criminal Procedure Code, have to fail., The petitions, therefore, in my view, deserve to be dismissed, albeit without costs., I concur with my esteemed brother in his decision to grant certificate of leave to appeal to the Supreme Court of India in the present matter as it involves substantial questions of law, of which the Supreme Court of India is presently in seisin.
id_413	0	Through Mr. Vipul Lamba, Advocate versus Through Ms. Meenakshi Dahiya, Assistant Public Prosecutor for the State with Warrant Officer/Station Inspector Vinod Kapoor, Police Station Delhi Cantt. This petition under Section 482 of the Criminal Procedure Code is for quashing FIR No. 275/2019 dated 30.10.2019 registered at Police Station Delhi Cantt for offences under Section 363, Section 366, Section 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act., A missing complainant was given by one Sukhlal, resident of Jhuggi No. A‑8, Kibri Palace, Delhi Cantt, stating that his daughter (victim/Petitioner No.2) who is 16 years of age is missing from home. He stated that he tried to find her but was unable to. He alleged that one Kundan, son of Ghanshyam (Petitioner No.1), aged 21 years, who used to reside nearby, had kidnapped his daughter. On this complaint FIR No. 275/2019 dated 30.10.2019 was registered at Police Station Delhi Cantt for offences under Section 363 of the Indian Penal Code., During the course of investigation the date of birth of the victim/Petitioner No.2 was found to be 28.12.2003. The victim was 16 years of age at the time of the incident. Petitioner No.1 was found to be 18 years of age at the time of the incident., On 10.08.2020 the mother of Petitioner No.1 handed over the victim/prosecutrix (Petitioner No.2) to police. Petitioner No.2 gave a statement to the police stating that she got married to Petitioner No.1 on 29.10.2019 in a temple at Mahua, Uttar Pradesh. However, she does not have any documents to prove their marriage. It was further stated by Petitioner No.2 that she was seven months pregnant. Counselling of the victim was done and her medical examination was conducted on 10.08.2020 vide Medical Legal Certificate No. 199/20 at Deen Dayal Upadhyay Hospital and the victim was sent to Normal Chaya shelter home., On the basis of the statement of the victim and her age proof, offences under Sections 366 and 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act were added. Victim's statement under Section 164 of the Criminal Procedure Code was recorded wherein she stated that she was frustrated with the taunts of her parents and therefore she went to the accused and they got married., Petitioner No.1 was arrested on 12.08.2020. He was granted regular bail vide order dated 26.08.2020 by the learned Assistant Sessions Judge, Fast Track Court, POCSO Act, Patiala House Court, New Delhi., On 02.09.2020 Petitioner No.1 and Petitioner No.2 performed a formal wedding reception in the presence of family and friends., The charge‑sheet was filed on 11.02.2022., Petitioner No.2 delivered a baby boy on 20.10.2020., Petitioner No.1 has now approached the Delhi High Court by filing the instant petition for quashing the aforesaid FIR on the ground that the complainant/respondent No.2 i.e. the father of the victim/petitioner No.2 has accepted the marriage of Petitioner No.1 and Petitioner No.2., The short question which arises, therefore, is whether the Delhi High Court should exercise its jurisdiction under Section 482 of the Criminal Procedure Code for quashing the FIR or not., Petitioner No.1 has married Petitioner No.2/Victim. There is a child out of wedlock. Petitioner No.1 is 21 years of age having his full life ahead of him. Petitioner No.2/Victim is only 18 years of age and is completely dependent on Petitioner No.1. Parents of both sides have accepted the marriage. This is not a case where Petitioner No.1 has established a physical relationship forcefully and against the will of Petitioner No.2 and fearing punishment has agreed to marry her after the filing of the FIR. In fact Petitioner No.2 in her statement under Section 164 of the Criminal Procedure Code has categorically stated that she is in love with Petitioner No.1 and since her parents objected to the marriage she decided to go to Petitioner No.1 and on her asking they got married on the very next day., It is well settled that Section 482 of the Criminal Procedure Code gives inherent powers to the High Court and the purpose of Section 482 is to prevent the abuse of the process of law and more particularly, to secure the ends of justice. The opening words of Section 482 \nothing in this Code\ shows that Section 482 is an overriding provision. These words indicate that none of the provisions of the Code limits or restricts the inherent powers of Section 482., The purpose of Section 482 is primarily to secure the ends of justice. In Gian Singh v. State of Punjab, (2012) 10 SCC 303, the Supreme Court has observed as under: \55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim ...\ (emphasis supplied)., Ordinarily the High Courts must show restraint in quashing FIRs for offences under Sections 376 of the Indian Penal Code and the Protection of Children from Sexual Offences Act. In the instant case the FIR was registered under Section 363 of the Indian Penal Code and Sections 366, 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act were added later. The victim/Petitioner No.2 has stated in her Section 164 statement that she was in love with Petitioner No.1 and she eloped with him of her own volition. It is stated they got married in a temple in Uttar Pradesh on the very next day and the victim has given birth to a baby boy. The families of the Petitioners No.1 and No.2 have accepted the marriage., Considering the fact that the whole life of Petitioner No.1 and Petitioner No.2 and their child would be ruined, the Delhi High Court asked the learned Assistant Public Prosecutor as to whether she has any objections if the Delhi High Court exercises its jurisdiction under Section 482 of the Criminal Procedure Code and quashes the FIR. The learned Assistant Public Prosecutor for the State, very fairly and taking a humanitarian approach, stated that she has no objections if the instant FIR is quashed., In view of the peculiar facts and circumstances of this case, the Delhi High Court is inclined to quash the FIR. Accordingly, FIR No. 275/2019 dated 30.10.2019 registered at Police Station Delhi Cantt for offences under Section 363, Section 366, Section 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act and the proceedings emanating therefrom are hereby quashed., Accordingly, the petition is disposed of along with any pending applications, if any.
id_414	0	Arising out of Special Leave Petition (Criminal) No. 5764 of 2023 Pradeep Rameshwar Sharma, Appellant(s) versus National Investigating Agency & Another, Respondent(s). Leave granted. The appellant is Accused No.10 in connection with NIA RC 01/2021/NIA/MUM (NIA Special Case No. 1090/2021) registered for the alleged offences punishable under Sections 120B, 201, 302, 364 and 403 of the Indian Penal Code, Section 25 of the Arms Act and Sections 16, 18 and 20 of the Unlawful Activities (Prevention) Act, 2004. In respect of the said proceedings the appellant, who was arrested on 17 June 2021, had filed an application under Section 439 of the Code of Criminal Procedure before the learned Special Court (National Investigating Agency), Greater Mumbai for grant of bail. The learned Judge, through the order dated 16 February 2022, rejected the prayer for bail., The appellant was before the High Court of Judicature at Bombay in Criminal Appeal No. 258 of 2022 assailing the order dated 16 February 2022 passed by the Special Court. The High Court, having adverted to the details of the contentions, dismissed the appeal holding that it is not a fit case to enlarge the appellant on bail. It is in that circumstance the appellant is before this Court in this appeal., Heard Shri Mukul Rohatgi and Shri Siddharth Dave, learned senior counsel for the appellant, Shri S.V. Raju, learned Additional Solicitor General for the respondents, and perused the appeal papers., The specific facts need not be brought out in detail and overburden this order as the High Court has referred to the allegations, more particularly with regard to the case of the prosecution sought to be made out against the appellant herein. Further, during the course of the arguments, the learned senior counsel for the appellant as also the learned Additional Solicitor General referred to the relevant portions of the order as also the material available on record. However, the details relevant for the limited purpose of consideration of the bail application are alone noticed., The case of the prosecution put forth is that the appellant, who is a retired police officer, in connivance with Sachin Waze, another senior police officer, had planted gelatin sticks in a Scorpio vehicle near the residence of a prominent businessman. Apart from referring to the role of Sachin Waze, who is alleged to have also conspired with Mansukh Hiren to park this Scorpio vehicle, the allegation is also that the appellant had a role with Sachin Waze in the murder of Mansukh Hiren. It is in that background that the charge as alleged is made against the appellant., In the backdrop of the allegation, the High Court, while taking note of the circumstance alleged to connect the appellant pertaining the offence wherein the gelatin sticks were laid in the Scorpio vehicle, prima facie arrived at the conclusion that it is a feeble attempt to connect the appellant with Sachin Waze, only when the court questioned the National Investigating Agency as to with whom Sachin Waze had conspired in planting gelatin sticks in the Scorpio vehicle. The High Court noted that the charge sheet does not prima facie disclose that the appellant was involved in the conspiracy of planting gelatin sticks in the Scorpio vehicle. Hence, after filing a detailed investigation report wherein the provisions of the Explosive Substances Act and Arms Act were not applied by the National Investigating Agency against the appellant, it was only during the course of the arguments that the prosecution was trying to link the appellant with the Scorpio vehicle laden with gelatin sticks. The observations made by the High Court indicate that, in the present facts, invoking the Unlawful Activities (Prevention) Act would pale into insignificance and the rigor of that law would not be applicable at this stage while considering the application of the appellant for bail., The further allegation against the appellant is with regard to his role in the murder of Mansukh Hiren. The circumstance as alleged against the appellant has been taken note of by the High Court in great detail as brought in paragraphs 7.14, 7.16, 7.19 and 7.22 of the order impugned. In that regard, much has been said about the role of Santosh Shelar (Accused No.6) and the appellant being in contact with each other and also with Sachin Waze. The role of Sachin Waze in bringing a bag containing money in his car to the P.S. Foundation Compound at Andheri on 03 March 2021 and handing it over to the appellant is also referred. It is alleged that P.S. Foundation, admittedly being run by the appellant, was the place wherein the bag containing money was given to the appellant for executing the murder of Mansukh Hiren. The sequence of events to connect such activities involving the appellant, Sachin Waze, and Santosh Shelar is referred to in great detail., Regarding the handing over of money, it has been explained on behalf of the appellant that the former Home Minister of Maharashtra had called Sachin Waze in the last week of February 2021 and had given him an ultimatum to collect an amount of Rs. 100 Crores from various sources and hand over the money within one week, which was expiring on 03 March 2021, failing which the threat of action against Sachin Waze had been held out. It is in that background that the meeting between the appellant and Sachin Waze, who were colleagues earlier, took place. The High Court has rightly indicated that the defence of such nature cannot be looked into at this stage and are matters of trial. Similarly, we have noted the circumstances alleged against the appellant to contend that he was complicit to the crime of murdering Mansukh Hiren. They are also matters of evidence which are to be established during the trial by connecting the chain of circumstances to prove the guilt of the appellant beyond reasonable doubt. However, for the present, having noted that the charge under the Unlawful Activities (Prevention) Act would pale into insignificance and even if the remaining charge based on circumstantial evidence is kept in view, the other circumstances which are relevant for grant of bail would be appropriate to be taken note of., The appellant was arrested on 17 June 2021 and has been in custody throughout, except for the brief period when this Court released him on interim bail to attend to the medical treatment of his wife. He has been interrogated and a charge sheet has been filed. Since more than 300 witnesses are to be examined and further investigation under Section 173(8) of the Code of Criminal Procedure is pending, a supplementary charge sheet would be filed, and the process will not conclude in the near future. As noted by the High Court, the charge sheet does not disclose that the appellant was involved in the conspiracy of planting gelatin sticks in the Scorpio vehicle. As per the charge, the appellant is stated to have conspired with Sachin Waze and others to eliminate Mansukh Hiren, which is a matter of circumstantial evidence to be proved by the prosecution., Though the High Court has arrived at the conclusion that the appellant, being a retired police officer, may interfere in the course of trial, in our opinion the fact that he retired after rendering thirty‑seven years of service is a factor which should weigh in favour of the appellant as he has strong roots in Mumbai and would be available to stand trial. The case is being prosecuted by a different agency—the National Investigating Agency. Apart from that, there is no adverse report about the conduct of the appellant while he was out on interim bail. He would also be aware that violating any of the conditions of bail would be detrimental to his own interest. It has also been urged before us that he has his mother, aged about 93 years, to care for, and his wife, who is not in good health, has to undergo a reversal of bariatric surgery. This aspect was taken note of by this Court for the grant of interim medical bail, and the operation could not be performed during the short period he was out on interim bail., Therefore, if all the above aspects are kept in view, we are of the opinion that, in the present facts, taking note of the role assigned to the appellant as also the circumstances stated to connect the appellant to the crime and also the fact that the charge sheet has already been filed, there would be no purpose in continuing the appellant in custody. We are therefore of the opinion that the appellant is to be released on bail subject to appropriate conditions being imposed by the trial court and the appellant diligently adhering to the said conditions and participating in the process of trial., In that view, the order dated 16 February 2022 passed by the Special Court (National Investigating Agency), Greater Mumbai and the order dated 23 January 2023 passed by the High Court in Criminal Appeal No. 258 of 2022 are set aside. It is directed that the appellant be released on bail. For the purpose of imposition of conditions and issue of a release order, the appellant shall be produced forthwith before the trial court., The appeal is accordingly allowed. Pending application, if any, shall stand disposed of. New Delhi, August 23, 2023., For judgment: (Arising out of impugned final judgment and order dated 23 January 2023 in Criminal Appeal No. 258 of 2022 passed by the High Court of Judicature at Bombay.) Date: 23-08-2023. This appeal was called on for pronouncement of judgment today. For Appellant(s): Mr. Mukul Rohatgi, Senior Advocate; Mr. Siddhartha Dave, Senior Advocate; Mr. Subhash Jadhav, Advocate; Mr. Nikhil Rohatgi, Advocate; Mr. Kumar Vaibhav, Advocate; Mr. Dilip Rawat, Advocate; Mr. Chandan Singh Shekhawat, Advocate; Mr. Anmol Kheta, Advocate; Mr. Mohd. Ashaab, Advocate; Ms. Devina Sehgal, AOR. For Respondent(s): Mr. K M Nataraj, Additional Solicitor General; Mr. Suryaprakash V. Raju, Additional Solicitor General; Mr. Annam Venkatesh, Advocate; Mr. Kanu Agarwal, Advocate; Mr. Rajat Nair, Advocate; Mr. Rajan Kumar Chourasia, Advocate; Ms. Chitrangda Rastaravara, Advocate; Mr. Siddharth Dharamadhikari, Advocate; Mr. Srikant Sonkawade, Advocate; Mr. Arvind Kumar Sharma, AOR; Mr. Aaditya Aniruddha Pande, AOR; Mr. Siddharth Dharmadhikari, Advocate; Mr. Bharat Bagla, Advocate; Mr. Sourav Singh, Advocate; Mr. Aditya Krishna, Advocate. Hon’ble Justice A.S. Bopanna has pronounced the non‑reportable judgment comprising His Lordship and Hon’ble Justice Pamidighantam Sri Narasimha. Leave granted. The order dated 16 February 2022 passed by the Special Court (National Investigating Agency), Greater Mumbai and the order dated 23 January 2023 passed by the High Court in Criminal Appeal No. 258 of 2022 are set aside. It is directed that the appellant be released on bail. For the purpose of imposition of conditions and issue of a release order, the appellant shall be produced forthwith before the trial court. The appeal is allowed in terms of signed non‑reportable judgment.
id_415	0	Through: Ms. Tara Narula, Ms. Nupur and Ms. Aparajita Sinha, Advocates versus Mr. Amit Prasad, Special Public Prosecutor for the State. The hearing was conducted through video conferencing. Criminal Miscellaneous Application No. 14 174-75/2020., Exemption was allowed, subject to all just exceptions. The applications stand disposed of. Criminal Miscellaneous Case No. 1979/2020 and Criminal Miscellaneous Application No. 14173/2020., This petition has been filed with the following prayers: Pass an order directing the transfer of the investigation in the case arising out of FIR No. 57/2020 dated 24 February 2020 registered at Police Station Dayalpur in the North‑East district of Delhi to another district or to an independent investigating agency for a free and fair inquiry; Pass an order directing re‑investigation or de novo investigation in the case arising out of FIR No. 57/2020 dated 24 February 2020 registered at Police Station Dayalpur and for such investigation to be monitored by this Hon'ble Court of India; Pass an order directing the Commissioner of Police to conduct a thorough departmental inquiry into the actions of the relevant officials posted at Police Station Dayalpur, take appropriate preventive action against the concerned officers, place the inquiry report before this Hon'ble Court of India, and provide a copy of the report to the petitioner., The facts of the case are given in the bail order dated 10 April 2020 in Bail Application No. 755/2020 and are not repeated for brevity., The learned counsel for the petitioner referred to paragraph 9 of the said order and stated that there is mystery surrounding the arrest of the applicants. It is submitted that the petitioners were picked up from Samrat Medical Store on 24 February 2020 and only when the applications were moved by their counsel before the learned Metropolitan Magistrate regarding their illegal detention, they were shown to have been arrested on 28 February 2020. An application to preserve the CCTV footage of Samrat Medical Store as well as of Police Station Dayalpur was declined, as was the request for a direction to the nodal officers of the mobile companies to produce the call records of the accused persons for the relevant period and to preserve the call data records., The learned counsel also referred to two medical reports/medical legal certificates, one prepared at the time of arrest on 28 February 2020 by the police and another dated 29 February 2020 when the petitioners were in jail, which show injuries on the back and other parts of the body. It is stated that Mr. Anurag Ghai, owner of the medical store, gave an affidavit that the petitioners were with him in the shop on 24 February 2020 and never participated in the riots. This evidence was not taken on record by the investigating agency; consequently, it is prayed that the investigation be handed over to an agency other than the police of Police Station Dayalpur., Notice issued. The learned Assistant Solicitor General accepts notice and seeks to file a status report. As directed, the status report answering all queries raised by the learned counsel for the petitioner shall be filed within two weeks from today with an advance copy to the learned counsel for the petitioner by email., List on 17 November 2020.
id_417	0	No. HHC/GAZ/14-52/74-VII- Dated Shimla, January 2021., In the interest of administration, the following transfers and postings of the members of the Himachal Pradesh Judicial Service in the cadres of District Judges, Additional District Judges and Civil Judges are hereby ordered with immediate effect: Sh. Parkash Chand Rana, Additional District and Sessions Judge, undergoing training in the Himachal Pradesh Judicial Academy, is posted as Additional District and Sessions Judge, Chamba. Sh. Harish Sharma, Additional District and Sessions Judge, undergoing training in the Himachal Pradesh Judicial Academy, is posted as Additional District and Sessions Judge‑I, Mandi. Sh. Pankaj Sharma, Additional District and Sessions Judge, undergoing training in the Himachal Pradesh Judicial Academy, is posted as Additional District and Sessions Judge‑II, Mandi. Sh. Vikas Gupta, Civil Judge cum Judicial Magistrate in Court, Baijnath, is transferred and posted as Civil Judge, ADR Centre, Shimla. Ms. Abha Chauhan, Civil Judge cum Judicial Magistrate in Court, Court No. IV, Shimla, is transferred and posted as Civil Judge cum Judicial Magistrate in Court, Court No. XI, Mandi. Ms. Pratibha Negi, Civil Judge cum Judicial Magistrate in Court, Court No. II, Mandi, is transferred and posted as Civil Judge cum Judicial Magistrate in Court, Court No. IV, Shimla. Ms. Isha Aggarwal, Civil Judge cum Judicial Magistrate in Court, Court No. VII, Shimla, is transferred and posted as Civil Judge cum Judicial Magistrate in Court, Court No. XI, Nurpur. Sh. Yudhveer Singh, Civil Judge cum Judicial Magistrate in Court, Court No. II, Nurpur, is transferred and posted as Civil Judge cum Judicial Magistrate in Court, Baijnath. Sh. Manu Prinja, Civil Judge, undergoing induction training, is transferred and posted as Civil Judge cum Judicial Magistrate, Court No. III, Ghumarwin. Sh. Sumit Thakur, Civil Judge, undergoing induction training, is transferred and posted as Civil Judge cum Judicial Magistrate, Court No. IV, Mandi. Sh. Som Dev, Civil Judge, undergoing induction training, is transferred and posted as Civil Judge cum Judicial Magistrate, Court No. II, Sarkaghat. Sh. Vikas Kapoor, Civil Judge, undergoing induction training, is transferred and posted as Civil Judge cum Judicial Magistrate, Court No. VIII, Shimla. Ms. Chunauti Sagroli, Civil Judge, undergoing induction training, is transferred and posted as Civil Judge cum Judicial Magistrate, Court No. IV, Una. Ms. Parveen Lata, Civil Judge, undergoing induction training, is posted as Civil Judge cum Judicial Magistrate, Court No. VIII, Shimla. Ms. Divya Sharma, Civil Judge, undergoing induction training, is transferred and posted as Civil Judge cum Judicial Magistrate, Court No. II, Kasauli, District Solan. Sh. Shavik Ghai, Civil Judge, undergoing induction training, is transferred and posted as Civil Judge cum Judicial Magistrate, Jubbal, District Shimla. Ms. Anulekha Tanwar, Civil Judge, undergoing induction training, is posted as Civil Judge, Leave Training Reserve in the High Court of Himachal Pradesh. Ms. Megha Sharma, Civil Judge, undergoing induction training, is posted as Civil Judge, Leave Training Reserve in the High Court of Himachal Pradesh. Ms. Sheetal Gupta, Civil Judge, undergoing induction training, is transferred and posted as Civil Judge cum Judicial Magistrate, Court No. II, Paonta Sahib. Ms. Ritu Sinha, Civil Judge, undergoing induction training, is posted as Civil Judge, Leave Training Reserve in the High Court of Himachal Pradesh., Officers numbered 6 and 7 are not entitled to travel allowance/daily allowance, as their order is dated 08‑01‑2021., The Principal Private Secretary to the Honourable Chief Justice, High Court of Himachal Pradesh, Shimla. The Secretaries to the Honourable Judges, High Court of Himachal Pradesh, Shimla. The Additional Chief Secretary (Home) and Principal Secretary (Personnel) to the Government of Himachal Pradesh. The Registrar General, Registrar (Vigilance), Secretary, Himachal Pradesh High Court Legal Services Committee, Registrar (Judicial), Registrar (Rules), District and Sessions Judge (Leave Training Reserve) and Central Project Coordinator, High Court of Himachal Pradesh, Shimla. The Law and Revenue Principal Secretary to the Government of Himachal Pradesh, Shimla. All District and Additional District and Sessions Judges, Senior Civil Judges, Secretaries of District Legal Services Authorities, Civil Judges and Mobile Traffic Magistrates in the State. The Registrar, Honourable Lokayukta, Himachal Pradesh, Shimla. All Presidents of District Consumer Fora, Shimla, Mandi, Kangra, Dharamshala and Una. The Presiding Officers of Labour Court/Industrial Tribunal, Shimla and Dharamshala, Himachal Pradesh. The Member Secretary / Administrative Officer, Himachal Pradesh State Legal Services Authority, Shimla. The Director, Joint Director and Deputy Director, Himachal Pradesh Judicial Academy, Shimla. The Chairman, Himachal Pradesh Waqf Tribunal, Kangra and Dharamshala. The Accountant General (Audit), Himachal Pradesh, Shimla. The Accountant General (Accounts and Expenditure), Shimla, Himachal Pradesh. All Deputy Commissioners and Superintendents of Police, Himachal Pradesh. The Special Secretary (Establishment) and all Additional Registrars, High Court of Himachal Pradesh. The Registrar (Accounts), High Court of Himachal Pradesh, Shimla. The Capital Treasury, Shimla, Chamba, District Treasury Offices/Branch Treasury, Una, Kasauli, Jubbal, Amb, Mandi, Shimla, Nurpur, Batara and Paonta Sahib, Himachal Pradesh. The Director of Estates, Himachal Pradesh, Shimla. Personal files of the above named officers are to be placed on the High Court website. The NIC Coordinator, High Court, is to upload the files today. The Section Officer (Computer) of this establishment is to ensure conversion of the same into digital form.
id_419	0	W.P.(C) No. 5319 of 2023 Vikash Kumar Dubey, Petitioner(s) versus The Jharkhand State Bar Council, Ranchi; Bar Council of India, New Delhi; Sarawan Kumar alias Shrawan Ram, Respondent(s). For the Petitioner(s): M/s. Sheo Kr. Singh & R.N. Chatterjee, Advocates. For the Bar Council: Ms. Neha Bhardwaj, Advocate. For Respondent No. 3: Mr. Rajesh Kumar, Advocate. For the Bar Council: Mr. R. Krishna, Chairman., 17 January 2024: The learned counsel for the parties were heard. The learned counsel for the Bar Council prayed for some time. The prayer for adjournment made by the learned counsel for the Bar Council was rejected, mainly on the ground that the Bar Council has initiated a disciplinary enquiry in respect of a complaint made by Respondent No. 3 against the petitioner, who is a practicing lawyer. The role of the Bar Council is limited; it should act as a neutral body and cannot take the side of any party. Therefore, it need not be heard on the merit of the case. The Bar Council can make a submission only if its jurisdiction is challenged., By filing this petition, the petitioner, who is a practicing lawyer at Palamau, Daltonganj, has challenged the initiation and continuation of disciplinary enquiry, Disciplinary Committee Enquiry No. 3/2023, initiated against the petitioner by the Jharkhand State Bar Council vide notice dated 26 August 2023., Counsel for the petitioner submits that the petitioner is a lawyer conducting matrimonial cases and other cases representing the wife of Respondent No. 3 against Respondent No. 3. The complaint has been filed to wreak vengeance and to preempt the petitioner from defending the wife of Respondent No. 3 in several court proceedings. The Bar Council, on a frivolous allegation not connected with the professional conduct of the petitioner, has entertained the same and initiated a disciplinary proceeding against the petitioner. The petitioner further submits that, even if the allegation were taken at face value, the aggrieved party would be the wife of Respondent No. 3, i.e., the client of the petitioner, but she has not made any complaint against the lawyer. Accordingly, the petitioner prays that this petition be allowed., Mr. Rajesh Kumar, learned counsel for the complainant, submits that the complaint, filed as per Chapter II, Part VI, Rule V of the Bar Council Rules, alleges serious misconduct by the petitioner, which requires initiation of a disciplinary proceeding. He contends that at the initial stage the proceeding cannot be stayed; the petitioner should appear before the Disciplinary Committee and make submissions, and only after an adverse order is passed should the High Court of Jharkhand entertain any application under Article 226 of the Constitution of India. He argues that the present application under Article 226 challenging the notice and initiation of the disciplinary enquiry is premature., The learned Chairman, Jharkhand State Bar Council, submits that the Council has jurisdiction to entertain the complaint., After hearing the parties, I am not entering into the question of jurisdiction of the Bar Council. Even for the sake of argument, if it is held that the Jharkhand State Bar Council has jurisdiction to entertain the complaint, then on the face of it I find merit for entertaining and allowing the writ petition., It is admitted that the petitioner is an advocate. A long‑standing matrimonial dispute is ongoing between Respondent No. 3 and his wife, involving a divorce case and a proceeding under Section 125 of the Criminal Procedure Code. The petitioner is the lawyer representing the wife before the Civil Courts. On this background, the present complaint has been lodged by Respondent No. 3 before the Jharkhand State Bar Council, praying to initiate a disciplinary proceeding against the petitioner on the ground of professional misconduct., The complaint, annexed as Annexure‑1 to this writ petition, states that after his marriage, a matrimonial dispute arose and the wife left his house. It is alleged that the petitioner and the complainant have developed an illicit relationship and have indulged in a physical relationship. Further, it is alleged that the petitioner is trying to extort money from the complainant and has threatened the complainant, stating that with the assistance of the petitioner, the lawyer, he could cause harm. The complainant alleges that he gave ten lakh rupees to save the lives of children and reported the matter before the Daltonganj Police Station, where Case No. 123 of 2022 was registered, a charge‑sheet was submitted, and cognizance was taken., The complaint makes clear that the relationship between the complainant and the petitioner is bitter and there are court cases between them. On this ground, the complainant approached the Jharkhand State Bar Council alleging immoral conduct of the petitioner along with the wife, and alleging extortion of money with the help of the petitioner., It is admitted that both the complainant and the petitioner are adults and the allegation of a physical relationship has been levelled by the husband, who does not have a good relationship with his wife. Surprisingly, the wife has not filed any complaint. If any sexual act or misconduct had been committed by the petitioner‑advocate, the wife would have been the only person to lodge a complaint. In this case, it is the husband, an adversary of the wife, who has lodged the complaint. There is no professional relationship between Respondent No. 3 (complainant) and the petitioner; the complainant has never lodged any complaint or shown any displeasure against the petitioner before any authority regarding any conduct, professional or otherwise., Regarding one criminal case initiated against Vikash Kumar Dubey, the petitioner, by Respondent No. 3, namely Complaint Case No. 299 of 2022, it is admitted that the summoning order dated 11 November 2022 was quashed by a Coordinated Bench of the High Court of Jharkhand exercising jurisdiction under Section 482 of the Criminal Procedure Code in Criminal Miscellaneous Petition No. 48099 of 2022. The case was filed by Respondent No. 3 alleging that the petitioner, the advocate, was harassing him mentally and physically and had committed robbery of valuable documents pertaining to land, educational certificates and bank deposits of Respondent No. 3. The Coordinated Bench held that the continuation of the criminal proceeding against the petitioner was a gross abuse of the process of the High Court of Jharkhand., Considering the totality of the matter, I find that the complaint before the Jharkhand State Bar Council has been filed by Respondent No. 3 with mala fide intent to wreak vengeance against a professional lawyer who was defending his client, the wife of the complainant. Respondent No. 3 has no locus to lodge the complaint before the Jharkhand State Bar Council, as there is no professional relationship between the petitioner and the complainant. This behaviour of Respondent No. 3 is absolutely deplorable., Considering the aforesaid facts, this writ petition is allowed. Consequently, Notice Reference No. 1688 of 2023 dated 26 August 2023 in Disciplinary Committee Enquiry No. 3/2023 is quashed. The complaint dated 5 September 2022 filed by Respondent No. 3, along with the entire proceeding started by the Disciplinary Committee of the Jharkhand State Bar Council against the petitioner, is also quashed.
id_421	0	The State of Maharashtra, through the Collector, Mumbai Suburban District, Mumbai, is the applicant. The matter is between Adarsh Water Parks and Resort Private Limited, the plaintiff, and the following defendants: Abdul Rashid Abdul Rehman Yusuf (deleted), Farooq Abdul Rashid Yusuf, Nishta Developers Private Limited (through its Director Rajesh H. Zaveri), Rajheer Megaprojects Private Limited (through its Director Rajesh H. Zaveri), Rajesh H. Zaveri, and Adil Y. Patel. The respondents are Union of India, Ministry of Defence, New Delhi; Union of India, Ministry of Railways, New Delhi; Union of India, through the Deputy Salt Commissioner, New Delhi; Municipal Corporation of Greater Mumbai; and Jolly Anil India Limited., By this interim application, the applicant State of Maharashtra seeks to quash and set aside a Consent Decree dated 28 October 2020, which was passed in terms of Consent Terms dated 26 October 2020. The applicant seeks relief including recalling the order and setting aside the decree on the ground that material facts were suppressed before the Bombay High Court and the Bombay High Court was misled. The land in question comprises Survey Numbers 1 to 279 in Village Kanjur, Taluka Kurla, Mumbai Suburban District, as set out in the schedule annexed as Exhibit‑10 to the interim application. The application was taken up for final disposal after being assigned to this court by an order of the Chief Justice dated 22 March 2022., The parties were heard at length. The applicant is the State of Maharashtra. The plaintiff is Adarsh Water Parks and Resort Private Limited. The defendants are six in number. Defendants 1 and 2 were the original defendants in the suit and were believed to be executors of a will dated 20 August 1960 of the late Sir Mohammed Yusuf Khot; Defendant 1 has since expired. Defendant 3, a private limited company, was directed to be impleaded by an order dated 3 April 2009 and the amendment was allowed on 2 November 2020. Defendants 4, 5 and 6 were added as party‑defendants by the order dated 28 October 2020. The respondents include the Ministry of Defence, Ministry of Railways and the Deputy Salt Commissioner, all represented by the Union of India, the Municipal Corporation of Greater Mumbai, and Jolly Anil India Limited., The interim application is filed by the Collector, Mumbai Suburban District, who is holding charge of the land in question and has duly authorized the Sub‑Divisional Officer. There is no contest to the authority of the applicant to file this application. The respondents, being the Ministry of Defence, Ministry of Railways and the Deputy Salt Commissioner, were impleaded because they also own land within Village Kanjur. Jolly Anil India Limited was impleaded as it has filed an interim application (No. 3028 of 2021) concerning land at Village Kanjur that is apparently granted on lease by the State Government., The learned Additional Government Pleader pointed out that pursuant to the Salsette Estates (Land Revenue Exemption, Abolition) Act, 1951 (the Salsette Act), the State is entitled to large plots of land. The Act provides that waste land not owned by the estate holder vests in the State. In 1953, Suit No. 481 of 1953 was filed by Mohammed Yusuf Khot against the erstwhile State of Bombay, seeking declaration of ownership of land at Village Kanjur, Taluka Salsette, based on certain documents. The suit was disposed when consent terms were filed on 19 June 1963, which identified vesting of land in the Central Government and part of the land in the plaintiff. An enquiry under Section 37(2) of the Bombay Land Revenue Code, 1879 was to be held for certain parts of the land described in Exhibit‑C of the consent terms., The applicant alleges that by the order dated 28 October 2020, the land owned by the State of Maharashtra was conveyed, sold and transferred by an agreement between the plaintiff and the defendants, as recorded in the consent terms, without joining the State as a party and without its consent. The learned Additional Government Pleader submitted that the consent decree was obtained by fraud played upon the Bombay High Court, as the consent terms directly affect the rights of the State and the Union of India with respect to the land at Village Kanjur., The Consent Decree dated 19 June 1963, in Suit 481, is annexed as Exhibit‑2 to the interim application. Exhibit‑A is a tabulated form setting out various plots with their description and survey numbers; Exhibit‑B sets out leasing of appropriated lands; Exhibit‑C lists the properties forming the subject matter of the consent terms with old and new survey numbers and total area. The applicant contends that lands belonging to the State are now described as part of the suit property and are sought to be conveyed under the consent terms dated 26 October 2020, without the State being impleaded or informed., Exhibit‑10 to the interim application lists the occupants of numerous plots covering an area of 686 hectares 54 roods belonging to the State Government, and an area of 92 hectares 36 roods belonging to the Central Government through Central Railway, Defence Department and Salt Department, as well as a small portion belonging to the Deputy Collector (P & V), Central Excise, Mumbai‑1. Additionally, the Mumbai Municipal Corporation has interest in approximately 13 hectares 26 roods. All of these lands are now sought to be conveyed by virtue of the consent terms and the consent decree passed on 28 October 2020., The plaintiff in Suit No. 396 of 2006 sought specific performance of an agreement dated 16 August 2005, read with powers of attorney dated 6 September 2005 and 15 November 2005, and alternatively a decree directing the two defendants to sell, transfer, convey and assign the lands described in Exhibit‑B to the plaint, or damages of Rs 100,20,00,000. Exhibit‑B shows that the property comprises pieces and parcels of plots in Village Kanjur, Revenue Village Kanjur, Taluka Kurla, comprising New Survey Numbers 1 to 279. The copy annexed does not disclose the original signature of the owner, Abdul Rashid Abdul Rehman Yusuf, nor the name of the directors whose presence was required for affixing the common seal, nor the date of the board meeting. The receipt clause indicates payment of Rs 11,00,000, but the signatures of the owner and witnesses are absent., The learned Additional Government Pleader relied upon several judgments, including: (i) Datta Ramji Koli and Others v. Abdul Rashid A.B. Yusuf and Others; (ii) Ram Chandra Singh v. Savitri Devi and Others; (iii) Horace Kevin Gonsalves v. Prabha Ganpat Borkar (Miss) and Others; (iv) Shilpa Dhanraj Kale v. Divisional Commissioner, Amravati and Others; (v) Bhaurao Dagdu Paralkar v. State of Maharashtra and Others; (vi) Shakuntala & Others v. Kamal Singh; (vii) Banwari Lal v. Chando Devi (Through LRs) and Others; (viii) S.V. Chandra Pandian and Others v. S.V. Sivalinga Nadar and Others; (ix) Himi (Smt.) D/o. Lachhmu (Smt.) and Others v. Hira Devi (Smt.) Widow of Budhu Ram and Others; (x) Hamza Haji v. State of Kerala and Others., The learned Additional Solicitor General, appearing for respondents 1, 2 and 3 (Ministry of Defence, Ministry of Railways and Deputy Salt Commissioner), relied upon three affidavits filed on behalf of the respondents. He submitted that the consent terms and the order are a fraud played upon the Bombay High Court, as the lands pertaining to the Union of India are being conveyed without disclosing the Union’s interest., The affidavit of the Defence Ministry, filed by Pooja P. Palicha, Defence Estates Officer, Mumbai Circle, states that the Ministry owns 251.344 acres of land in Village Kanjur, Hariyali and Tirandaj, which were requisitioned under the Requisitioned Land (Continuance of Power) Act, 1947, and acquired for the Naval Dockyard Housing Scheme. The acquisition was published in the Government Gazette (Part I) dated 14 October 1948 and gazetted in September 1948. The land is in the possession of the Ministry, as reflected in the Military Land Register, the Record of Rights, and a map showing the location of the housing colony., The affidavit of the Ministry of Railways, filed by Mohammed Afaque, Divisional Engineer (Land Management), Central Railway, Mumbai, dated 26 May 2022, claims ownership of 20.0204 hectares (approximately 2,00,204.40 square metres) of land in Village Kanjur, with the relevant survey numbers disclosed. The affidavit includes an extract of the Revenue Record and a plan of the property. The learned Additional Solicitor General contended that the Central Railway’s land is being usurped by the parties to the suit., The affidavit of the Deputy Salt Commissioner, filed by C. Raghu, dated 4 May 2022, asserts entitlement to approximately 1,521 acres comprising Survey No. 275 (pt), Old Survey Nos. 169 and 167 (New Survey No. 275 (pt.)), initially 52 acres reduced to 42 acres after transfers, and an additional 1,464 acres 25 gunthas plus 15 acres 34 gunthas, all within Village Kanjur. The claim is supported by notifications dated 22 December 1906, 22 December 1917 and 15 January 1920, copies of which are annexed to the affidavit., The Union of India departments were not parties to the suit at any stage and became aware of the order only upon service of the present interim application. There are inter‑se disputes between the State of Maharashtra and the Union of India concerning plots of land amounting to 102 acres in Survey No. 275 (pt.) in Village Kanjur. Three writ petitions are pending in this court, two filed by the Union of India (Writ Petition (Lodging) Nos. 3523 of 2020 and 5983 of 2020). An order dated 16 December 2020 granted interim protection restraining the Collector, Mumbai Suburban District, from transferring possession of the 102 acres to the Mumbai Metropolitan Region Development Authority., The learned Additional Solicitor General cited Supreme Court decisions in Budhia Swain and Others v. Gopinath Deb and Others, A.V. Papayya Sastry and Others v. Government of Andhra Pradesh and Others, and Meghmala and Others v. G. Narasimha Reddy and Others, supporting the proposition that a court may recall an order if the proceeding leading to it was obtained by fraud., On behalf of the Municipal Corporation of Greater Mumbai, Mr. Burhan Bukhari submitted an affidavit dated 10 June 2022, affirmed by P.U. Vaidya, Executive Engineer, Development Plan Department, MCGM, stating that lands measuring 11.55 hectares under various survey numbers are owned by the MCGM. The corporation had taken advance possession, as evidenced by a chart, property cards and possession receipts. The property card extracted from the State of Maharashtra’s Bhulekh website is enclosed, bearing a watermark indicating it is not for legal purpose., The plaintiff and the defendants opposed the interim application. Mr. Rishikesh Soni, on behalf of Defendant No. 3, argued that the Bombay High Court cannot recall or set aside the order under Order XXIII of the Code of Civil Procedure, 1908, nor exercise its inherent powers under Section 151, because there is no fraud. He contended that the consent terms are valid, were executed and signed by advocates, and were accepted by the court. He relied on the Supreme Court decision in Ram Prakash Agarwal and Others v. Gopi Krishan (Dead) and others, stating that absent fraud there is no jurisdiction to grant relief., Mr. Soni further cited several decisions, including Indian Bank v. Satyam Fibres (India) Private Limited, Smt. Suraj Kumari v. District Judge, Mirzapur and Others, Khalil Haji Bholumiya Salar and Others v. Parveen w/o. Sayyeduddin Razak and Others, Triloki Nath Singh v. Anirudh Singh (Dead) and Others, Chitralekha Builders & Others v. G.I.C. Employees Sonal Vihar Co‑op. Housing Society Ltd. & Others, Razia Sultana K. Ahmed v. Adarsh Water Parks & Resorts Pvt. Ltd. & Others, Golecha Housing and Infrastructure Pvt. Ltd., Nagpur v. Sanjay s/o. Mohan Rao and Others, R. Janakiammal v. S.K. Kumarasamy (Deceased) and Others, and K.K. Velusamy v. N. Palanisamy. He argued that the power under Section 151 must be exercised with circumspection and only when absolutely necessary, which he said is not the case here., On behalf of Defendant No. 2, Farooq Abdul Rashid Yusuf, Mr. Tamboly appeared via video conference and submitted that there is no occasion to grant any relief against the decree, as the consent terms were arrived at by mutual consent of the parties.
id_421	1	He has invited my attention to the averments of the applicant in paragraph 12 of the Interim Application and submitted that there is no question of any fraud being played on the State Government or on the Honourable Court. He submits that the State was not a party to the suit at all and in the absence of the State, there is no question of giving them notice. Title disputes are involved and the State must file a suit, if it so desires. He submits that the application itself reveals that there are title disputes as between State of Maharashtra and Union of India. He has relied upon the affidavit‑in‑reply filed on behalf of the second defendant dated 26th April 2022, who takes up the same issue of maintainability, as urged by Mr. Soni. Mr. Tamboly has submitted that in view of the rival claims for title, the applicant State of Maharashtra is a stranger to the consent terms and hence ought not to be heard in this interim application since, as between the parties, there is no locus of any fraud or misrepresentation. The State of Maharashtra must therefore file its own suit, if it so desires., Similar contentions are taken up by defendant no.6 by filing an affidavit dated 2nd May 2022. The limited opposition taken up by the said defendant is that the application is not maintainable under Order XXIII and/or Section 151 by a stranger and third party for want of locus. Thus, the disputes inter se between the State of Maharashtra and Union of India would also require a separate suit to be filed. Defendant nos.4 and 5 made no oral submissions. Defendant no.2 has filed an affidavit through the Advocate who had been appearing on several earlier dates. They are obviously aware of this application because, while perusing the execution clause of the consent terms, it is observed that one Zaveri (presumably defendant no.5) has signed for defendant no.3 as its partner and defendant no.4 as its director and those defendants have actively opposed. On behalf of the plaintiff, reliance is placed on an affidavit of Vinod Savla, Director of the plaintiff‑company, dated 25th April 2022. Mr. Raythattha, learned Advocate for the plaintiff, has adopted the submissions made on behalf of defendant nos.2 and 3., Having heard learned counsel for the parties at length, I am of the view that opposition to the application has no merit. All the defences and the oppositions to the present Interim Application speak in one voice, opposing maintainability of the application and the fact that the applicant and the respondents are required to file a separate suit. The record indicates that the consent decree was passed on 28th October 2020, during the pandemic. On a query from the High Court of Bombay, Mr. Raythattha and Ms. Dalvi state that the suit was circulated for hearing by a praecipe issued by the Advocate for defendant no.2 then on record, who had also filed the written statement on behalf of the defendant no.2 and who had appeared on 28th October 2020 through video conference. The copy of the order, which is annexed at Exhibit‑15 to the Interim Application, reveals that the plaintiff and all defendants were represented by counsel duly instructed Advocates. It does not record presence of any of the parties. Although there is an attempt to suggest across the bar that parties were present, the record does not indicate that any of the parties were present at the hearing. The order passed on that date reads thus:, 1. The draft amendment has been tendered to the High Court of Bombay adding certain parties as defendant nos.4, 5 and 6, as reflected in the draft amendment. The draft amendment is taken on record and marked X for identification. The amendment to the plaint shall be carried out in terms of the draft handed in, within a period of one week from today. Re‑verification is dispensed with. 2. The parties have informed this High Court of Bombay that the disputes in the present suit have been settled as reflected in the consent terms dated 26th October 2020. These consent terms have been signed on behalf of the plaintiff as well as by defendant nos.2 to 6 respectively. The consent terms have also been signed by their respective advocates. As far as defendant no.1 is concerned, his name has been deleted pursuant to an order passed by this High Court of Bombay on 21st June 2017 read with an order dated 13th August 2018. The advocates representing their respective clients have identified the signatures of their respective clients. They have also stated that the consent terms have been understood by the parties. 3. In these circumstances, the consent terms are taken on record and marked X‑1 for identification. The undertakings, if any, in the consent terms are accepted as undertakings given to the High Court of Bombay. The above suit is disposed of in terms of the consent terms. Refund of court fees, if any, as per rules. 4. This order shall be digitally signed by the Private Secretary/Personal Assistant of this High Court of Bombay. All concerned shall act on production by fax or e‑mail of a digitally signed copy of this order., It is seen from the contents of the aforesaid order that a draft amendment was tendered to the High Court of Bombay on that very day seeking to add defendants 4, 5 and 6. The draft amendment was taken on record and marked X for identification. The amendment was to be carried out within one week from that date and re‑verification was dispensed with. It is on that basis that the plaint on the record of this High Court of Bombay has since been amended on 3rd November 2020 impleading defendants 4, 5 and 6. The only averment incorporated in the plaint in relation to these defendants 4, 5 and 6 viz. paragraph 2A, is reproduced in paragraph 11 above., The High Court of Bombay has recorded the fact that the parties had informed the court that disputes have been settled, as reflected in the consent terms, and that the consent terms were signed by the plaintiff and on behalf of the said defendants 2 to 6; the first defendant having expired. The consent terms have been signed by the respective Advocates as well. The court took notice of the fact that the name of defendant no.1 had been deleted pursuant to an earlier order of 21st/22nd June 2017 read with the order dated 13th August 2018. The Advocates for the parties have identified their respective clients. The court had thus no reason to disbelieve the statements of counsel and Advocates as officers of the court especially considering the restricted functioning of courts., I also had occasion to peruse the draft amendment tendered in court. The draft amendment marked X for identification on 28th October 2020 is part of the record. It is not signed by any of the parties or their Advocates. Since it is not disputed that defendant no.2 has circulated the praecipe, at the hearing today, I called upon the Advocate for defendant no.2 to provide a copy of the praecipe seeking circulation of the matter and also as to how the draft amendment was tendered. On a query from the High Court of Bombay, Ms. Dalvi appearing on behalf of the second defendant fairly states that she is not aware as to how the draft amendment was tendered. I called upon the Advocate for the plaintiff to confirm the mode in which the draft amendment was tendered to court on 28th October 2020., A copy of the praecipe has meanwhile been produced before me by the learned Advocate for the plaintiff and that praecipe indicates that it is signed by Advocate for the plaintiff and defendants 2, 3, 4, 5 and 6. On behalf of the second defendant, Ms. Dalvi submits that this praecipe was not signed by her but was probably signed by an earlier Advocate on record, in whose place and stead she has now entered appearance. The record indicates that as on 28th October 2020, the Advocate on record for defendant no.2 was Mr. Jitendra J. Shah. The vakalatnama of the present Advocate Ms. Dalvi on behalf of the second defendant is on record since she entered appearance only on 18th December 2021, but the vakalatnama is dated September 2021. The body of the vakalatnama contains no date, however it contains an endorsement of no objection by one Jitendra J. Shah, Advocate. The docket of the vakalatnama indicates that the date of the vakalatnama is 17th September 2021, which is almost one year after the consent terms were tendered in court and an order was passed. The vakalatnama was under objections, which were complied and a filing order obtained on 18th December 2021. On behalf of the plaintiff though, the vakalatnama had been entered by the present Advocates on 14th February 2020 prior to the consent terms being filed., The record of the High Court of Bombay indicates that the registry received an e‑mail on Monday, the 26th October 2020 at 05:10 p.m. from the e‑mail id of an Advocate and the subject shown as Praecipe for circulation in Suit No.396 of 2006. It was marked to the e‑mail of the relevant court with a copy to one more e‑mail address. The email refers to the short title of the suit and sought circulation of the matter before the concerned court on day of October 2020 for filing consent terms. The e‑mail also contains a request to take on record the consent terms duly signed by the plaintiff and defendants in the aforesaid matter. It further stated as follows: “This joint praecipe is filed by all the Advocates for the parties. Yours truly, Advocates for all the parties. C.C. to all concerned.”, The praecipe is on the letterhead of Advocate Jitendra J. Shah, who had entered appearance for defendant no.2, and it is signed by the Advocates for the plaintiff, defendants 2, 3, 4, 5 and 6., On Wednesday, the 28th October 2020, at 01:13 p.m., a further e‑mail appears to be addressed from the same e‑mail address to the designated e‑mail id of the court. It is addressed by the then Advocate for defendant no.5, forwarding therewith a note of appearance in the matter. The contents of the e‑mail are as follows: “Be please to take on record the note of appearance in the caption matter which is on sr.no.7. Yours truly, Adv. Jayesh Patel for Defendant No.5.” The note of appearance was attached at 01:14 p.m. On the same day, a note of appearance is seen to be received by e‑mail from the Advocate for defendant no.2. Thus, two Advocates have shown to be appearing for defendant no.2 on that date. On the same day, defendant no.3 has also caused note of appearance to be filed vide email at 01:20 p.m., It is in this manner that the matter was brought before the High Court of Bombay and the court had no reason to suspect the nature of the settlement being entered into since all parties had apparently signed the consent terms. The parties to the consent terms were represented by the respective Advocates, who made a statement that the matter has been settled, which statement was accepted by the court. Considering the fact that nothing on record indicates that the parties were present, it is a normal practice in this court that when parties sign consent terms, their presence is recorded. The Associate verifies their authority. In the instant case, the plaintiff’s signatories were three in number; one person Mumtaz K. is named as Director of the plaintiff. Their identities are verified and their authority to execute the consent terms is also required to be provided. None of that was physically possible since parties were not permitted to attend court. This cast an immense responsibility upon the Advocates on record for the parties to ensure that their clients, who executed the consent terms, were duly empowered. Being on a virtual platform, it was the duty of the parties to ensure proper compliance. It is obvious from the notes of appearance that none of the parties were present and the court was made to believe that it was a bona fide settlement., It appears that the hard‑copy of the draft amendment has subsequently been tendered in court. It is on the record of this High Court of Bombay so also the original consent terms, marked as X‑1 for identification, are before this court. In paragraph 1(C) of the consent terms, as we have noticed, there is a clear admission that the parties were aware that a considerable portion of the property forming part of the suit property, in the language of the parties, was purportedly acquired by the government. There is no indication whether this refers to the State Government or to the Central Government. It is also noticed that the consent terms incorporate extensive powers akin to those found in a power of attorney granted in the matters of development of immovable properties. The powers granted run from page nos.450 to 461 to the Interim Application. All of these powers are granted in relation to the suit property. The consent terms thus seek to record a compromise as between the plaintiff, defendant no.2 – the original party to the suit, defendant no.3, subsequently added in 2009 but incorporated by amendment only in 2020, and three new parties – defendant nos.4, 5 and 6, who have come on record only on 28th October 2020 by virtue of the order of this High Court of Bombay., At the hearing of this Interim Application, I called upon the plaintiff and the defendants to indicate whether the original or even a copy of the signed and executed agreement dated 16th August 2005 is available, to which the attorneys state that it is not presently available with them. Be that as it may, the description on the property, as set out in the application by the State, matches with that of the copy in the plaint. The impugned consent terms, to which my attention has been invited, are dated 26th October 2020, as evident from the execution clause. The consent terms record that the parties have settled the matter. The parties to the consent terms were not only the plaintiffs and the original two defendants but also the newly added defendant no.3 and defendants 4, 5 and 6, added pursuant to the order dated 28th October 2020. The addition of the new defendants is based on the very order dated 28th October 2020 disposing the suit. The amendment is seen to have been carried out in the plaint on 3rd November 2020. However, apart from adding defendants 4, 5 and 6, there is a solitary averment concerning these defendants and that is to be found in paragraph 2A of the plaint. The averment supporting impleadment of defendants 4, 5 and 6 reads thus: “Defendant Nos.4, 5 & 6 have been joined as proper and necessary party as they are concerned with the suit property described in Exhibit‑A to the plaint.”, There is no other averment in the entire plaint disclosing what the interest of these parties was. Indeed, there is no written statement by these parties. The only written statement appearing on record is that of defendant no.2 dated 11th June 2015. Interestingly, as part of the record of this High Court of Bombay in the suit, there is an affidavit filed dated 11th January 2016, executed and affirmed by Dinesh Zaverchand Shah, Director of the plaintiff – Adarsh Water Parks seeking to withdraw the suit qua certain properties described in paragraph 2 of the said affidavit, but forming part of Village Kanjur, Taluka Kurla and stating that the plaintiff will continue to prosecute the suit in respect of the rest of the properties. The affidavit is supported by a copy of the Board Resolution held on 18th December 2015 signed by the director of the plaintiff. A reconstructed copy of another affidavit of the same director is also on record by this High Court of Bombay on 6th June 2016, and the record indicates that the file was reconstructed on 11th January 2016. It is filed on the record of this court on 13th June 2016. There is no mention of withdrawal of suit pertaining to part of the suit lands and which is said to have been excluded from the scope of the plaint in the consent terms., The record indicates that there is an affidavit of the plaintiff signed by Dinesh Z. Shah, Director of the plaintiff, seeking to withdraw the suit in relation to the plot of land bearing CTS No.893, admeasuring 374.4 sq.m., CTS No.893/1, admeasuring 14.2 sq.m., and CTS No.894, admeasuring 456.7 sq.m. of village Kanjur, Taluka Kurla situated at Bhandup (West), Mumbai 400078 and the plot of land bearing CTS No.797/B, Survey No.248, Hissa No.2, admeasuring 4,576.70 sq.m. of village Kanjur, Taluka Kurla situated at Bhandup (West), Mumbai 400078. The court, on 22nd March 2016, allowed the plaintiff to withdraw the suit in relation to the aforesaid two plots. Yet, the consent terms are silent on this aspect but merely refer to the suit property described in Annexure‑A to the consent terms. Annexure‑A refers to the consent terms arrived at in arbitration, which cover the entire land bearing Old Survey Nos.1 to 279. The portions in respect of which the suit is withdrawn have not been brought to the attention of the court in the consent terms filed on 28th October 2020. What is sought is to obtain the court’s imprimatur on the powers granted vide power of attorney itself inasmuch as the decree empowers the grantee of the powers under the consent terms., I also find that the plaintiff had in fact given up rights to certain portions of the land as part of a second application for withdrawal of the suit. That original application is also to be found on record, although an order of reconstruction had been passed. An order of reconstruction indicates that the plaintiff pursued that course of action and the record shows that the application was dealt with on 12th January 2016 and an order allowing the application was passed on 22nd March 2016., The record also indicates that on or about 16th May 2014, the Vacation Judge was moved to file consent terms, which were then taken on record in Chamber Summons No.276 of 2014 in the above suit. It records that the applicants, who seem to be individuals, undertook to pay Rs.42 lakhs to the plaintiff in relation to a part of the suit property admeasuring 645 sq.m., forming part of CTS 260 and 260/1 to 260/8, admeasuring 736 sq.m., and five other plots of land. An order of status‑quo dated 19th June 2008, which had been in operation, was vacated qua the said plots. These consent terms were also made an order of the court on 16th May 2014. Although the chamber summons sought to implead the applicants as party‑defendants, they were not added as parties in this suit because of the consent terms, and the chamber summons was disposed in terms of the consent terms without impleading the applicants. On receiving full payment, the plaintiff undertook to make the applicants or persons nominated by the applicants hold absolute title., Furthermore, considering the affidavits seeking withdrawal of the suits qua some parcels of land I find that the descriptions of plots in the reconstructed affidavit dated 11th January 2016 differ from those listed in the affidavit dated 21st March 2016. An order was already passed on the affidavit dated 21st March 2016 on 22nd March 2016; however, in the case of the reconstructed affidavit, when an application was made by the plaintiff to withdraw the suit in relation to the part of the property mentioned therein, defendant no.2 opposed the application. It was then observed that the two pending chamber summonses were yet to be disposed. The matter becomes murkier as on 14th December 2018, at the hearing of a Notice of Motion bearing No.2233 of 2018 in the above suit, this High Court of Bombay (per Justice G.S. Patel) observed that while the second defendant was seeking relief, the court found something unusual: the plaintiff was suddenly unrepresented, whereas on 13th August 2018 the plaintiff had been extremely well‑represented. The court observed that the dispute pertained to a very large portion of land in North East Mumbai and the entire village of Kanjur. The parties had been heard on the question of marking of documents and there were serious allegations of forgery and fabrication of title documents. Counsel for the second defendant contended that he had gained greater understanding of the true extent of forgery and fabrication. The court was surprised that the plaintiff was no longer represented by any Advocates. Only one director of the plaintiff was present in court, who stated that his Advocates had returned the papers a few days earlier. The plaintiff was granted some time. Meanwhile, the Prothonotary and Senior Master was directed not to part with documents and compilations in his custody., The order of status‑quo came in for consideration and the court found that defendant no.2 had contended that the plaintiff continued to transact with portions of the property despite an order of status‑quo. Justice Patel directed that no portion of the suit land shall be transacted by any party until the next date and all third parties were put on notice not to transact any documents where the plaintiff is shown as the vendor. The Collector, Tahsildar, Talathi and Superintendent of Land Records were directed not to take on record any documents purporting transfer of any of the suit property. The court restrained the plaintiffs from making any further transfers until further orders. The defendants were already under restraint orders, which were to continue. The motion was adjourned to January 2019. The matter appeared before the same court on 23rd January 2019, when counsel sought time for the Advocates who had then come on record for the plaintiff to take proper instructions and prepare. In July 2019, the matter was removed from the board of the learned Judge and could not be taken up. The motion remained pending as of July 2019. All of this was suppressed from the court when consent terms were circulated., The consent terms record that defendant no.2 has handed over the suit property to defendant no.4 on signing of the consent terms (clause 2(O)). Thus, the properties claimed by the State Government and by the Departments of the Union of India are sought to be handed over to defendant no.4. The amendment in the plaint contains no reference to any semblance of right that defendant no.4 has or how such rights were acquired. The amendment merely sets out that defendants 4, 5 and 6 have been joined as they are concerned with the suit property. Although this High Court of Bombay is not presently considering the merits of the claims of the respective parties, including certain arbitration proceedings between the plaintiff and defendant no.6, the consent terms are attached as annexure to Exhibit‑14 to the Interim Application. What is bizarre is that on behalf of the plaintiff, the consent terms are signed by one director and two ex‑directors. Names of these ex‑directors, who have executed the consent terms, also appear on record. One annexure is a photocopy of a certified extract of a resolution; the photocopy does not mention the ex‑directors’ involvement, yet their signatures have been identified by the Advocates. No explanation is given for their signatures on the original consent terms. The record does not indicate presence of any of these parties executing the consent terms. Those were the days of the pandemic when courts functioned with limited staff and access to justice was provided through video conference. The High Court of Bombay, which granted circulation and heard the matter, did not have the advantage of parties appearing before it. Considering all of the above, I am of the view that the parties to the consent terms have clearly played a huge fraud upon the court itself. The court was deprived of the benefit of knowing that the State Government, Defence Department, Salt Department, the Railways and the MCGM had ownership rights in a large area of land comprised in the suit property, which were handed over to defendant no.4, and making any further enquiry into the matter. The consent terms suppressed various factual aspects that have now been brought before the court by affidavits filed by the applicant – State of Maharashtra – and the respondent – Union of India – through the Ministry of Railways, Ministry of Defence and Deputy Salt Commissioner. The opposition is not on any factual basis but merely argues that there is no fraud played upon the court. I disagree., The manner in which the order was obtained smacks of suppression of true and vital facts, which, if disclosed, would have led the High Court of Bombay to reject the application. The plaint itself suppresses the true facts. Despite reference to possible claims by the government to a large extent of land, the consent terms do not disclose the nature of such intent. No attempt has been made to implead the government despite defendants 4, 5 and 6 being impleaded on the very same day when the consent terms were tendered and the order obtained; thus, suppressing from the court the true nature of any claim the government may have had. At the same time, defendants 4, 5 and 6 are said to be concerned with the land., In the course of his submissions, the learned Advocate General of the State has invited my attention to an oral judgment dated 30th August 1983 passed by this High Court of Bombay in Suit No.690 of 1972 filed by Datta Ramji Koli and others versus Abdul Rashid A.B. Yusuf and others, in which the plaintiffs, who are the sons and daughter of Ramji Koli, sought to set aside orders dated 8th May 1969, 14th October 1969 and 1st June 1971 passed by the Tahsildar, Deputy Collector and the Commissioner respectively. The suit also sought a declaration that the plaintiffs and defendant no.12 were owners of certain lands under Old Survey No.169 situated at Kanjur. The total extent of the land, as seen from the oral judgment, was about 1,668 acres 24 gunthas. The facts reveal that there was a Sale Deed dated 20th August 1862 between the plaintiff’s great‑grandfather Nama Koli and Dumin Soja Tandel, under which the plaintiffs claimed ownership of Survey No.169 admeasuring 1,668 acres and 24 gunthas before the Tahsildar. They were also claimed for some mortgagees in respect of this land. At the hearing of that suit, the plaintiffs gave up the claim against all 15 defendants except the third defendant, which is the State of Maharashtra. Some of the defendants against whom claims were given up, including defendants 12, 13 and 15, were related to the plaintiffs; one was a limited company. Consequently, the suit against all defendants except defendants 3, 12, 13 and 15 was dismissed for want of prosecution. After trial, the court found that the challenge to the order of the Tahsildar failed and, as a result, the challenges to the subsequent orders of the Deputy Collector and the Commissioner also failed. Consequently, the suit against the State of Maharashtra was dismissed and the lands in question were held to be waste lands vesting in the State Government. This crucial factual aspect has been suppressed by the parties in the present suit. None of these facts were before the High Court of Bombay when the consent decree was passed, and the consent decree covers this area of land under Old Survey No.169., In A.V. Papayya Sastry and Others versus Government of Andhra Pradesh and Others, the court observed that any judgment or order obtained by fraud cannot be said to be a judgment or order in law. Inviting my attention to the observations of the court, Mr. Singh submitted that fraud and justice never dwell together and that fraud is an act of deliberate deception with design to secure an unfair or undeserved benefit by taking undue advantage of another. Useful reference can also be made to the decision in S.P. Chengalvaraya Naidu versus Jagannath, in which the Supreme Court considered the doctrine of fraud in detail and the effect of a judgment obtained by fraud.
id_421	2	Supreme Court of India found that the High Court judgment, which had negated a trial court finding that a decree was obtained by playing fraud on the Dixit court and was a nullity, was set aside. Setting aside the judgment of the High Court, the Supreme Court of India observed as follows: A litigant who approaches the court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage over the other side, then he would be guilty of playing fraud on the court as well as on the opposite party., The court further observed as follows: The principle of finality of litigation cannot be pressed to the extent of such absurdity that it becomes an engine of fraud in the hands of dishonest litigants. Useful reference can also be made to the observations of the Supreme Court of India in the case of Indian Bank Vs. Satyam Fibres (India) Private Limited, which has been relied upon by Mr. Soni on behalf of defendant no.3. Yet again, in Meghmala and Others Vs. G. Narasimha Reddy and Others, the Supreme Court of India reiterated the settled proposition of law. When a party obtains an order by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of law. Fraud avoids judicial acts ecclesiastical and temporal. Meghmala also made reference to the ratio in numerous judgments which entail that dishonesty should not be permitted to bear fruit and benefit to the persons who played fraud or misrepresented facts to the court. The court ought not to perpetuate such a fraud. In the event I do not interfere in the present application and grant reliefs, in my view, it would amount to perpetuating the fraud, which is clearly impermissible., Meghmala, in paragraph 36, observes as under: From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality, the questions of non‑execution of the statutory remedies or statutory bars like the doctrine of res judicata are not attracted. Suppression of any material fact or document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non‑existent., In view of these judicial pronouncements, which have consistently held that fraud upon the court must meet with remedial orders and reversal of such orders, I have no hesitation in holding that in the instant case, perpetration of a fraud upon the court has been established beyond doubt. Mr. Soni had pressed into service various decisions cited above, many of which support the applicant inasmuch as the courts have held that if it is a fraud played upon the court, then the court could invoke its powers under Section 151 of the Code of Civil Procedure and intervene. Mr. Soni’s efforts were to prevail upon the court to hold that the fraud, if at all inter‑parties, would not enable the court to interfere. He has canvassed the proposition that since parties had no quarrel with the consent terms and the consent decree, there was no question of this court interfering. I am unable to agree., Relying on the aforesaid decisions, Mr. Soni has sought to impress upon the court that the distinction between fraud inter‑parties and fraud upon the court, if appreciated in the facts of the present case, would show that there was no case of fraud alleged by any of the parties to the consent decree and hence there is no question of any fraud being played upon the court by any of the parties. He therefore invited me to hold that no interference is called for in the application filed by the State. Mr. Soni submitted that if at all the State wishes to press its claims, it must file a separate suit. Notwithstanding the large number of cases cited to oppose the application, I am clearly of the view that if I conclude that there are elements of fraud played upon the court, the order dated 28 October 2020 will be rendered unsustainable and, considering the line of decisions cited by the learned Additional Government Pleader, the Additional Solicitor General and several decisions cited by Mr. Soni on behalf of defendant no.3, it becomes clear that this court is fully empowered to set aside the decree once I conclude that a fraud has been played upon the court., Defendants 4, 5 and 6 have been impleaded for no apparent reason. The only averment in support of their impleadment is that they are concerned with the suit property. No rights have been attributed to them. No claim to rights has been attributed to them in the plaint. It smacks of a collusive effort to seek a decree from this court, suppressing vital facts from this court, including the fact that part of the suit claim was given up. The fact that there was a decree dated 30 August 1983 vesting the waste lands to the extent of 1,668 acres in the State, stressing that the State and the Union had huge tracts of land to their name, structures standing thereon and full‑scale operations of the railways and naval establishments with housing colonies, all forming part of the suit lands, which are sought to be conveyed with only a whisper of disclosure in the affidavit to the effect that some lands are purportedly owned by the government. This indicates that the parties were aware that the government had claims to the land. Without disclosing the nature of these claims and probably in an effort to avoid allegations of suppression, a conveniently worded clause in terms of paragraph 1(C) has been incorporated. That cannot let the parties off the hook. They are guilty of suppressing vital and material facts from the court, as stated in the various affidavits filed on behalf of the State Government, the Municipal Corporation, the Department of Railways, Defence Estates and the Salt Commissioner. Huge tracts of land vest in those authorities and these aspects have been conveniently suppressed from the court in an attempt to snatch an order. They succeeded in doing so, in my view, on account of the restricted working conditions during the pandemic. The Supreme Court of India has thus been persuaded to pass the order based on a misrepresentation that nothing was amiss and that all parties had consented and had full authority to do so. The execution of the consent terms on behalf of the plaintiff by ex‑directors is one of the features which demonstrate that there was a predetermined fraud being played. This is an audacious attempt at misleading the court which believed the submissions made by advocates. The court was led to believe that all the parties were duly authorized to sign and that the parties had the rights to do so and deal with the property as contemplated under the consent decree. All along, the facts were suppressed. Assuming that the defendants were led to believe that the alienation sought to be recorded in the consent terms was accurate, it was for the defendants to have verified the facts including from the Record of Rights and the simplest of searches would have revealed multiple rights in favour of all these parties who have now come before the court, namely, the State Government and the Departments of the Union of India. Had the suit gone to trial, there would have been occasion for the court to consider all of these claims upon perusal of documents. That was effectively prevented by the parties approaching the court to file consent terms. The time when the court was approached is also material, probably taking advantage of the fact that the court would not have full assistance of the advocates before it and the staff to make detailed enquiries into all the records. The virtual platform has been abused and an order is snatched from the court. In my view, therefore, fraud on the court is established beyond the shadow of doubt and once I come to that conclusion, all oppositions on the basis that the applicant State of Maharashtra cannot approach the court under Section 151 read with Order XXIII Rule 3 of the Code fade away., Today, as we see, the interim application filed by the State of Maharashtra through the Collector and by various departments on behalf of the Union of India, being Ministry of Defence, Central Railway, Salt Commissioner, disclose factual aspects on the basis of which they claim ownership of a large expanse of land. It was the bounden duty of the parties plaintiff and defendants, defendant no.2 included, to have these facts brought before the court. Indeed, any settlement talks could not have proceeded without the parties being aware of these claims. Assuming in their favour ignorance of these claims, there is no explanation as to why when the consent terms disclosed that there are purported claims of the government, no search was taken of the Record of Rights. A property search could have been initiated in the Land Records office by these parties. These are not babes in the woods. Parties dealing with development rights would be well aware that extracts of the Land Records would disclose entitlement of parties’ claims to lands, which, as the learned Additional Solicitor General has disclosed, contained housing colonies, railway tracks and railway stations and large areas that are in the possession of the departments of the government., There are also separate interim applications filed by two other parties in this suit being Interim Application No. 3021 of 2021 and Interim Application No. 3028 of 2021. Those matters were heard at length and orders were reserved. Those were hotly contested applications. Considering the contest on similar grounds of non‑maintainability, those applications are pending disposal. Those applicants claim rights to smaller portions, claiming through the State of Maharashtra. One of these applications contains a claim to an area of land through the State Government and the second party claims directly from defendant no.2. Interim Application No. 3021 of 2021 is filed by Apex Constructions, claiming rights to certain properties forming part of the lands now sought to be conveyed directly from defendant no.2. It is apposite to mention that both of these applicants had filed chamber summonses seeking to be impleaded in the suit. One of those chamber summonses, filed by Apex Constructions, being Chamber Summons No. 881 of 2014, is said to have been dismissed on 21‑22 June 2017. The second chamber summons filed by Jolly Anil India Ltd., being Chamber Summons No. 1012 of 2014 was pending on the date when the consent decree was passed, namely, 28 October 2020. The fact of the chamber summons being pending was also suppressed from the court. Had this been brought to the notice of the court, it would have alerted the court to the fact that there were other claims and interim applications or chamber summons pending. It would have caused the court to make an enquiry into that aspect and the relevance, if any, of those applications before disposing the suit in terms of the consent terms. Given the obvious difficulties on the virtual platform, the court was prevailed upon to accept statements of the advocates that the matter has been settled as between them. There was a greater responsibility cast on the advocates appearing on the virtual platform at that stage to have disclosed all facts to the court in order to enable the court to assess correctness of the contents. However, for reasons difficult to fathom at this stage, the court was not apprised of the facts. Suppression of all these facts led the court to pass the order in question. Thus, undeniably, a fraud of huge proportions has been perpetrated on the court., In these circumstances, I am not in a position to accept any of the submissions of the plaintiff and defendants to the effect that this court is powerless to recall and set aside the order and the consent decree, which is a product of an audacious and blatant fraud committed by the plaintiff and the defendants. The newly added defendants have not disclosed any semblance of right. There is no material on record on the basis of which they could have made claim to any of these properties. The court was persuaded to accept the consent terms on representation of these parties. The records do not indicate presence of any of the parties who had executed the consent terms, as normally it would record the presence of the parties who sign the consent terms. All of these and certain change of advocates on behalf of the plaintiff and defendant no.2 are also indicative of the fact that there is more than meets the eye. One must also recall the development of 2016 and 2018 referred to above. I have no doubt in my mind that the fraud was indeed a fraud upon the court itself and in these circumstances, none of the judgments relied upon by the plaintiff and the defendants in support of their plea that the consent decree cannot be assailed by invoking the inherent powers of the court would come to their assistance. In these circumstances, the application must succeed. Accordingly, I pass the following order:\n\n(i) The order dated 28 October 2020 is hereby recalled and set aside.\n\n(ii) Consent Terms dated 26 October 2020, referred to in the aforesaid order dated 28 October 2020, are also quashed and set aside.\n\n(iii) Registry is directed not to issue any further certified copies of these consent terms and/or the order. In the event the registry has issued any certified copy of the order, no party shall act upon it.\n\n(iv) Registry to file a report on the number of certified copies of the order applied for, names of applicants and if any copies are issued or collected with the applicants’ names.\n\n(v) Registry shall preserve the entire record of all proceedings of the suit, including the notice of motion, chamber summons, interim application, consent terms and the entire log of e‑mails received in relation to this suit in safe custody of the Prothonotary and Senior Master till further orders.\n\n(vi) Interim Application No. 1575 of 2022 is made absolute in the above terms.\n\n(vii) In view of the above and having set aside the consent decree and the consent terms, Interim Application No. 3021 of 2021 filed by M/s Apex Constructions and Interim Application No. 3028 of 2021 filed by Jolly Anil India Ltd. are rendered infructuous and are accordingly disposed.\n\n(viii) It is made clear that this court has not examined the inter se claims between the State Government and the Union of India or the claims as between M/s Jolly Anil India, M/s Apex Constructions and the plaintiff or the defendants and/or the claims of the Municipal Corporation of Greater Bombay. Each of these parties is left to their own remedies through appropriate proceedings that they may wish to adopt.\n\n(ix) In view of clause 3 of the consent terms, the plaintiff and all defendants are directed to lodge with the Prothonotary and Senior Master the three remaining counterparts of the signed consent terms within one week of uploading the order.\n\n(x) Suit No. 396 of 2006, along with interim applications therein, is restored to file, to be listed before the appropriate court for directions on 22 August 2022., At this stage, Ms. Dalvi and Mr. Soni, learned counsel appearing on behalf of defendant nos.2 and 3, respectively, seek stay to the operation of the order. The request is declined.
id_424	0	Chanda Deepak Kochhar, aged 61 years, having address at 45, CCI Chambers, Churchgate, Mumbai 400020, petitioner/applicant, versus Central Bureau of Investigation, BS & FC, 3rd & 4th Floor, Bandra Kurla Complex (BKC), Near MTNL Exchange, Bandra (East), Mumbai 400098, respondent; Deepak Virendra Kochhar, aged 61 years, having address at 45, CCI Chambers, Churchgate, Mumbai 400020, petitioner/applicant, versus Central Bureau of Investigation, BS & FC, 3rd & 4th Floor, Bandra Kurla Complex (BKC), Near MTNL Exchange, Bandra (East), Mumbai 400098, respondent; Mr Amit Desai, Senior Advocate as well as Mr Gopalkrishna Shenoy, Mr Kushal Mor, Mr Rohan Dakshini, Ms Pooja Kothari, Ms Deepa Shetty, Mr Kyrus Modi, Mr Pranav Narsaria and Mr Tejas Popat in behalf of Rashmikant and Partners for the petitioners in WP/ST/22494/2022; Mr Vikram Choudhary, Senior Advocate as well as Mr Kushal Mor, Mr Rohan Dakshini, Ms Pooja Kothari, Ms Deepa Shetty, Mr Kyrus Modi, Mr Pranav Narsaria and Mr Tejas Popat in behalf of Rashmikant and Partners for the petitioners in WP/ST/22495/2022; Mr Raja Thakare, Special Public Prosecutor as well as Mr Kuldeep S. Patil, Ms Saili Dhuru, Mr Akash Kavade, Mr Siddharth Jagushte for Respondent No.1; Mr J. P. Yagnik, Additional Public Prosecutor for Respondent No.2. State ORDER (Per Justice Revati Mohite Dere, Bombay High Court):, By these petitions, preferred under Article 226 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, the petitioners, who are husband and wife, seek (i) quashing of the FIR, being No. RCBDI/2019/E/0001 dated 22.01.2019, registered under Sections 120B and 420 of the Indian Penal Code and Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act; (ii) quashing of their illegal arrest being violative of Sections 41 and 41-A of the Code of Criminal Procedure; and (iii) quashing of the remand orders dated 24.12.2022 and 26.12.2022 passed by the Special CBI Judge, Mumbai., By way of interim relief, the petitioners seek their release from custody pending the hearing and final disposal of the petitions., The petitions, as agreed between the parties, are heard only for the limited purpose of considering whether the arrest of the petitioners was illegal, i.e., contrary to the constitutional mandate and statutory provisions, and consequently, whether the petitioners are entitled to be released on interim bail., Mr Amit Desai, learned senior counsel appearing for the petitioner Chanda Kochhar submits (i) that respondent No.1 CBI has, with blatant disregard to the rule of law, illegally and arbitrarily arrested the petitioner in clear contravention of the constitutional mandate and the provisions of the Code of Criminal Procedure pertaining to arrest; (ii) that there was no occasion whatsoever to arrest the petitioner, inasmuch as the petitioner had cooperated with the CBI throughout, right from the time the Preliminary Enquiry was registered by the CBI till she was arrested, and the petitioner appeared before the CBI many times and submitted documents; (iii) that the petitioner had appeared before the Enforcement Directorate after the Enforcement Directorate registered offences under Sections 3 and 4 of the Prevention of Money Laundering Act on 31.01.2019 against her and others and that the petitioner had co‑operated with the investigation conducted by the Enforcement Directorate; (iv) that even in the adjudicating proceeding before the PMLA Authority, the petitioner had appeared and participated, and the Adjudicating Authority, after hearing the parties, lifted the provisional attachment order passed by the Enforcement Directorate, vide order dated 06.11.2020; (v) that throughout, i.e., right from the registration of the Preliminary Enquiry by respondent No.1, registration of FIR by the Enforcement Directorate, till date, it is the petitioner's case that she had no knowledge regarding her husband Deepak Kochhar's transactions; (vi) that respondent No.1 CBI by arresting the petitioner had contravened the constitutional mandate and statutory rights granted to the petitioner, and there has been a clear breach of the mandate of Sections 41 and 41-A of the Code of Criminal Procedure, as the reasons for arrest have not been spelt out in the arrest memo and arrest cannot be at the ipse dixit or at the whims of an officer; (vii) that the provisions of the Code of Criminal Procedure have not been complied with, as there was no lady officer, as mandated, at the time of her arrest, as is evident from the arrest memo., Learned senior counsel further submits that although a lady officer was present at the time of personal search of the petitioner, there is no endorsement that a lady officer was present at the time of the petitioner's arrest; (viii) that there is no previous approval as required under the Prevention of Corruption Act; (ix) that the remanding court had failed in its duty to consider that there was non‑compliance of Sections 41 and 41-A of the Code of Criminal Procedure and the ratio of the judgments of the Supreme Court of India on this aspect, in particular the judgments in Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. CBI, among others., The judgments relied upon include: (1) Satender Kumar Antil v. CBI; (2) Santosh v. State of Maharashtra; (3) Lalita Kumari v. Government of Uttar Pradesh; (4) D. K. Basu v. State of West Bengal; (5) Joginder Kumar v. State of Uttar Pradesh; (6) Mohd. Zubair v. State (NCT of Delhi); (7) Arnesh Kumar v. State of Bihar; (8) Arnab Manoranjan Goswami v. State of Maharashtra., Mr Choudhary, learned senior counsel appearing for the petitioner Deepak Kochhar, adopted the submissions canvassed by Mr Desai. He submitted that even in the petitioner's case there is non‑compliance of the mandate of Sections 41 and 41-A of the Code of Criminal Procedure. He also submitted that there was absolutely no justification for respondent No.1 CBI to arrest the petitioner, as he too had cooperated with the investigation, attended the CBI office whenever summoned, and submitted all documents sought. He relied on the judgments cited by Mr Desai., Mr Thakare, learned Special Public Prosecutor for respondent No.1 CBI, submitted that there was no infringement of either the constitutional mandate or the statutory requirement vis‑à‑vis the petitioners' arrests. He stated that the reasons for arrest were spelt out in the arrest memo, i.e., the petitioners were not cooperating and not disclosing true and full facts of the case. He argued that for proper investigation the petitioners' custody was necessary so that the accused could be confronted with each other, and that since the petitioners are now in judicial custody, they may file a regular bail application under Section 439 of the Code of Criminal Procedure., A few admitted facts as are necessary to decide the petitions are reproduced hereinunder: On 08.12.2017 a Preliminary Enquiry bearing No. PE.BD1/2017/E/0001 was registered by the CBI. On 06.09.2018 the petitioner Deepak Kochhar received summons from the CBI to appear on 11.09.2018 for enquiry in the Preliminary Enquiry. On 11.09.2018 the petitioner Deepak Kochhar attended the CBI office and was interrogated; he also attended the CBI office on two consecutive days in September 2018 and was questioned again. On 22.09.2018 and 23.09.2018 petitioner Chanda Kochhar attended the CBI office at New Delhi and was interrogated. On 22.01.2019 the CBI registered FIR No. RCBD12019E0001‑CBI/BS & FC/Delhi, inter alia against Chanda Kochhar and Deepak Kochhar under Sections 120B and 420 of the Indian Penal Code and Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act for alleged offences during the period 2009‑2012. On 31.01.2019 the Enforcement Directorate registered ECIR/02/HIU/2019 under Sections 3 and 4 of the Prevention of Money Laundering Act, alleging proceeds of crime of Rs. 1794 Crores., In 2019 petitioner Deepak Kochhar attended the CBI office on fifteen dates and on 08.05.2019, 14.06.2019, 20.06.2019, 05.07.2019 and 19.08.2019 submitted documents sought by respondent No.1 CBI (more than 2300 pages). The CBI seized documents submitted by petitioner Deepak Kochhar on 08.05.2019 (two seizure memos), on 20.06.2019 (two seizure memos) and on 19.08.2021 (one seizure memo). On 01.11.2019 petitioner Chanda Kochhar, suo moto, addressed an e‑mail to respondent No.1 CBI requesting a meeting to present true, correct and full facts of the matter; no response was received. During 2019‑2020 petitioner Chanda Kochhar was summoned by the Enforcement Directorate and appeared on 17.07.2019, 14.10.2020, 19.10.2020 and 22.10.2020, providing documents on several dates. Petitioner Deepak Kochhar attended the Enforcement Directorate office on 10.09.2020, 14.10.2020, 15.10.2020 and 16.10.2020, and provided extensive documents on multiple dates between March 2019 and November 2021., On 07.09.2020 petitioner Deepak Kochhar was arrested by the Enforcement Directorate; petitioner Chanda Kochhar was not arrested by the Enforcement Directorate during their investigation. On 20.11.2020 petitioner Chanda Kochhar approached the Supreme Court of India after the arrest of her husband. The learned Solicitor General of India made a statement before the Supreme Court in a writ petition filed by petitioner Chanda Kochhar that no coercive steps would be taken against her. On 12.02.2021 the Sessions Court granted bail to petitioner Chanda Kochhar under Section 88 of the Code of Criminal Procedure in the PMLA case, referring to the statement of the learned Solicitor General. On 25.03.2021 petitioner Deepak Kochhar was enlarged on bail by this Court (Coram: Prakash D. Naik, J.). On 10.01.2022 the Supreme Court dismissed the Enforcement Directorate's SLP and confirmed the order of bail. On 27.06.2022 petitioner Chanda Kochhar received a Section 41-A notice dated 27.06.2022 from the CBI directing her to appear on 04.07.2022; as she had a court case before the Bombay High Court on that date, she requested postponement to 08.07.2022, which was acceded to by the CBI. On 06.07.2022 petitioner Deepak Kochhar received a Section 41-A notice directing him to appear on 07.07.2022 and requested the investigating officer to be present on 08.07.2022., Both petitioners attended the CBI office on 08.07.2022, were interrogated briefly and allowed to leave. The next Section 41-A notice received by petitioner Chanda Kochhar was dated 15.12.2022, directing her to appear on 19.12.2022. As petitioner Deepak Kochhar had also been summoned and a part‑heard matter was being heard by the Division Bench of the Bombay High Court on that date, he requested accommodation. The CBI acceded and informed him that his wife could travel with him and appear before the CBI on 22.12.2022/23.12.2022. As the husband's matter was still continuing and a hearing was kept for 22.12.2022, a request was made to appear on 23.12.2022, which was acceded to. Accordingly, the petitioners remained present before the CBI on 23.12.2022 at 12 noon in New Delhi, were made to wait, and thereafter both were arrested. After the petitioners' arrest, they were remanded to CBI custody by the Special Judge vide orders dated 24.12.2022 and 26.12.2022. Presently both petitioners are in judicial custody., Apart from the aforesaid, it is a matter of record that pursuant to the registration of the offence by the Enforcement Directorate, the Enforcement Directorate provisionally attached various properties of NuPower Renewables Pvt. Ltd. and also the residential flat owned by petitioner Deepak Kochhar. On 03.02.2020 the Enforcement Directorate filed an original complaint before the Adjudicating Authority, PMLA, seeking confirmation of the provisional attachment order. Both petitioners, who were respondents in the complaint, filed their responses before the Adjudicating Authority on 10.09.2020. The Adjudicating Authority, vide order dated 06.11.2020, rejected the Enforcement Directorate's complaint and released the properties from attachment, holding that the properties were not proceeds of crime and were not involved in money laundering. The Enforcement Directorate has challenged the order before the Appellate Authority and the appeal is pending., The petitions were heard only with respect to the interim relief sought, i.e., interim bail, on the premise that the petitioners' arrest was illegal, being in contravention of the statutory provisions and the constitutional mandate., Relevant statutory provisions are reproduced below: Section 41 of the Code of Criminal Procedure provides that any police officer may, without a magistrate's order and without a warrant, arrest any person who (a) commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, if the police officer has reason to believe on the basis of such complaint, information or suspicion that such person has committed the offence and is satisfied that the arrest is necessary to prevent further offence, for proper investigation, to prevent evidence from disappearing or being tampered with, or to prevent inducement, threat or promise to a witness, or unless the person is arrested his presence in court cannot be ensured. The police officer shall record in writing the reasons for arrest. Section 41-A requires a notice of appearance before a police officer when arrest is not required under Section 41, and the person must comply with the notice; failure to comply may lead to arrest., Section 46 of the Code of Criminal Procedure states that in making an arrest the police officer shall actually touch or confine the body of the person unless there is a submission to custody by word or action, and that when a woman is to be arrested, her submission to custody shall be presumed unless circumstances indicate otherwise, and a female police officer shall not touch the woman unless required. Section 60-A provides that no arrest shall be made except in accordance with the provisions of the Code or any other law providing for arrest., The Supreme Court in Satender Kumar Antil has issued directions to investigating agencies and courts, discussing arrest in cognizable offences, the mandate of Section 41, effect of its non‑compliance while considering bail applications, and has held that Sections 41 and 41-A are facets of Article 21 of the Constitution. The Court observed that a police officer must record reasons in writing while making an arrest, and non‑compliance benefits the person suspected of the offence, entitling them to bail. Section 41A deals with the procedure for appearance before the police officer, and Section 41B deals with the procedure of arrest along with mandatory duty on the officer., The Court reiterated that Sections 41 and 41-A are facets of Article 21 of the Constitution and quoted Arnesh Kumar v. State of Bihar, emphasizing that arrest without satisfying the conditions of Section 41 is unlawful. The police officer must be satisfied that arrest is necessary for specific purposes and must record reasons in writing; the magistrate, before authorising detention, must be satisfied that the arrest complied with Section 41 and must record his satisfaction in writing., An accused arrested without warrant has the constitutional right under Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure to be produced before a magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding travel time. Before a magistrate authorises detention under Section 167 of the Code of Criminal Procedure, he must first be satisfied that the arrest was legal and that all constitutional rights of the person arrested are satisfied. If the arrest does not satisfy the requirements of Section 41, the magistrate is duty‑bound not to authorise further detention and must release the accused., The Court issued the following directions: (1) All State Governments shall instruct police officers not to automatically arrest when a case under Section 498‑A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters of Section 41; (2) Police officers shall be provided with a checklist containing the specified sub‑clauses under Section 41(1); (3) The police officer shall forward the completed checklist and furnish the reasons and materials which necessitated the arrest while producing the accused before the magistrate; (4) The magistrate, while authorising detention, shall peruse the police report and record his satisfaction before authorising detention; (5) The decision not to arrest an accused shall be forwarded to the magistrate within two weeks of the institution of the case, with possible extension by the Superintendent of Police for recorded reasons; (6) Notice of appearance under Section 41‑A shall be served on the accused within two weeks of the institution of the case, with possible extension by the Superintendent of Police for recorded reasons; (7) Failure to comply with these directions shall render the police officers liable for departmental action and contempt of court; (8) Authorising detention without recording reasons shall make the judicial magistrate liable for departmental action by the appropriate High Court; (9) These directions shall apply not only to cases under Section 498‑A IPC or Section 4 of the Dowry Prohibition Act but also to cases where the offence is punishable with imprisonment for a term less than seven years or extending to seven years, whether with or without fine.
id_424	1	We reiterate that the directions aforesaid must be complied with in letter and spirit by the investigating agencies and prosecuting agencies, while the view expressed by us on the non‑compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Supreme Court of India, which is expected to be reflected in the orders. Despite the dictum of the Supreme Court of India in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code of Criminal Procedure. The Supreme Court of India has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that, notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub‑clause (1)(b)(i) of Section 41 has to be read along with sub‑clause (ii) and therefore both the elements of reason to believe and satisfaction qua an arrest are mandated and accordingly are to be recorded by the police officer., We also expect the courts to come down heavily on officers effecting arrest without due compliance of Section 41 and Section 41A. We hope that the investigating agencies will keep in mind the law laid down in Arnesh Kumar (supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code of Criminal Procedure which warrants the officer concerned to make the arrest strictly in accordance with the Code., In conclusion, we issue certain directions meant for the investigating agencies and also for the courts. The investigating agencies and their officers are duty‑bound to comply with the mandate of Section 41 and Section 41A of the Code of Criminal Procedure and the directions issued by the Supreme Court of India in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. The courts will have to satisfy themselves on the compliance of Section 41 and Section 41A of the Code. Any non‑compliance would entitle the accused to a grant of bail., In Arnab Manoranjan Goswami v. State of Maharashtra, the Supreme Court of India in paragraph 67 held: Human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation. As such, the citizen is subject to the edicts of criminal law and procedure. Section 482 of the Code of Criminal Procedure recognises the inherent power of the High Court of India to make such orders as are necessary to give effect to the provisions of the Code or prevent abuse of the process of any court or otherwise to secure the ends of justice. Decisions of this court require the High Courts, in exercising the jurisdiction entrusted to them under Section 482, to act with circumspection. In emphasising that the High Court must exercise this power with a sense of restraint, the decisions are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies., The judgment further balances the public interest in ensuring the due investigation of crime with the need to protect personal liberty. It notes that the misuse of criminal law is a matter on which the High Court and the lower courts must be alive. In the present case, the High Court could not but have been cognisant of the specific ground raised by the appellant that he was being made a target as part of a series of occurrences since April 2020, because his opinions on his television channel were unpalatable to authority. The Court observed that failing to make even a prima facie evaluation of the FIR abdicated its constitutional duty as a protector of liberty., In Santosh v. State of Maharashtra, the Supreme Court of India in paragraph 6 observed that the Investigating Officer was of the view that custody of the appellant was required for recording his confessional statement under Section 161 of the Code of Criminal Procedure, 1973. The Court held that the purpose of custodial interrogation is not merely to obtain a confession and that the right against self‑incrimination is provided for in Article 20(3) of the Constitution. The Constitution Bench decision in Selvi and Others v. State of Karnataka (2010) 7 SCC 263 declares that Article 20(3) enjoys an \exalted status\ and is an essential safeguard against torture and coercive methods used by investigating authorities. Therefore, mere non‑confession cannot be taken as lack of cooperation, although lack of cooperation may justify cancellation of bail., In Joginder Kumar v. State of Uttar Pradesh, the Supreme Court of India in paragraph 20 listed circumstances justifying arrest during investigation of a cognisable case: (i) the case involves a grave offence such as murder, dacoity, robbery, rape, etc.; (ii) the accused is likely to abscond; (iii) the accused is given to violent behaviour and is likely to commit further offences; (iv) the accused is a habitual offender. The Court directed that a police officer making an arrest should record the reasons in the case diary, clarifying conformity to the guidelines. The power to arrest is distinct from the justification for its exercise; an arrest must be justified, not made routinely on mere allegation., In Mohd. Zubair v. State (NCT of Delhi), the Supreme Court of India in paragraphs 28‑30 held that police officers must be satisfied, under Section 41(1)(b)(ii) of the Code of Criminal Procedure, that arrest is necessary to prevent further offence, for proper investigation, to prevent tampering with evidence, to prevent intimidation of witnesses, or when it is not possible to ensure the person's presence in court without arrest. The Court reiterated that police must apply their mind to the case and ensure the conditions in Section 41 are met before arrest, echoing the observations in Arnesh Kumar v. State of Bihar., It is evident from the foregoing judgments that arrest is not mandatory; the notice issued under Section 41A is to ensure that persons served with notice attend to answer certain queries relating to the case. An arrest can follow only when there is a reason to believe that the person has committed an offence and there is a necessity for arrest., Section 41(1)(b)(ii) enumerates the conditions for arrest: (a) to prevent the person from committing any further offence; (b) for proper investigation of the offence; (c) to prevent the person from causing evidence to disappear or tampering with it; (d) to prevent the person from making any inducement, threat or promise to any person acquainted with the facts so as to dissuade disclosure; (e) unless the person is arrested, his presence in court whenever required cannot be ensured. The police officer shall record the reasons for arrest in writing., It is incumbent upon the police not only to record reasons for arrest in writing, but also, where the police choose not to arrest, to record that decision. Courts must satisfy themselves that there is due compliance with Section 41 and Section 41A; failure to do so will entitle the person suspected of the offence to be released on bail., The short question that arises for consideration is whether the petitioners' arrest, being contrary to the mandate of Sections 41, 41A and 60A of the Code of Criminal Procedure, entitles them to be released on bail., The arrest memo of petitioner Chanda Kochhar reads as follows: Case No. RCBD1/2019/E/0001 dated 22.01.2019 (Videocon Case); Sections 120‑B r/w 420 IPC and Section 7 r/w Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988; Arrested on 23.12.2022 at 16:30 hrs by Dy. Superintendent of Police, Central Bureau of Investigation, Banking Securities Fraud Branch, New Delhi; Arrestee: Ms. Chanda Kochhar, W/o Shri Deepak Kochhar, 45 CCI Chambers, Church Road, Mumbai (DOB 17.11.1961); Officer effecting arrest: Nitesh Kumar, Dy. Superintendent of Police, CBI; Ground of arrest: \The accused is an FIR named. She has not been cooperating and disclosing true and full facts of the case.\; Witnesses notified: Shri Pankaj Chauhan, Assistant Manager, Bank of Baroda, New Delhi; Shri Adiya Tomar, Officer, Punjab National Bank, Noida; Grounds of arrest explained to accused in vernacular; Persons notified about arrest: Shri Aditya Kaji, son‑in‑law of Shri Deepak Kochhar; No injury present on arrestee; Identification mark: mole on nose; Personal search carried out; Signature/thumb impression of arrestee obtained., The arrest memo of petitioner Deepak Kochhar is identical, with the ground of arrest stated as: \The accused is an FIR named. He has not been cooperating and disclosing true and full facts of the case.\, The above reason for arrest does not satisfy the mandate of Sections 41 and 41A of the Code of Criminal Procedure. The term \reason to believe\ requires a rational connection between material before the officer and the formation of belief, based on credible material and not on fanciful or whimsical grounds. Belief must be in good faith and not merely on suspicion., Section 41 of the Code of Criminal Procedure mandates the concerned officer to record his reasons in writing while making the arrest, and also to record the decision not to arrest where applicable. The Supreme Court of India, in Arnesh Kumar (supra) and Satender Kumar Antil (supra), has interpreted Sections 41(1)(b)(i) and (ii) together, requiring both elements—reason to believe and satisfaction for arrest—to be recorded. The Court has directed investigating agencies to check arbitrary arrests and warned that failure to comply will render the officer liable for departmental action and contempt of court. The magistrate authorising detention without recording reasons will also be liable for departmental action by the appropriate High Court., In Satender Kumar Antil (supra), paragraph 32, the Supreme Court of India reiterated that courts must come down heavily on officers effecting arrest without due compliance of Section 41 and Section 41A, and that discretion must be exercised on the touchstone of presumption of innocence with safeguards under Section 41. Paragraph 100.3 observed that the courts will have to satisfy themselves on compliance of Section 41 and Section 41A, and any non‑compliance would entitle the accused to a grant of bail., Thus, it is clear from the mandate of Section 41 of the Code of Criminal Procedure that for a cognisable offence an arrest is not mandatory. The onus lies with the officer who seeks to arrest. The officer must be satisfied that the person has committed a cognisable offence punishable with imprisonment for a term which may be less than seven years or may extend to that period, with or without fine, and that there is a necessity for arrest as spelled out in Section 41(1)(b)(ii) a‑e., In the present case, the arrest memo merely states that \the accused is an FIR named. She/He has not been cooperating and disclosing true and full facts of the case,\ which prima facie appears contrary to the facts on record. No specific grounds as mandated by Section 41(1)(b)(ii) a‑e have been noted. The reason of non‑cooperation cannot be a ground for arrest, as the right against self‑incrimination under Article 20(3) of the Constitution enjoys an exalted status, affirmed in Selvi v. State of Karnataka., The Supreme Court of India has repeatedly reiterated the role of courts in protecting personal liberty and ensuring that investigations are not used as a tool of harassment. In the facts, the petitioners, after registration of the preliminary enquiry in December 2017, reported to the CBI, appeared before it, and submitted documents. No summons were issued between 2019 and June 2022. On 08.07.2022 the petitioners reported to the CBI pursuant to a notice under Section 41A, and again a Section 41A notice was issued in December 2022, after which they were arrested on 23.12.2022. The reason for arrest after four years is not spelt out in the arrest memos as mandated by Section 41(1)(b)(ii). The ground recorded appears casual, mechanical and perfunctory, clearly without application of mind, and is in breach of the mandatory provisions of Sections 41, 41A and the directions of the Supreme Court of India in Arnesh Kumar and Satender Kumar Antil., As a Constitutional Court, we cannot be oblivious to the contravention of mandatory provisions of law and the judgments of the Supreme Court of India, particularly the directions in Arnesh Kumar (supra) and Satender Kumar Antil (supra). It is expected that the directions and provisions be complied with by the concerned officers and courts in letter and spirit. Personal liberty is a fundamental aspect of our constitutional mandate; merely because an arrest is lawful does not mandate that it must be made. The distinction between the existence of power to arrest and the justification for its exercise must be observed, and routine arrests can cause incalculable harm to reputation and self‑esteem. The presumption of innocence is a facet of Article 21 and enures to the benefit of an accused., The reasons recorded by the officer in the ground of arrest do not satisfy the tests laid down in Section 41(1)(b)(ii) a‑e of the Code of Criminal Procedure. They also contravene the directions given by the Supreme Court of India in Arnesh Kumar, paragraph 11.2 and 11.3, which require a checklist containing specified sub‑clauses and the police officer to forward the checklist duly filled, furnishing the reasons and material which necessitated the arrest while producing the accused before the magistrate for further detention., Accordingly, we hold that the petitioners' arrest is not in accordance with law. Non‑compliance with the mandate of Section 41(1)(b)(ii), Section 41A and Section 60A of the Code of Criminal Procedure will entitle the petitioners to release on bail. The learned Special Judge has overlooked the mandate of law as well as the dicta laid down by the Supreme Court of India in Arnesh Kumar (supra) and Satender Kumar Antil (supra). It is incumbent on the judicial officer authorising detention under Section 167 of the Code of Criminal Procedure to first be satisfied that the arrest made is legal and in accordance with law and that all constitutional rights of the person arrested are satisfied. If the arrest does not satisfy the requirements of Section 41 of the Code of Criminal Procedure, the concerned court is duty‑bound not to authorise further detention and to release the accused forthwith., The concerned judge authorising detention ought to have recorded his own satisfaction, however brief, and that satisfaction must be reflected in his order. A perusal of the order shows it does not conform to the requirements and directions given by the Supreme Court of India. We note that we have not gone into other submissions advanced by senior counsel for the petitioner, including the submission that a lady officer was not present at the time of the petitioner Chanda Kochhar's arrest.
id_424	2	For the reasons set out hereinabove, the petitioners are entitled to be released on bail, pending the hearing and final disposal of the aforesaid petitions, on the following terms and conditions: The petitioners Chanda Kochhar and Deepak Kochhar be released on cash bail in the sum of Rupees 1,00,000 each, for a period of two weeks; The petitioners shall within the said period of two weeks furnish a Personal Recognizance Bond in the sum of Rupees 1,00,000 each, with one or more sureties in the like amount, to the satisfaction of the Special Court; The petitioners shall co‑operate in the investigation conducted by the Respondent Number 1 Central Bureau of Investigation and shall attend the Office of the Respondent Number 1 Central Bureau of Investigation as and when summoned; The petitioners shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case., Writ petitions and interim applications be listed on 06.02.2023., All concerned to act on the authenticated copy of this order.
id_425	0	Raj M. Ahuja and Jain M. Ahuja, Petitioners, versus the Municipal Corporation of Greater Mumbai through the Municipal Commissioner and the Executive Engineer (Building Proposals), Municipal Corporation of Greater Mumbai, Respondents. M/s. Mangal Buildhome Private Limited, Petitioner, versus the State of Maharashtra and others, Respondents. Mr. Ashish Kamat, Senior Advocate, with Mr. Mayur Khandeparkar, Ms. Pooja Kane‑Kshirsagar, Mr. Jitendra Jain, Mr. Laxman Jain, Rohit Bamne, i/b. Yogesh Adhia, for Petitioners in Writ Petition (WP) 5130/22; Mr. Mayur Khandeparkar, a/w Mr. Rajesh Sharma, Ms. Tehashree Paraz, i/b. Rajesh Sharma & Associates, for Petitioner in WP 8486/2022; Mr. Amarendra Mishra for Respondents Nos. 3 to 9 in WP 5130/22; Mr. S. K. Pise with Shahin K. Sayed for Applicant in IAL/1929/2023 and 1323/2023 and for Respondents Nos. 7 and 9 in WP 8486/2022; Mr. Sukanta Karmakar, Additional Government Pleader for Respondent No. 1 State in WP 8486/2022; Mr. A. Y. Sakhare, Senior Advocate, a/w Ms. Vandana Mahadik for Municipal Corporation for Greater Mumbai in WP 8486/2022; Mr. Dharmesh Vyas with Ms. Vandana Mahadik for Municipal Corporation for Greater Mumbai in WP 8486/2022. The judgment was reserved on 15 March 2023 and pronounced on the same date., These are petitions under Article 226 of the Constitution of India, concerning redevelopment or construction of new buildings. The existing buildings were demolished after being declared dilapidated and dangerous, and were facing action for demolition under Section 354 of the Mumbai Municipal Corporation Act, 1888 (hereinafter the MMC Act)., A short question of contemporary importance that arises for determination in these petitions is whether the Municipal Corporation for Greater Mumbai (hereinafter MCGM) would be justified in imposing a condition that the owner or landlord who intends to undertake redevelopment of a demolished building must obtain the 100 percent consent of all the erstwhile tenants or occupants, by submitting to the MCGM permanent alternate accommodation agreements executed with all the tenants, as a condition for issuance of a Commencement Certificate (CC), as mandated by Clause 1.15 of the Guidelines issued by the MCGM for declaring private and municipal buildings as C‑1 category (Dangerous, Unsafe) (hereinafter the 2018 Guidelines) and a similar consequential condition in the Intimation of Disapproval (IOD)., For convenience, we refer to the facts in the first petition (Raj M. Ahuja & Anr. versus the Municipal Corporation of Greater Mumbai & others)., The petitioners are owners of land bearing Survey No. 113 (part) and Survey No. 114 (part) and CTS No. 89/A, 89/A 1 to 13 of Village Pahadi Eksar, Taluka Goregaon, situated at Jay Prakash Nagar Road No. 2, Goregaon (East), Mumbai. There was an existing building on such land, having a ground floor plus one upper floor known as Madhu Estate, which housed 39 industrial units. There were 17 tenants on the ground floor. Respondents Nos. 3 to 9 are some of the tenants out of the 17 tenants., It is not in dispute that on 22 July 2017, the MCGM issued a notice to the petitioners under Section 354 of the MMC Act. The Technical Advisory Committee of the MCGM inspected the petitioners' building and declared it dangerous, falling within C‑1 category. Consequently, the petitioners requested the occupants/tenants to vacate the building. On 26 December 2017, the MCGM prepared a list of tenants, occupants and owners occupying the units, along with the carpet area statement of each unit, which forms part of the MCGM record. After completing all formalities, the MCGM demolished the building in December 2017., Out of the 39 units, 22 units were on the first floor and were owned by the erstwhile owners of the building, some of which were let out on leave and licence to third parties. There is no dispute regarding any rights claimed by third parties in respect of those 22 units. The remaining 17 units on the ground floor were occupied by tenants. Of those 17 units, two tenants surrendered their rights in favour of the petitioners. An eviction decree has been passed against four tenants, the proceedings being sub‑judice before the Small Causes Court at Mumbai. In respect of five units the petitioners have entered into agreements or consent terms for permanent alternate accommodation. A suit for eviction has been filed by the petitioners against one tenant on the ground of sub‑letting, which is pending before the Small Causes Court. Suits have also been filed by the petitioners against tenants in respect of six units, which are pending before the Small Causes Court. Thus, only seven occupants (Respondents Nos. 3 to 9) are disputing occupants who are not ready to enter into a permanent alternate accommodation agreement (hereinafter PAAA). They are the non‑consenting members., The case of Respondents Nos. 3 to 9 is that they are entitled to permanent alternate accommodation only in an industrial building, which they contend would be in accordance with the guidelines laid down by a Division Bench of this Court in Writ Petition (L) No. 1135 of 2014 (finally numbered as Writ Petition No. 1080 of 2015). In short, these respondents are not consenting to the petitioners undertaking redevelopment unless the nature of the rights asserted by them are recognised by the petitioners. These respondents have also filed a civil suit before the City Civil Court at Mumbai on 4 September 2018 (Long Cause Suit No. 2601 of 2018), praying for: (a) a declaration that the plaintiffs are entitled to permanent alternate accommodation, free of cost, on the suit plot in accordance with the High Court guidelines in W.P. (L) 1135 of 2014; (b) a declaration that the reply notice dated 09/05/2018, addressed by Defendant Nos. 1 & 2’s advocate, disputing the plaintiffs’ rights for permanent alternate accommodation, is illegal, bad in law and contrary to the High Court guidelines; (c) a permanent injunction restraining Defendant Nos. 1 to 7 and their agents from any construction, development or redevelopment of the suit plot without the written consent of the plaintiffs; (d) a permanent injunction restraining Defendant No. 8 (the Corporation) from issuing any development or redevelopment permissions for the suit plot without the plaintiffs’ written consent; (e) a temporary injunction with the same effect as (c); (f) a temporary injunction restraining Defendant No. 8 from issuing any development or redevelopment permissions without the plaintiffs’ consent; (g) a direction to maintain the status‑quo in respect of the suit plot; (h) interim reliefs in terms of prayers (e), (f) and (g); and (i) costs of the suit., These respondents could not obtain any interim orders in the civil suit to restrain the petitioners and the MCGM from granting any Intimation of Disapproval or Commencement Certificate in favour of the petitioners., The petitioners contend that, being confronted with a situation where redevelopment by them involved construction of an industrial building on the said land, it was not economically viable under the prevailing Development Control and Promotion Regulations, 2034 (hereinafter DCPR‑2034). The DCPR‑2034 does not provide for utilisation of additional floor‑space index or admissible transfer of development rights in the industrial zone as per Regulation 30, Table 12. Consequently, it was not economically viable to construct one building for industrial use and another for residential use. The only viable method was to construct a single residential building, in which the erstwhile eligible occupants/tenants could be offered alternative residential accommodation of equal size on a tenancy basis, subject to the outcome of the eviction suits filed by the petitioners. The petitioners approached the MCGM for a change of zone from industrial to residential, which was granted on 21 April 2022. The petitioners also state that they have made provision for accommodating the non‑consenting tenants by reserving residential alternate accommodation in lieu of the units they occupied in the building to be constructed., In the above circumstances, the petitioners submitted redevelopment plans to the MCGM. On 16 June 2022, the MCGM issued an Intimation of Disapproval (IOD) with Condition No. 39 and Notes 20 and 21, which the petitioners object to. Condition 39 reads: “Existing structure proposed to be demolished shall not be demolished or necessary Phase Programme with agreement will not be submitted & got approved before Commencement Certificate.” Note 20 states that the IOD is given exclusively for the purpose of enabling the petitioner to obtain a No‑Objection Certificate from the Housing Commissioner under Section 13(h)(H) of the Maharashtra Rent Control Act, and that proceeding with work without an intimation under Section 347(1)(aa) or starting work without removing the structures proposed to be removed shall be a severe breach, leading to revocation of the sanction and withdrawal of the Commencement Certificate under Section 45 of the Maharashtra Regional and Town Planning Act, 1966. Note 21 provides that if demolition is proposed after negotiations with the tenant, work shall not be taken up unless the City Engineer is satisfied with: (i) specific plans for evicting or rehousing existing tenants, stating their numbers and areas; (ii) a specifically signed agreement between the petitioner and the existing tenants that they are willing to avail the alternative accommodation at standard rent; and (iii) plans showing the phased programme of construction approved by the office so as not to contravene the Development Control Rules regarding open spaces, light and ventilation., The petitioners state that after issuance of the IOD, although Respondents Nos. 3 to 9 were minority unit‑holders in the demolished building and did not consent to residential redevelopment, the petitioners offered them an equivalent area of residential accommodation. The respondents did not respond to the offer. The petitioners, by a letter dated 28 June 2022 addressed to the MCGM, requested issuance of a Commencement Certificate, pointing out that out of 32 unit‑holders (representing 82 percent of the unitholders/tenants and about 77 percent of the carpet area), were agreeable to accept the petitioners’ offer of alternate residential accommodation. The petitioners recorded that Respondents Nos. 3 to 9 were not agreeable to similar offers. The petitioners also recorded that a provision was made for accommodating these non‑consenting unit‑holders by reserving equivalent alternate accommodation in the proposed residential building. The petitioners forwarded to the MCGM a legal opinion dated 25 July 2022, stating that in view of the majority of occupants having consented, the MCGM was required to issue a Commencement Certificate without insisting on 100 percent tenant consent or permanent alternate accommodation agreements with all tenants. As there was no response to the petitioners’ request for issuance of the Commencement Certificate, the petitioners approached this Court by filing the present petition on 10 August 2022. The petitioners pray for: (a) a declaration that Clause 1.15 of the impugned Guidelines requiring consents from all tenants is illegal, bad in law and violative of Article 14 of the Constitution of India, and that it be struck down; (b) a writ of mandamus or any other writ directing Respondents Nos. 1 and 2 to treat the consents of the 32 unit‑holders as sufficient compliance with Condition No. 39 and Notes 20 and 21 of the IOD dated 16 June 2022; (c) pending final disposal, a direction to Respondents Nos. 1 and 2 to issue further permissions, including a Commencement Certificate, for redevelopment of the plot bearing CTS No. 89/A, 89/A 1 to 13 of Village Pahadi Eksar, Taluka Goregaon, measuring about 3,333.6 square yards (2,787.32 square metres); (d) pending final disposal, a mandatory interim order directing Respondents Nos. 1 and 2 not to insist upon consents from all tenants as a pre‑condition for granting development permissions including the Commencement Certificate; (e) interim reliefs in terms of prayers (c) and (d); (f) costs of the present petition; and (g) such further reliefs as this Hon'ble Court may deem appropriate., As seen from the petition, the primary grievance of the petitioner is Clause 1.15 of the 2018 Guidelines issued by the MCGM and the effect of such clause as incorporated in Condition 39 and Note 21(ii) of the IOD. The petitioners contend that the MCGM is interpreting these clauses to mean that the petitioner must have a permanent alternate accommodation agreement with 100 percent of the tenants before a Commencement Certificate can be issued., The petitioners argue that Clause 1.15 is arbitrary, unreasonable, impracticable, discriminatory and violative of Article 14 of the Constitution. They submit that it is not always conceivable that 100 percent of tenants will agree to the redevelopment, or that tenants may impose counter‑conditions or refuse to enter into a permanent alternate accommodation agreement. A pre‑condition requiring 100 percent tenant consent would allow a minority of tenants to stall the project, causing prejudice to other occupants, owners and stakeholders. Accordingly, the petitioners seek to have the clause held to be arbitrary and illegal., On behalf of the MCGM, the impugned conditions are justified on the ground that the Corporation must safeguard the interests of the tenants. This is particularly in view of the interim orders dated 23 June 2014 passed by a Division Bench of the Bombay High Court in Municipal Corporation for Greater Mumbai versus State of Maharashtra & others, wherein, in the absence of policy guidelines, the Court formulated guidelines that are now incorporated in the 2018 Guidelines. The MCGM submits that since Respondents Nos. 3 to 9 have not consented and no permanent alternate accommodation agreement has been entered with them, the Corporation was justified in not issuing a Commencement Certificate., On the above conspectus, we have heard learned counsel for the parties and perused the record. Condition 39 of the IOD and Conditions 20 and 21(ii) of the Notes, as well as Clause 1.15 of the 2018 Guidelines, are impugned by the petitioners. A plain reading shows that the zonal building proposal department must include in the IOD a condition that unless and until an agreement providing permanent alternate accommodation or a settlement is arrived at between the tenants or occupiers and the landlord, no Commencement Certificate will be issued under Section 45 of the Maharashtra Regional and Town Planning Act, 1966. Thus, the MCGM requires consent of 100 percent of tenants to be submitted by the owner/landlord or developer for eligibility to obtain a Commencement Certificate., The basis of the MCGM’s stance is the interim order dated 23 June 2014 passed by a Division Bench of the Bombay High Court in Municipal Corporation for Greater Mumbai versus State of Maharashtra & others (Writ Petition (L) No. 1135 of 2014). In those proceedings, the MCGM sought guidelines for the removal of occupants of dilapidated and dangerous buildings. The Court observed that the rights of tenants, occupiers and owners would not be affected by evacuation or demolition carried out under Section 354 of the MMC Act, and that any such action should not affect the inter‑se rights of owners. The Court further directed that, in case privately owned buildings are demolished, the Corporation shall, while granting sanction for redevelopment, impose a condition in the IOD that no Commencement Certificate will be issued unless an agreement providing permanent alternate accommodation or a settlement is filed with the Corporation., The 2018 Guidelines were issued under the interim orders dated 23 June 2014. The guidelines were approved by the Municipal Commissioner and are binding on the Municipal Corporation for Greater Mumbai. The Court observed that, with the policy guidelines placed on record, it was no longer necessary to continue the interim order of 23 June 2014, and that the Municipal Commissioner must follow its own policy guidelines when exercising powers under Section 354 of the MMC Act., The Court further noted that the policy, as amended on 23 February 2018, lays down an elaborate procedure to be followed before issuing a notice under Section 354 of the MMC Act, 1888. The Court held that the policy is binding on the Municipal Corporation and that the interim order of 23 June 2014 is no longer operative in view of the policy guidelines. Consequently, the Municipal Corporation is bound to follow its own policy guidelines when exercising its powers under the MMC Act.
id_425	1	Therefore, for exercising powers under Section 354 of the Mumbai Municipal Corporation Act of 1888 from the date of this Judgment, the Municipal Commissioner shall follow its own policy guidelines as the interim directions are not longer operative. We also make it clear that we have not examined the issue of legality and validity of the policy guidelines framed by the Municipal Corporation. In pursuance of the observations of the Supreme Court of India in Municipal Corporation for Greater Mumbai vs. State of Maharashtra & Ors. (supra) the 2018 Guidelines were issued by the Municipal Corporation on 25 May 2018 (as signed by the Municipal Commissioner on the said date) incorporating impugned clause No.1.15. As noted above, the grievance of the petitioners is in regard to Clause 1.15 of the 2018 Guidelines to the effect that clause 1.15 ought not to mean that consent from all the tenants/occupiers of a dilapidated building is mandated for issuance of a commencement certificate., In our opinion, there is much substance in the contention as urged on behalf of the petitioners, that Clause 1.15 cannot be interpreted to mean that the consent of all the occupants/tenants or 100% consent of the tenants/occupants in the manner as suggested in Clause 1.15 would be necessary for a commencement certificate to be issued. This for more than one reason. Firstly, it cannot be countenanced that once the majority of the occupants/tenants are agreeable to vacate the building and/or to accept the permanent alternate accommodation being offered by the owner, by protecting their occupancy rights as they stood at the time the building was demolished, it cannot be heard from the minority of such tenants/occupants, for whatever reasons, that they are not agreeable to a settlement in this regard or resist a permanent alternate accommodation as offered by the owner to the majority of the tenants/occupants, for a reason that a permanent alternate accommodation does not suit their requirements, or for some other reasons they are not agreeable to enter into a Permanent Alternate Accommodation Agreement, as in the present case. This would amount to few tenants/occupants bringing the entire redevelopment to a standstill, by not consenting to a permanent alternate accommodation or by raising disputes., Certainly, it cannot be the intention of the Division Bench when it passed the order dated 23 June 2014 issuing guidelines in the absence of a policy of the Municipal Corporation of Greater Mumbai, that the redevelopment project be put to a standstill until 100% of the tenants/occupants consent for redevelopment, by accepting a permanent alternate accommodation. Moreover it needs to be noted that the order dated 23 June 2014 was an order in invitum at the behest of the Municipal Corporation of Greater Mumbai and the State Government as clear from the following contents of paragraph 3 of the said order which reads thus: \Sometimes owners/builders are non‑cooperative and fail to take care of their obligations. Sometimes tenants/occupants do not cooperate. Mere initiation of civil and/or criminal proceedings for the same is also of no use or effective mechanism to evacuate or evict immediately the non‑cooperative tenants/occupants/owners. In view of the urgency expressed, we are inclined to pass the following order based upon the draft of minutes of order prepared and submitted by the Senior Counsel for the Petitioner Corporation and approved by the State Government and Maharashtra Housing and Area Development Authority. A copy of the draft of Minutes of Order is taken on record and marked X for identification.\, It also clearly appears that the Municipal Corporation of Greater Mumbai incorporated Clause 1.15 in the 2018 Guidelines, pursuant to the same being formulated by the Division Bench of the Supreme Court of India in its order dated 23 June 2014 (supra). In such context, in our opinion, on a holistic reading of the guidelines as formulated in the said order passed by the Division Bench the intention of the Court was to protect the interest of the tenants so that when the building was demolished, in an action resorted under Section 354 of the Mumbai Municipal Corporation Act, the rights of the occupants/tenants are protected and do not extinguish. No other intention can be inferred from Clauses 9(l) and 9(p) of the said order passed by the Division Bench as extracted hereinabove. Significantly, such guidelines were issued by the Division Bench, as there was no policy framed by the Municipal Corporation of Greater Mumbai on such issues., Be that as it may, in any event when the Municipal Corporation of Greater Mumbai issued the 2018 Guidelines it was wholly available to the Municipal Corporation of Greater Mumbai to consider all issues from different perspectives. There was no embargo on the Municipal Corporation of Greater Mumbai, when it took upon itself to formulate such guidelines from examining the effect its policy guidelines on all aspects of the redevelopment process. Thus, to stretch such directions of the Division Bench as transformed into Clause 1.15 of the 2018 guidelines, to mean that consent of 100% tenants/occupants, to be necessary as a condition for grant of a commencement certificate, certainly brings about unwarranted consequences, of stalling the redevelopment project by some tenants/occupants/members not consenting to the redevelopment. To attribute such consequences to Paragraphs 9(l) and (p) of the order dated 23 June 2014 passed by the Division Bench would amount to a wrong reading of such directions. A fortiori, such intention cannot be attributed to Clause 1.15 of the 2018 Guidelines. Significantly, even Clause 1.15 does not use the word all the tenants and/or occupiers, thus, to read such words or attribute such meaning to Clause 1.15, in our considered opinion would, in fact, render such condition unreasonable, unworkable as also arbitrary, when some of the tenants/occupants/members who are minority in number are not willing to consent to redevelopment and/or are not ready to enter into a Permanent Alternate Accommodation Agreement akin to a situation as in the present case., Secondly, such an intention to be attributed to Clause 1.15 as being canvassed on behalf of the Municipal Corporation of Greater Mumbai would not hold good also in terms of what the Development Control and Promotion Regulations 2034 would provide. Regulation 33(6) is a regulation providing for reconstruction of buildings destroyed by fire or which have collapsed or which have been demolished under lawful order. Such regulation itself provides that reconstruction would be subject to agreements by at least 70% of the occupants with the landlord. The said regulation reads thus: \33(6) Reconstruction of buildings destroyed by fire or which have collapsed or which have been demolished under lawful order. Reconstruction of buildings that existed on or after 10th June 1977 and have ceased to exist for reasons cited above, shall be allowed to be reconstructed with FSI as per Regulation No 30(C). Provided that if the area covered under staircase/lift has not been claimed free of FSI as per then prevailing Regulation as per the occupation plan, the area covered under staircases/lifts shall be considered while arriving protected BUA in such cases the premium for entire staircase lift area in the proposed building as per these Regulations shall be recovered. This FSI will be subject to the following conditions: (1) Reconstruction of the new building on the plot should conform to provisions of DP and these Regulations. (2) Reconstruction will be subject to an agreement executed by at least 70 per cent of the landlord and occupants each in the original building, within the meaning of the Mumbai Rents, Hotel and Lodging House Rates Control Act, 1947, and such agreement shall make a provision for accommodation and re‑accommodate the said landlord/all occupants in the new building on agreed terms and a certificate from a practicing advocate having minimum of 10 years experience, is submitted confirming that on the date of application, reconstruction, agreements are executed by at least 70% of the landlords and occupants each in the original building with the developer/owner. The advocate shall also certify that the agreements with occupants are valid and subsisting on the date of application.\, Even other regulations under the Development Control and Promotion Regulations 2034 which concern reconstruction or redevelopment, a consent of 51% of the occupants/tenants is what is mandated. These regulations are Regulations 33(5), 33(7), 33(7A), 33(9) and 33(10) which read thus: 33(5) Development / Redevelopment of Housing Schemes of Maharashtra Housing and Area Development Authority (MHADA) – 51% consent required; 33(7) Reconstruction or redevelopment of cessed buildings in the Island City by Co‑operative Housing Societies or of old buildings belonging to the Corporation – 51% consent required; 33(7A) Reconstruction or redevelopment of dilapidated/unsafe existing authorised tenant‑occupied building in Suburbs and extended Suburbs and existing authorised non‑cessed tenant‑occupied buildings in Mumbai City – 51% consent required; 33(9) Reconstruction or redevelopment of Cluster(s) of Buildings under Cluster Development Scheme(s) (CDS) – 51% consent per building or 70% overall of the scheme of eligible tenants/occupiers; 33(10) Redevelopment for Rehabilitation of Slum Dwellers – 70% consent required where 70% or more of the eligible hutment‑dwellers in a slum agree to join a rehabilitation scheme., In view of the clear provisions of Regulation 33(6) as also the other regulations as noted above, which unfold the statutory intention providing for 51% and 70% of the consent of the tenants/occupants, agreeing to accept permanent alternate accommodation as may be offered by the owner/landlord would be required to be accepted as an appropriate compliance for an entitlement for a commencement certificate to be issued for the redevelopment or reconstruction to be undertaken under the relevant regulations of the Development Control and Promotion Regulations. Thus, in our clear opinion, it was arbitrary for the Municipal Corporation of Greater Mumbai to insist from the petitioners, consent of 100% of the tenants and in its absence withhold the commencement certificate to be issued to the petitioners on respondent Nos.3 to 9 not consenting to accept residential tenements., For the sake of completeness, we may also observe that the Municipal Corporation of Greater Mumbai may receive proposals under Regulations 33(5), 33(7), 33(7A), 33(9) and 33(10) of the Development Control and Promotion Regulations 2034. On such proposals being received by the Municipal Corporation of Greater Mumbai, there is nothing to suggest that the Municipal Corporation of Greater Mumbai would not apply Clause 1.15 of the 2018 Guidelines. In our opinion, the position in regard to such proposals also would not be different and hence, the requirement of 100% consent of tenants entering into a Permanent Alternate Accommodation Agreement with the landlord/owner would not be applicable in respect of any proposal when the Development Control and Promotion Regulations 2034 itself mandates consent of 51% to 70% respectively of the occupants/tenants., It is a settled position in law that the interest of the minority occupants/tenants cannot be opposed to the interest of the majority occupants, as also such persons cannot foist on the owners a delay in commencement of the redevelopment work, resulting in the project cost being increased, which would be seriously prejudicial to the owners/developers and above all the majority of the occupants. (See: Girish Mulchand Mehta & Anr. Vs. Mahesh S. Mehta & Anr.; the judgment of the Supreme Court of India in Kamla Homes and Lifestyle Pvt. Ltd. Vs. Pushp Kamal Co‑operative Housing Society Ltd. & Ors.; Westin Sankalp Developers Vs. Ajay Sikandar Rana & Ors.; Sarthak Developers Vs. Bank of India Amrut Tara Staff Co‑operative Housing Society Ltd. & Ors.; Choice Developers Vs. Pantnagar Pearl CHS Ltd. & Ors.), In the present context, our attention has also been drawn to an order dated 28 January 2022 passed by a Coordinated Bench of the Supreme Court of India in Writ (I) No. 1591 of 2022 (Ratnesh Sheth and Anr. Vs. Municipal Corporation for Greater Mumbai & Ors.) wherein in similar circumstances the Court directed that non‑consent of two tenants for redevelopment of the building would not hold good as the other nine tenants have given their consent for redevelopment of the building which was already demolished. It was observed that two tenants cannot stall the entire redevelopment by withholding their consent, as it affects rights of all other tenants. The Division Bench hence directed that notwithstanding Condition No.12 of the Intimation of Disapproval as issued in the said case, the Municipal Corporation of Greater Mumbai was required to be directed to process the building permission of the petitioner developer., In the light of the above discussion, in our opinion, Writ Petition No. 5130 of 2022 is required to be allowed in the following terms: (i) It is declared that Clause 1.15 of the 2018 Guidelines issued by the Municipal Corporation of Greater Mumbai for declaring private and municipal buildings as C1 category (Dangerous, Unsafe) does not mandate consent/agreement to be obtained from all (100%) tenants/occupants, as consent of 51% to 70% of the occupants/tenants of the building, as applicable to the proposals made under the relevant Development Control and Promotion Regulations 2034 as noted above, shall amount to sufficient compliance for processing development/redevelopment proposal, for a commencement certificate to be issued, including in respect of buildings covered under Section 354 of the Mumbai Municipal Corporation Act. (ii) Consequent to the directions in (i) above, the Municipal Corporation of Greater Mumbai is directed to accept the consent of 32 unit‑holders/occupiers as sufficient compliance of Clause 1.15 of the 2018 Guidelines and Condition No. A39 and Notes 20 and 21 of the Intimation of Disapproval dated 16 June 2022. (iii) The petition is accordingly allowed in the above terms. No costs., In so far as the Writ Petition (I) No. 8486 of 2022 is concerned, the petition shall stand allowed in terms of the orders passed by us in Writ Petition No. 5130 of 2022. The Municipal Corporation of Greater Mumbai is accordingly directed to process the commencement certificate in favour of the petitioners without insisting for Permanent Alternate Accommodation Agreements in respect of 100% of tenants. Mr. Khandeparkar, learned counsel for the petitioners, states that the petitioners shall enter into a Permanent Alternate Accommodation Agreement with respondent No.9 within two weeks from today, similar to those executed with the other tenants. He states that in so far as respondent No.7 is concerned, there are proceedings pending before the Small Causes Court at Mumbai, and as there are disputes inter se between the private parties, his client is ready to enter into a Permanent Alternate Accommodation Agreement subject to the outcome of the said proceedings. Statement of Mr. Khandeparkar is accepted., In view of the petition itself being disposed of, Interim Application (I) Nos. 1929 of 2023 and Interim Application (I) No. 1323 of 2023 in Writ Petition (I) No. 8486 of 2022 would not require adjudication and would stand disposed of. Both the writ petitions stand disposed of. No costs.
id_426	0	Through: Mr. Abhishek Manu Singhvi, Senior Advocate and Mr. Dhruv Mehta, Senior Advocate with Mr. Sandeep Sharma, Mr. Amit Choudhary, Mr. Sarthak Mannan, Mr. Aman Dhyani, Ms. Kanika Mitra, Ms. Kanchan Semwal, Mr. Agnivesh Singh, Advocates versus Through: Mr. Rajshekhar Rao, Senior Advocate with Mr. Santanam Swaminadha, Mr. Kartik Malhotra, Advocates for Respondent 2; Mr. Rajiv Nayar, Senior Advocate with Mr. Dayan Krishnan, Senior Advocate with Mr. Sahil Narang, Mr. Abhay Vohra, Mr. Jaspal Singh, Mr. Prajjwal Sharma, Ms. Aahna Malhotra, Mr. Aayushman Kacker, Ms. Srishti Gupta, Mr. Ravindra Mitra, Mr. Abhishek Malhotra, Advocates for the Chief Minister., CM APPL. 48977/2022 (exemption) Allowed, subject to all just exceptions. Application shall stand disposed of., The writ petition seeks the following reliefs: issue a writ of certiorari against Respondent 2 quashing the sanction given for conducting the Indian Racing League supposedly scheduled between 19 November 2022 and 11 December 2022 in Hyderabad and Chennai; direct Respondent 2 and 4 to place on record all statutory permissions, licences and other documents on the basis of which the sanction for conducting the Indian Racing League was given; issue a writ of mandamus directing Respondent 1 to comply with the National Sports Development Code of India, 2011; appoint an administrator to evaluate the financial statement, management and operation of Respondent 2; direct Respondent 1 and Respondent 3 to take steps laying down a model framework for the organisation of sports events or championships within the country; and pass an order of temporary injunction against the Indian Racing League supposedly scheduled between 19 November 2022 and 11 December 2022 in Hyderabad and Chennai pending submission of complete documents by Respondent 2 and 4., On perusal of the material placed on record and the various averments made by the writ petitioner, there appears to be a serious managerial dispute between the petitioner, who is an investor, shareholder and Director in Respondent 4, and the other constituents of Respondent 4. The petitioner principally raises a grievance regarding the manner in which meetings were conducted by Respondent 4 and the resolutions passed therein. In view of this, the High Court of India finds no justification to entertain the challenge raised by the petitioner or to intervene in the event slated for 19 November 2022., Notwithstanding the foregoing, the High Court of India notes certain safety aspects raised by the writ petitioner in a representation addressed to Respondent 2 concerning the cars that are to participate in the upcoming event. The Court observes that Respondent 2 should duly examine these safety issues and take such measures as may be warranted in the facts and circumstances of the case., Subject to the aforesaid observations, the writ petition shall stand disposed of. Order signed under the signatures of the High Court of India Master.
id_427	0	Tikam 1/2 NOB- WPL 27400 of 2022 Deepak Vithal Adhav and Others, Petitioners; The State of Maharashtra and Others, Respondents. Mr. Vishal Raman as well as Simil Purohit as well as Bhushan Deshmukh in behalf of Arjun V. Lingalod for Petitioners. Coram: Justice Sandeep K. Shinde, Maharashtra High Court. Dated: 26 August 2022., Pursuant to the order dated 1 July 2022 passed by the Slum Rehabilitation Authority, notices were issued under Sections 33 and 38 of the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971. The order of the authority was challenged before the Apex Grievance Redressal Committee, Mumbai. On 12 August 2022, the Appellate Authority declined to stay the execution of the notices issued under Sections 33 and 38 of the said Act. Feeling aggrieved, the Petitioners have questioned the legality and correctness of the orders dated 1 July 2022, 12 August 2022 and the notices. The Petitioners are apprehending demolition of notice structures or huts occupied by them, rendering thereby the appeal infructuous. In the above circumstances, they have moved the Maharashtra High Court for a protective order., Heard learned counsel for the Petitioners., Learned counsel for the Petitioners, on instructions, submits that Respondent No.2 – Slum Authority and Respondent No.7 have been served with proceedings., In consideration of the fact that Ganesh Chaturthi is celebrated widely in Mumbai, authorities shall not take any coercive action in respect of notice structures till 24 September 2022. Thus clarified that the Maharashtra High Court has not heard the Petitioners on merits but, for the reasons stated above, time being protection has been granted. The petition is listed for further consideration on 21 September 2022. The Petitioners shall serve the proceedings on all contesting respondents before the returnable date and file an affidavit of service to that effect. Parties to act on an authenticated copy of the order. (Justice Sandeep K. Shinde).
id_43	0	This Miscellaneous Civil Application has been filed to recall or review the judgment and order dated 09.03.2020 passed in Special Civil Application No.13041 of 2019 and the order dated 23.12.2020 passed in Miscellaneous Civil Application (For Direction) No.1 of 2020 in the aforesaid petition., Special Civil Application No.13041 of 2019 was filed by Onali Ezazuddin Dholkawala challenging the order of the Deputy Collector, Vadodara dated 30.01.2017, which was confirmed by the Secretary, Revenue Department on 13.06.2018. By those orders, the petitioner's permission for purchase of property in a predominantly Hindu area was rejected on the ground that such sale was likely to affect the balance between the majority Hindu and minority Muslim communities and could develop into a law and order problem., After setting out the facts as stated in the petition and hearing the arguments of the petitioners and the State counsel, the petition was allowed. Gujarat High Court opined that the issue to be examined was whether the sale was for a fair consideration and with free consent. The consideration that the sale would create a law and order problem and disturb the communal equilibrium was misconceived., Appreciating the provisions of the Gujarat Prohibition of Transfer of Immovable Property and the Tenants from Eviction from Premises in Disturbed Areas Act, 1981 (hereinafter referred to as the Disturbed Areas Act), the Court found that the petitioners – the transferee – and the sellers – the transferor – had entered into a sale deed. Before the deed could be registered, an application seeking prior permission was necessary under the Disturbed Areas Act. The petitioners stated that the intended sellers wanted to transfer the property in favour of the petitioners, executed a sale deed and presented it before the Sub‑Registrar for registration. At that point the parties noticed that, because the area is declared a disturbed area, prior permission of the Deputy Collector under the Disturbed Areas Act was required., Accordingly, the petitioners preferred an application under Section 5(3)(c) of the Disturbed Areas Act to the Deputy Collector, Vadodara. The application, placed at page 26 of the paper‑book, was made in the prescribed format and was accompanied by the sellers' statement, the sellers' affidavit, the purchasers' statement and the purchasers' affidavit. Both statements and affidavits unequivocally stated that the sale of the property was with free consent and for a fair value, as required under Section 5 of the Disturbed Areas Act., By a letter dated 01.06.2016, the Deputy Collector, Vadodara, addressed the Police Commissioner of the City of Vadodara seeking a focused inquiry on (i) whether the sale was with free consent, (ii) whether there was a likelihood of a law and order problem in the future, (iii) whether the sale was likely to affect the balance between the majority Hindu and minority Muslim strength, and (iv) whether the sale was likely to affect the neighbourhood. The Police Commissioner, vide a letter dated 09.08.2016, requested the Deputy Commissioner of Police, Vadodara, to make the inquiry and submit a report. The report was submitted by the Assistant Police Commissioner on 09.08.2016, and on 19.09.2016 the Talati and the Circle Officer recorded the statements of the transferor, transferee and the neighbourhood residents., As prescribed in the procedure for obtaining prior permission, the affidavit of the petitioner and the seller was annexed to the application in the prescribed format and two panchnamas were drawn by the neighbourhood occupants. Both panchnamas, signed by the panchas, confirmed their consent to the sale. However, the police report opined that such a transfer would create a law and order problem because a sale by a Muslim to a Hindu could result in polarization, and therefore recommended that the application should not be granted., Gujarat High Court held that the only relevant enquiry was whether the sale was a distress sale, whether it was for a fair value and whether it was made with free consent. The police concerns were deemed irrelevant. Since the Sub‑Registrar was not completing the registration of the sale deed, the petitioners moved Miscellaneous Civil Application No.1/2020 seeking a direction that the Sub‑Registrar be ordered to complete the registration of the sale deed dated 22.04.2016. The application was heard from time to time, the directions of the judgment were complied with and the document was registered vide order dated 15.12.2020. The learned advocate for the petitioner sought permission to withdraw the application, which was disposed of., Three years after the order, the signatory to one of the two panchnamas, who had otherwise supported the sale, approached the Division Bench challenging the judgment and order dated 09.03.2020. The appeal was withdrawn with liberty to file a review., Mr. Jayraj Chauhan, learned counsel appearing with Mr. Alkesh N. Shah, made the following submissions: the declarations of the owners and the purchasers were dated 14.04.2016 and 15.04.2016; the sale deed was executed on 22.04.2016; permission to sell was sought after the execution of the sale deed on 01.08.2016; reading Section 5 of the Disturbed Areas Act, it was necessary for the parties to obtain prior sanction of the Collector, which was not obtained and therefore the permission obtained was prohibited; the MCA (For Direction) was the first time the date of the sale deed was expressly stated; the judgment and order dated 09.03.2020 were obtained by fraud because the petitioners projected that a prior sanction was prayed for, whereas the sale deed had already been executed; factual errors were pointed out, namely that the Court stated the sale was to a Hindu of a shop in a Muslim‑predominant area, whereas in fact it was a shop of a Hindu sold to a Muslim in a Hindu‑dominated area; the provisions of the Disturbed Areas Act allow rejection of an application where there is a likelihood of communal polarization; the panchas who signed the panchnamas were never neighbours and had signed under coercion, indicating fraud; notifications issued under the Disturbed Areas Act confirm that the property and its police station were covered by the Act; reliance was placed on Board of Control for Cricket in India v. Netaji Cricket Club (2005(4) SCC 741), Orissa Public Service Commission v. Rupashree Chowdhary (2011(8) SCC 108), Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997(7) SCC 622), Sant Lal Gupta v. Modern Coop. Housing Society Limited (2010(13) SCC 336) and Hamza Haji v. State of Kerala (2006(7)). It was submitted that the order should be recalled because it was obtained on a wrong presentation of facts and a misconstruction of law., Mr. MTM Hakim, learned counsel for the original petitioners/respondents, submitted that there was no misconception of fact because the Court was aware that the sale deed had been executed and had recorded such execution. The petitioners had presented the deed before the Sub‑Registrar, who refused registration without the Collector's permission under the Disturbed Areas Act. Communications dated 12.04.2022 and 20.06.2022 showed that the Additional Registrar of Stamps had instructed that no documents be accepted for registration without prior permission. Hence, the petitioners did not commit fraud and the Court was not misled. The document was presented for registration on 22.04.2016 and, but for the Miscellaneous Civil Application (For Direction), could not have been registered on 15.12.2020; the registration date is the date the document is said to be executed. Reliance was placed on Ghanshyam Sarda v. Shashikant Jha (2017(1) SCC 599), establishing that previous sanction had been obtained. The panchas of the two panchnamas have no locus standi to prefer this recall application as they were not necessary parties for the permission; the State's affidavit shows that the panchas do not dispute their signatures but have now subsequently disputed their consent, which is a motivated exercise. The Court had relied on SNA Infraprojects Pvt. Ltd. v. Sub‑Registrar (2011(3) GLH 15), where a civil application by neighbours was dismissed as misconceived; similarly, the present application should be dismissed with costs. The neighbours' application (Civil Application No.2 of 2022 for Joining Party) is also a motivated application., Ms. Dharitri Pancholi, learned Assistant Government Pleader for the State, submitted that the State, pursuant to the oral directions of the Court, recorded statements of the panchas who said they were constrained to sign the panchnamas as neighbours. Subsequently, other neighbourhood statements indicated that the neighbours had expressed reservations against the transaction., Having heard the learned advocates, Gujarat High Court considered whether the judgments dated 09.03.2020 and 23.12.2020 deserve recall. The applicants argued that factual errors were made in describing the community involved in the sale – the Court said the shop was of a Hindu sold to a Muslim in a Hindu‑dominated area, whereas the judgment incorrectly stated it was a sale to a Hindu. The Court held that such a singular error is minor and does not render the order vulnerable to recall. The allegation of fraud, based on the claim that the permission application was filed on 01.08.2016 after the sale deed of 22.04.2016, was rejected because the petition itself records that the parties noticed the need for prior permission only when the deed was presented for registration. Therefore, the judgment was not obtained by fraud., The Court examined the provisions of the Disturbed Areas Act in light of the challenge that the order was based on a supposed law and order problem. It opined that the Deputy Collector's inquiry should focus on whether the property was sold for fair value and with free consent. The statements of the seller and purchasers, annexed to the petition, confirmed that the transaction was at jantri rates. There was no suppression of fact or false suggestion, and the requirement of prior permission was discussed because the authorities had refused to register the deed without it. No misrepresentation by the petitioners was found., Regarding the panchnama signatories, the applicants claimed their signatures were obtained under coercion and that they did not reside in the neighbourhood. The Court noted that the State affidavit recorded a fresh statement in which the applicants said they did not dispute the signatures but were compelled to sign. Photographs produced by the original petitioners showed that the signatories were residing within the neighbourhood. The Court reiterated that when the scope of inquiry is limited to free consent and fair value, the role of neighbours becomes irrelevant, as expressly recorded in paragraph 15.6 of the judgment., The Court referred to the decision in SNA Infraprojects Pvt. Ltd. (Supra) and held that, similar to that case, the present application seeking recall should be dismissed. The Court also considered the historical notifications under the Disturbed Areas Act concerning Kochrab village, noting that the area was declared a disturbed area by notifications dated 29.10.1994, 29.10.1997 and subsequent amendments, which prohibited transfers without prior Collector sanction during the specified periods. The Court concluded that the order dated 09.03.2020 and the subsequent order dated 23.12.2020 should not be recalled.
id_43	1	Thus, it is only after June 2010 that the transactions of sale have fallen foul of the Act. While the petitioner had submitted the instruments of sale of various flats in Mevawala Flats from 29 July 2010 to 25 November 2010, there was protest by a Committee comprising the applicants in the civil applications made herein, styled as Shree Kochrab Ellisbridge Hitrakashak Samiti. A representation was submitted by that Committee to the then Honourable Speaker of the State Legislative Assembly. That representation was forwarded by the Speaker to the Collector, Ahmedabad with the remark that the Speaker expected the Collector to remain active and protect the citizens residing in or around the sensitive area of Mevawala Flats, so as to stop migration. Pursuant to that and referring to that as well as representations dated 29 June 2010 and 20 July 2010 of the Committee, the City Deputy Collector called upon the Sub Registrar to report whether sales of nine flats in Mevawala Flats were registered with permission or without permission under the Act. That letter dated 26 July 2010 of the City Deputy Collector, marked on top as Important/Today, was replied by the Sub Registrar on 27 July 2010 with the information that the documents were registered without permission under the Act and that Notification dated 29 October 1994 did not mention Mevawala Flat Association against Entry No.20 for Ellisbridge area. On the other hand, the Circle Officer of Kochrab Chhadwad area wrote to the City Mamlatdar on 27 July 2010 that Mevawala Flats were not included in the disturbed area of Kochrab village as declared by Notification dated 30 October 2007. Thereafter, the City Deputy Collector wrote on 27 November 2010 to the Sub Registrar that Notification dated 29 October 1997 had declared disturbed areas in which the areas under Ellisbridge Police Station were shown at serial No.21; that residents of Mevawala Flats had made representation about sale deeds being executed without permission of the Collector under the Act; and, therefore, it should be verified through the local police station and city survey office whether the area of Mevawala Flats is included in the disturbed areas and documents shall be registered after permission under the Act is obtained. Pursuant to that letter dated 27 November 2010, Senior Police Inspector of Ellisbridge Police Station appears to have written to the Deputy Collector on 20 December 2010 that, as Kochrab village is included in the notification under the Act and as Mevawala Flats are located in final plot No.852 of Town Planning Scheme No.3/6 of the periphery of Kochrab village, Mevawala Flats are included in the disturbed area., It is pursuant to the above procedure and correspondence that the impugned communication dated 11 January 2011 expressly referred to and relied upon the letter of the Senior Police Inspector to state that Mevawala Flats were included in the disturbed area and hence prior permission under the Act was required to be obtained for registration of sale deeds., With the above background of facts, it was vehemently argued by learned senior advocate Mister Y. N. Oza, appearing for the petitioner, that it was only on communal considerations and at the instance of the then Honourable Speaker that the sale deeds in favour of the petitioner were illegally withheld by the authorities. It was submitted that Kochrab village was originally a small separate village and the area of Kochrab village proper was always defined and demarcated in successive surveys and the area of Mevawala Flats was never a part of Kochrab village. He further submitted that according to Town Planning Scheme No.3/6 and in the map prepared by D.I.L.R., relied upon by the respondents, the village site of Kochrab was clearly demarcated in different colour and final plot No.852 was far away from the village site, due to which the area of Mevawala Flats could never be meant or understood to be a part of the site of Kochrab village. In fact, beyond the village site of Kochrab, there are in the northern direction large parcels of land bearing survey Nos.838, 846, 848, 849 and 850, then there is a 40 ft. wide road crossing the area from west to east and further north there are lands bearing survey Nos.851, 852 and 853. Therefore, by no stretch could final plot No.852 be said to be a part of the area of village Kochrab; and, therefore, the revenue authorities and the Sub Registrar had taken the correct view in not insisting upon prior permission under the Act for all the years from 1995 to 2010., He further submitted that apparently because the Managing Director of the petitioner company happened to be a Muslim, objections were raised by obtaining the opinion of the Police Inspector. He also submitted that the Town Planning Scheme No.3/6 was approved and enforced for about forty years, clearly demarcating the village site of Kochrab and hence the authorities could be presumed to be aware of the area of village Kochrab as demarcated in the Town Planning Scheme., As against that, learned Government Pleader, appearing for the respondents, submitted that the Sub Registrar has issued the impugned communication in bona fide exercise of his power to give the petitioner an opportunity to obtain prior permission so as to register the documents in accordance with law, rather than refusing to register them for being null and void., Against the above backdrop of facts and contentions, it was seen that the Act was enacted in 1991 to declare certain transfers of immovable properties in disturbed areas of the State to be void and to prohibit temporary transfers of immovable properties in such areas. Section 3 of the Act provides for declaration of certain area to be a disturbed area for a specified period, having regard to the intensity and duration of riot or mob‑violence and such other factors in any area of the State wherein public order was disturbed for a substantial period. Section 4 of the Act provides that all transfers of immovable property situated in a disturbed area made during the specified period shall be null and void with effect from the date of such transfers and also provides for an application to the Collector, within the prescribed period, for a declaration that the transfer of immovable property was made by free consent of the transferor and transferee and for a fair value. Such application could be rejected after hearing the parties and considering the evidence or the Collector may declare by an order that the transfer was valid. Section 5 of the Act, opening with a non‑obstante clause, provides that no immovable property situated in a disturbed area shall, during the period of subsistence of the notification issued under sub‑section (1) of section 3 declaring such area to be the disturbed area, be transferred except with the previous sanction of the Collector; and any transfer of immovable property made in contravention of sub‑section (1) shall be null and void. Section 5 also provides for making an application to the Collector, for holding a formal inquiry, opportunity of hearing and ascertaining whether the transfer of immovable property is proposed to be made by free consent of the transferor and the transferee and for a fair value. The decision of the Collector under section 4 or 5, subject to appeal to the State Government under section 6 and the decision of the State Government on the appeal, shall be final and conclusive and shall not be questioned in any Court, according to section 8. No suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or purported to be done under the Act, in terms of section 10 of the Act. A bare reading of the preamble and relevant provisions of the Act would clearly show that restriction on transfer of immovable property is imposed by the Government with the clear intention of, and provision for, ensuring that any transfer of immovable property in a disturbed area is made by free consent of the parties and for a fair value., By virtue of section 4 of the Transfer of Property Act, 1882, section 54 of that Act has to be read as supplemental to the Indian Registration Act, 1908. Section 54 of the Transfer of Property Act defines Sale and stipulates that transfer, in case of tangible immovable property of the value of one hundred rupees and upwards, can be made only by a registered instrument. Relevant provisions of the Indian Registration Act, 1908 read as under: 34. Enquiry before registration by registering officer (3) The registering officer shall thereupon (a) enquire whether or not such document was executed by the person by whom it purports to have been executed; (b) satisfy himself as to the identity of the persons appearing before him and alleging that they have executed the document; and (c) in the case of any person appearing as a representative, assignee or agent, satisfy himself of the right of such person so to appear. 35. Procedure on admission and denial of execution respectively (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the persons they represent themselves to be, and if they all admit the execution of the document, or (b) If in the case of any person appearing by a representative, assignee or agent, such representative, assignee or agent admits the execution, or (c) If the person executing the document is dead, and his representative or assignee appears before the registering officer and admits the execution, the registering officer shall register the document as directed in sections 58 to 61, inclusive. (2) The registering officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office. (3) (a) If any person by whom the document purports to be executed denies its execution, or (b) if any such person appears to the registering officer to be a minor, an idiot or a lunatic, or (c) if any person by whom the document purports to be executed is dead, and his representative or assignee denies its execution, the registering officer shall refuse to register the document as to the person so denying, appearing or dead: PROVIDED that, where such officer is a Registrar, he shall follow the procedure prescribed in Part XII: Government may, by notification in the Official Gazette, declare that any Sub Registrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Registrar for the purposes of this sub‑section and 71. Reasons for refusal to register to be recorded (1) Every Sub‑Registrar refusing to register a document, except on the ground that the property to which it relates is not situate within his subdistrict, shall make an order of refusal and record his reasons for such order in his Book No. 2, and endorse the words \registration refused\ on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded. (2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered. 72. Appeal to Registrar from orders of Sub‑Registrar refusing registration on grounds other than denial of execution (l) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a Sub‑Registrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such Sub‑Registrar is subordinate, if presented to such Registrar within thirty days from the date of the order; and the Registrar may reverse or alter such order. (2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the Sub‑Registrar shall obey the same, and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document had been registered when it was first duly presented for registration. 73. Application to Registrar where Sub‑Registrar refuses to register on ground of denial of execution (1) When a Sub‑Registrar has refused to register a document on the ground that any person by whom it purports to be executed, or his representative or assign, denies its execution, any person claiming under such document, or his representative, assignee or agent authorized as aforesaid, may, within thirty days after the making of the order of refusal, apply to the Registrar to whom such Sub Registrar is subordinate in order to establish his right to have the document registered. (2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints. 74. Procedure of Registrar on such application: In such case, and also where such denial as aforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire (a) whether the document has been executed; (b) whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration., Rule 45 of the Gujarat Registration Rules, 1970, made in exercise of the powers conferred by Section 69 of the Registration Act, 1908, reads as under: Rule 45 Certain requirements to be verified before accepting a document for registration (1) A registering officer shall, before accepting any document for registration, not concern himself with its validity but see that (a) it is properly stamped; (b) it is presented within the proper time and in the proper office; (c) it is presented by a competent person; (d) if it relates to immovable property, that it is not open to objection under section 21 or 22; (e) if any document is in a language which he does not understand, the provisions of section 19 are complied with; (f) any interlineations blanks, erasures or alterations appearing in the document are attested by the signature or initials of the person or persons executing the same as required by section 20; (g) the deed does not contravene the provisions of Sub Section (1) of Section 5 of the Foreign Exchange Regulation Act, 1947, and (h) whether sale certificate and prior permission in writing of the authorities concerned are produced before him in original, if the deed relates to transfer of Government built property. (2) If on presentation of the document, the fees prescribed under section 78 are not paid, the registering office shall refuse to register the document., It is unfortunate that even after more than sixty years of the operation of the Constitution, not only some of the elite citizenry but State functionaries did not seem to have imbibed the spirit of our Constitution, which by its Preamble itself sought to constitute a secular republic to secure to all its citizens equality of status and opportunity and to promote fraternity, ensuring dignity of the individual. Therefore, no law in India could be so interpreted and applied as to exclude the members of one or the other community from carrying on legitimate business activities and entering into commercial transactions. Contrary to the contentions of the applicants in the civil applications, the intent and purpose of the Act clearly appears to be prevention of migration of residents in minority in one area and taking over of their properties by other communities under coercion in the aftermath of communal disturbances. There is nothing in the Act to suggest that it was intended to divide residents or citizens on communal lines., Therefore, the applications made in the main petitions are found and held to be motivated and misconceived and the impugned communication and the stand of the respondent is found and held to be illegal and inconsistent with the provisions of the Act as well as the relevant provisions of the Indian Registration Act, 1908. The present litigation and delay in registration of the sale deeds in question necessarily entails losses and unnecessary expenditure for the petitioner. The petitions are stated at the bar to have been argued for days on end, at the admission stage, before at least three benches of the Gujarat High Court; and thus considerable public time of the Gujarat High Court is spent on this litigation at the cost of other cases pending for decades., In the facts and for the reasons discussed hereinabove, all the petitions are allowed, and the civil applications are dismissed with cost quantified at Rs.50,000/- with the direction that the sale deeds enumerated in letter dated 18 December 2010 of the petitioner shall be duly processed for registration in accordance with the provisions of the Registration Act, 1908 and returned to the petitioner in accordance with law. The amount of cost, which shall be paid to the petitioner within a period of one month, shall be borne by the respondents in the main petition to the extent of Rs.25,000/- and the remaining cost of Rs.25,000/- shall be paid in equal proportion by the applicants in the civil applications., In the case before the Court, certain applicants who were neighbours had filed Civil Applications and the Court found that such applicants who were residents of other buildings in the neighbourhood had no locus standi or legal right under the Act to protest and prevent transfer of immovable property in the area concerned. The Civil Applications were dismissed with cost., The motive of the applicants is questionable. The judgment was delivered on 09 March 2020. The signatures of the applicants – panchas – are in context of their signatures made in the year 2016. Two years after the decision they surface before this Court asking for a recall of the order on the ground that they have never signed or that they were coerced into signing. Unfortunately, a suggestion from the Court to the State to examine this led to a situation where the State machinery has gone ahead and re‑examined these panchas in the year 2022, in which they appear to be not disputing their signatures but the circumstances of them being made to sign. Statements have also been recorded of certain other neighbours who have now come forward suggesting that the sale should not have happened as it was creating a situation where the equilibrium was being disturbed. This exercise of the State, through an affidavit, is a suggestion of opposing the application, but the intention is seen otherwise. The motive of the applicants has to be seen in light of this development., Unfortunately for the applicants, the apprehension of the Gujarat High Court on such motive appears to be justified by a subsequent application made being Civil Application No.1 of 2022 by ten third‑party applicants who professed to be neighbours seeking to be joined as parties to the recall application on the ground that they are really affected parties as the shops purchased by the original petitioners are adjoining their shops. It has come on record that the original petitioners after the sale deed was registered pursuant to the directions in the Miscellaneous Civil Application made an application for renovation so that the property can be occupied. This application of the petitioners was made to the police authorities on 08 October 2021 and it has come on record through the rejoinder filed by the original petitioners that the petitioners are being prevented from undertaking repairs to the dilapidated structure and when they were being prevented by the neighbours they had to complain to the police. Obviously therefore, this when seen in context of the facts itself is a disturbing factor that a successful purchaser of property in a disturbed area is being hounded and thwarting his attempt to enjoy the fruits of the property which he successfully purchased. Obviously therefore not only does the Review Application, but the application of neighbours for Joining Party need to be dismissed., In view of the above, the application for Review being Miscellaneous Civil Application No.1 of 2022 is dismissed with cost of Rs.25,000/- (Rupees Twenty‑Five Thousand Only). Civil Application No.2 of 2022 for joining party is also dismissed with cost of Rs.25,000/- (Rupees Twenty‑Five Thousand Only). The cost shall be deposited before the Gujarat State Legal Services Authority within a period of four weeks from the date of receipt of copy of this order., The original records have been handed over to Ms. Dharitri Pancholi, learned Assistant Government Pleader, who has handed them over to the Officer of the Deputy Collector, Vadodara City, Vadodara.
id_430	0	CRM-15328-2021 Date of Decision: 12.7.2021 Nishant @ Nishu Petitioner versus State of Haryana Respondent. Present: Mr. H. P. S. Ishar, Advocate for the applicant-petitioner; Mr. Gaurav Bansal, Additional Advocate General, Haryana. Case taken up through video conferencing., This application under Section 482 of the Code of Criminal Procedure has been filed by the applicant-petitioner for preponing the date of hearing fixed in the main petition as 14.9.2021 and for withdrawal of the said petition with liberty to furnish the bail bonds before the trial Court in terms of order dated 13.2.2020., In the application, it is contended that Chief Judicial Magistrate, Panchkula vide order dated 13.2.2021 had allowed bail to the present petitioner/accused Nishant @ Nishu; however, this fact did not come to the notice of the petitioner/accused or his counsel and an application for regular bail was filed before learned Sessions Judge, Panchkula on 3.9.2020, which was declined vide a detailed order dated 15.9.2020, copy of which is Annexure P3., Thereafter, the petitioner has approached the High Court of Punjab and Haryana at Chandigarh craving for grant of regular bail. The main petition is now listed for 14.9.2021. A very peculiar and unusual situation has arisen. A perusal of the order passed by Chief Judicial Magistrate, Panchkula, copy of which has been attached with the instant application as Annexure A1, shows that the order was passed in the presence of the petitioner/accused, who was in custody and represented by counsel Shri Saurabh Sharma, Advocate., It is very strange that neither the petitioner/accused nor his counsel came to know about the order granting regular bail to the petitioner/accused and rather learned Sessions Judge, Panchkula was approached by way of filing an application for regular bail., It is very surprising that without verifying and going through the order passed by Chief Judicial Magistrate, Panchkula, learned Sessions Judge, Panchkula proceeded to dispose of the application for regular bail when it should not have been done as bail had already been granted to the petitioner by Chief Judicial Magistrate, Panchkula., Neither Shri Swaran Singh, Advocate representing the petitioner/accused nor Shri Romil Lamba, Public Prosecutor for the respondent State is shown to have brought this fact to the notice of learned Sessions Judge, Panchkula. If they had done so, such a situation could have been avoided., It was incumbent upon the police authorities to assist the Court properly and to intimate the Court with regard to the order passed by the learned Chief Judicial Magistrate., A perusal of the order passed by learned Sessions Judge, Panchkula (Annexure P3) shows that a reply to the bail application had been filed by the prosecution. In the reply itself, this fact should have been mentioned but it appears that it was not., Thereafter, when the petition for regular bail was dismissed, the petitioner approached the High Court of Punjab and Haryana at Chandigarh. In the process, valuable time of learned Sessions Judge, Panchkula and this Court has been wasted and the petitioner himself has remained behind bars for a period of more than one year and four months on account of non‑functioning of courts., Let explanation be rendered by Shri Subhas Mehla, the then Sessions Judge, Panchkula, as to how this situation has cropped up., Learned State counsel shall bring this order to the notice of the Director, Prosecution, Haryana and the Director General of Police, Haryana so that responsibility of the persons at fault can be fixed and necessary action taken against them., The explanation shall be furnished by 12.8.2021 after informing the Director, Prosecution, Haryana and the Director General of Police, Haryana. Learned State counsel shall intimate this Court in that regard., However, with regard to the instant application seeking preponement of the date of hearing fixed in the main petition as 14.9.2021 and for withdrawal of the said petition, the same is allowed and permission is granted to the applicant-petitioner to withdraw the main petition i.e. CRM‑M‑32812‑2020., On oral request of learned counsel for the applicant-petitioner, the main petition i.e. CRM‑M‑32812‑2020 is preponed for today.
id_432	0	CRM-M-30950 of 2019 Date of decision: 02.12.2020 Raj Kumar Saini Petitioner Sant Kanwar Respondent Present: Mr. Vinod Ghai, Senior Advocate, assisted by Ms. Kanika Ahuja, Advocate, for the petitioner. None for the respondent. Sanjay Kumar, Judge. By this petition filed under Section 482 of the Criminal Procedure Code, the petitioner seeks quashing of Complaint No. 83 of 2018 dated 18.04.2018, titled 'Sant Kanwar v. Raj Kumar Saini', under Sections 499, 500 and 501 of the Indian Penal Code, on the file of the learned Judicial Magistrate First Class, Rohtak, along with all proceedings emanating therefrom, including the order dated 13.06.2018, whereby the petitioner was summoned to face trial., By order dated 13.09.2019, the High Court noted the contention of Mr. Vinod Ghai, learned senior counsel appearing for the petitioner, that Sant Kanwar, the respondent‑complainant, had no locus standi to maintain the subject complaint and stayed further proceedings pursuant to the summoning order dated 13.06.2018 passed therein. Despite service of notice, the respondent‑complainant did not choose to enter appearance before the High Court., At the outset, it may be noted that the issue of maintainability of this petition under Section 482 of the Criminal Procedure Code stands settled in favour of the petitioner as the inherent powers of this Court cannot be curtailed by the existence of the alternative remedy of revision under Section 397 of the Criminal Procedure Code. See Dhariwal Tobacco Products Ltd. and others v. State of Maharashtra and another (2009) 2 SCC 370, Prabhu Chawla v. State of Rajasthan and another (2016) 16 SCC 30 and Vijay and another v. State of Maharashtra (2017) 13 SCC 317. Perusal of the complaint filed by the respondent‑complainant demonstrates that he claimed to be a follower of late Chaudhary Matu Ram Hooda, an Arya Samajist and freedom fighter. He stated that late Chaudhary Matu Ram Hooda was an inspiration and a guiding light for him. He claimed to have read newspapers on 02.04.2018 and 03.04.2018, wherein it was reported that the petitioner had made several defamatory statements against late Chaudhary Matu Ram Hooda. It is on the strength of these newspaper reports that he filed the subject complaint alleging that the petitioner had committed the offence of defamation. Having examined the complaint, the complainant and the documents filed by him, the learned Magistrate issued the impugned summoning order dated 13.06.2018 calling upon the petitioner to face trial., Section 199 of the Criminal Procedure Code deals with prosecution for defamation. Sub‑section 1 thereof states that no Court should take cognizance of an offence punishable under Chapter XXI of the Indian Penal Code, 1860, except upon a complaint made by some person aggrieved by the offence. This provision therefore mandates that the complaint be made by a 'person aggrieved'. Chapter XXI of the Indian Penal Code deals with defamation. Section 499 therein defines defamation and Explanations 1 and 2 appended thereto give an indication as to who would be a 'person aggrieved'. Explanation 1 states that imputing anything to a deceased person would amount to defamation, if such imputation would have harmed the reputation of that person had he been living and such imputation is intended to be hurtful to the feelings of his family or other near relatives. Explanation 2 states that it may amount to defamation to make an imputation concerning a company or an association or collection of persons as such. The statutory scheme therefore indicates that the 'person aggrieved' must have an element of personal interest, being either the person defamed himself or, in the case of a deceased person, his family member or other near relative., It may also be noted that Section 320 of the Criminal Procedure Code permits compounding of the offence of defamation but it is only the person who is defamed who can agree to the same. Reference may be made to the Division Bench judgment of the Patna High Court in 'Bhagwan Shree Rajneesh v. The State of Bihar and another' (1986 SCC OnLine Patna 174), wherein it was observed that though generally the person aggrieved is only the person defamed, an exception has been made in the case of a deceased person but the 'persons aggrieved' even in such case are limited only to members of his family or his near relatives, whose feelings would be hurt by the defamatory statement, and none else. The Division Bench relied upon the judgment of the Supreme Court in 'G. Narasimhan and others v. T.V. Chokkappa' (AIR 1972 SC 2609), wherein it was held that an exception was created to the general rule that a complaint could be filed by anybody, whether he is aggrieved or not, as Section 198 of the old Code of 1898 (presently Section 199 of the Criminal Procedure Code) modified that general rule by permitting only an 'aggrieved person' to move the Magistrate in cases pertaining to defamation. The Supreme Court observed that compliance with this Section was mandatory and if a Magistrate took cognizance of the offence of defamation on a complaint made by one who was not an 'aggrieved person', the trial and conviction in such a case would be void and illegal., In the case on hand, the respondent‑complainant does not claim to be a member of the family of late Chaudhary Matu Ram Hooda or his near relative. The summoning order manifests that he contended before the learned Magistrate that he fell within the definition of a 'person aggrieved' as his family was closely related to late Chaudhary Matu Ram Hooda, but this claim seems to have been based more on ideological considerations rather than any actual relationship. There was no averment in the complaint itself indicative of any familial relationship. Explanation 1 to Section 499 of the Indian Penal Code makes it amply clear that it is only the 'family members' or 'near relatives' of the deceased person, against whom imputations have been made, who can claim to be 'persons aggrieved'. Therefore, the respondent‑complainant, who is not a 'family member' or 'near relative' of late Chaudhary Matu Ram Hooda, cannot unilaterally assume the status of an 'aggrieved person' under Section 199 of the Criminal Procedure Code, whereby he can assert that his feelings were hurt and maintain the subject complaint against the petitioner before the learned Magistrate for the alleged offence of defamation., In effect, the complaint was deficient and tainted in its very inception and was, therefore, not maintainable. In consequence, this petition under Section 482 of the Criminal Procedure Code is allowed, quashing Complaint No. 83 of 2018, titled 'Sant Kanwar v. Raj Kumar Saini', on the file of the learned Judicial Magistrate First Class, Rohtak, and all proceedings arising therefrom, including the summoning order dated 13.06.2018 passed therein.
id_435	0	ARG Outlier Media Private Ltd. & Anr. Petitioners Union of India and Ors. Respondents Mr. Nikhil Sakhardande, Senior Advocate appearing with Pralhad Paranjpe appearing with Saket Shukla appearing with Mrinal Ojha appearing with Debashri Dutta, Vasanth Rajasekaran appearing with Rajat Pradhan appearing with Sanjeev Sambasivan appearing with Reshma Pavipati in behalf of Phoenix Legal for the Petitioners Ms. Jyoti Chavan, Advocate General of the State for the Respondent - State (Through Video Conferencing) Not on board. Taken on board., Heard learned Counsel for the parties., The Petitioners have sought various writs primarily aimed at the Digital Multi-System Operators (Cable Network Operators) for not stopping the broadcast of the News TV channels of the Petitioners, namely Republic TV and Republic TV Bharat. According to the Petitioners, the cause of action for seeking such reliefs is a communication issued by the Respondent No.5 - Shiv Cable Sena to various Cable Network Operators on 10 September 2020. The Petitioners contend that by this communication, Respondent No.5 has threatened the Cable Network Operators that if they do not cease to air these TV channels, they would have to face public agitation., Mr. Sakhardande, the learned Senior Advocate for the Petitioners, submits that as regards the dispute between the Cable Network Operators and the Petitioners, the Telecom Disputes Settlement and Appellate Tribunal (TDSAT) is the appropriate authority. However, as per the notification issued by it, it is not functioning till 18 September 2020. The learned Counsel submits that because of this position, the Supreme Court of India should entertain the Petition and issue necessary directions to the Respondents State and Union of India to ensure smooth broadcast of the TV channels., Ms. Chavan, the learned Advocate General of the State appearing for the State of Maharashtra, submits that the Petitioners' grievance is against private entities and the writ petition is not an appropriate remedy, and the Petitioners can file a civil suit, besides the other available statutory remedies., We have considered the rival contentions., The Respondent No.5 Shiv Cable Sena is not a statutory authority to either supersede the licence granted to the Petitioners or to interfere in the contractual or statutory relationship between the Petitioners and the Cable Network Operators. The communication issued by it has, therefore, no effect in law., If the Cable Network Operators breach the contractual or statutory relationship with the Petitioners, the Petitioners have the remedy of approaching the appropriate authority. The Petitioners have sought a restraint order till the reopening of the Tribunal on the ground that the Cable Network Operators may stop airing the TV channels of the Petitioners pursuant to the communication by Respondent No.5. It is not brought to our notice that any Cable Network Operator has ceased to air the two TV channels as of now. Even if the Cable Network Operators do cease to air the concerned channels, it is not possible for us to presume that it is only because of the communication issued by Respondent No.5, or for any other reason., As regards the intimidating communications, the recipients have their remedies of approaching the law enforcement authorities like any other citizen., In these circumstances, we do not deem it necessary to pass any further orders. Clarifying the position as above, the writ petition is disposed of., This order will be digitally signed by the Personal Assistant/Private Secretary of the Supreme Court of India. All concerned to act on production by fax or email of a digitally signed copy of this order.
id_438	0	Reserved on: September 15, 2022; Pronounced on: October 11, 2022. Reference for Appeal (Original Suit) 15/2022 and Case Memo No. 34279/2022. Through: Mr. Sudhanshu Batra, Senior Advocate with Mr. Gagan Mathur, Ms. Madhu Sehgal and Mr. Rishi Sehgal, Advocates versus Through: Mr. Ashish Dholakia, Senior Advocate with Mr. Jai Saha and Mr. Ashish Kumar, Advocates for respondents 1 to 3; Mr. Arvind Nigam, Senior Advocate with Ms. Niharika Ahluwalia and Ms. Ishita Deswal, Advocates for respondents 4 and 5; Ms. Astha Badoriya and Ms. Mansi Sharma, Advocates for respondent 6., The family tree of the parties involved is as under: Mrs. Sheila Kapila (Died: 08.04.2003; Will: 18.11.1999), Mrs. Sudha Panda, Mrs. Leela Kapila, Dr. Rajendra Kapila, Mr. Jitendra Kapila (Died: 10.11.2019) (R4/D1) (Died: 28.04.2021) (R5/D2), Mrs. Bina Kapila, Mrs. Deepti Saxena Kapila (1st Wife: (2nd Wife/ No children) Divorced) (R6/D3), Mr. Vikrant Kapila, Ms. Gitanjali Kapila, Ms. Pankaja Panda, Mr. Prasanjit Panda, Mr. Pradyut Panda, Mr. Udayan Panda., By virtue of the present appeal, the appellants challenge the judgment and preliminary decree dated 10.05.2022 whereby the Learned Single Judge, based upon the Will of late Mrs. Sheila Kapila, after demarcating the 25 percent equal share of all her four children in the property bearing No. D 897, New Friends Colony, New Delhi, measuring 471 square yards, has put the same to sale and distributed the proceeds thereof equally amongst them. The judgment is hereinafter referred to as the Impugned Judgment; the testator is hereinafter referred to as the Testator; the property is hereinafter referred to as the Property., The sole issue for consideration before us hinges upon the interpretation of the Will dated 18.11.1999, which, being admitted by all parties, is not under challenge. Relevant clauses for purposes of adjudication of disputes inter se parties, being clauses (i), (ii) and (iii) of the said Will, are as follows: (i) The house shall belong to all the four children with each having a 25 percent share in the property. (ii) The beneficiaries will not have any power to dispose of their share of the property in any manner whatsoever. They will have the right to enjoy their share of the property but will not have the right to make any Will with respect to their share. (iii) If any of the four beneficiaries die then his or her share of property shall devolve upon his or her children who will have the full ownership of the property with the power of disposal. However, if the children of the deceased beneficiary intend to dispose of their share of the property then they shall first offer it to the other beneficiaries of their children in case they are dead., The rest of the clauses, being jointly applicable to all the parties, are not relevant for the purposes of the present dispute., Admittedly, there is no dispute qua the division of the equal 25 percent share of the four children in the Property, be it by way of testamentary succession in terms of the Will or by way of intestate succession in terms of the Indian Succession Act, 1925., As per brief facts, respondents 1 to 3 instituted a suit for partition of the Property belonging to the Testator pleading that the Testator died intestate on 08.04.2003 leaving behind four children, namely Mrs. Sudha Panda, Mrs. Leela Kapila, Dr. Rajendra Kapila and Mr. Jitendra Kapila. Upon her demise, the said four children inherited a 25 percent equal share in her aforesaid Property. Thereafter, her first child, Ms. Sudha Panda died intestate on 10.11.2019 leaving behind respondents 1 to 3. Both her second and fourth child, respondents 4 and 5, are the only surviving children left. Lastly, her third child, Dr. Rajendra Kapila also died on 28.04.2021 leaving behind the appellants and respondent 6, his second wife. Before his demise, Dr. Rajendra Kapila executed a Will dated 22.02.2020 bequeathing all his estate to respondent 6 to the exclusion of both appellants. Resultantly, legal proceedings are pending inter se them in the United States of America., Both appellants and respondent 6 are together entitled to a 25 percent share inherited by them from the late Dr. Rajendra Kapila (though the same is disputed by them) and the respondents 1 to 3 are together entitled to a 25 percent share inherited by them from their mother late Mrs. Sudha Panda and respondent 4 – Mrs. Leela Kapila and respondent 5 – Mr. Jitendra Kapila being the surviving children are individually entitled to a 25 percent share each., Upon being served, the respondents 4, 5 and respondent 6 filed separate written statements supporting the case of respondents 1 to 3 whereas the appellants 1 and 2 filed separate written statements opposing their case. The appellants propounded a copy of the Will; however, there was no whereabouts of the original thereof., After hearing the parties and despite recording that the circumstances created a serious doubt noting non‑production of the original thereof; and that it was denied by respondents 1 to 3 as well as respondents 4, 5 and 6; and after categorically expressing reservations qua its very existence, for the reasons recorded therein, the Learned Single Judge passed the detailed Impugned Judgment after considering the said Will., Vide the Impugned Judgment, the Learned Single Judge disagreed with the contention of the appellants that as per clauses (ii) and (iii), the four children of the Testator only had a limited right in the Property and that upon the demise of any of the four children, their respective shares would devolve upon their respective children, i.e., the grandchildren who will have the full ownership of the Property, and relying upon Madhuri Ghosh and Anr. v. Debobroto Dutta and Anr., held that as per clause (i), the Testator bequeathed the Property in equal share to all her four children and thus clause (iii) would not take away the absolute vesting of the Property in their favour; further that in terms of Section 113 of the Indian Succession Act, as respondent 4 had no child of her own, there could be no devolution and thus such a bequest was void ab initio., Lastly, relying upon Jasbir Kumar v. Kanchan Kaur and Ors. and Santosh Kumar v. Col. Satsangi’s Kiran Memorial Aipeccs Educational Complex and Anr., the Learned Single Judge held that as the dispute inter se the parties was only with regard to the interpretation of clauses of the Will, hence, no evidence of any kind was required to be led., The Impugned Judgment has brought all the parties at crossroads. Being aggrieved, the present appeal is by the appellants, who have once again raised similar issues, which already stand negated by the Learned Single Judge. The appellants, who are the legal heirs of the deceased third child of the Testator, are the lone branch fighting the battle against other three branches, comprising of the two surviving children and the other comprising of other set of grandchildren of the Testator. According to us the root cause of this litigation emanates from the Will dated 22.02.2020 whereby the father of the appellants, late Dr. Rajendra Kapila, has bequeathed all his estate to respondent 6 to their exclusion. Much is at stake for the appellants in view thereof., As per parties, there are conflicting clauses in the Will. On one hand, appellants contend that as per clauses (ii) and (iii), the four children have a limited bequest whereas they, like other grandchildren of the Testator, have an absolute bequest; on the other hand, respondents contend that as per clause (i) those very four children have an absolute bequest and thus the subsequent clauses (ii) and (iii) qua the grandchildren have no meaning., Learned senior counsel for appellants contended that clauses (ii) and (iii) are supreme and have an overriding effect over clause (i) and thus the appellants, along with other grandchildren of the Testator, have an absolute bequest over their 25 percent share in the Property against the four children, who have a limited bequest with restrictions till their lifetime only. In support thereof, learned senior counsel drew attention to the restrictions used in respect of the individual shares of the four children, namely they have no power to dispose, have right to enjoy and not have the right to make any Will in Clause (ii) against those used in respect of the rights of the grandchildren, namely full ownership, with the power of disposal in clause (iii)., Learned senior counsel then contended that the Impugned Judgment has been summarily passed under Order XI I rule 6 and Order XV rule 1 of the Code of Civil Procedure, 1908 without giving any chance of trial to the appellants to prove the Will., In support of his submissions, learned senior counsel relied upon M.S. Bhavani v. M.S. Raghu Nandan; Navneet Lal @ Rangi v. Gokul & Ors.; Ramachandra Shenoy & Anr. v. Hilda Brite & Ors.; Ram Kishore Lal & Anr. v. Kamal Narayan; Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer; and Jasbir Kumar (supra)., Learned senior counsel then contended that in case of conflict between two clauses in a Will which cannot be read together, applying the principles of harmonious construction, the latter clause will prevail as per Section 88 of the Indian Succession Act., To be noted further that although the appellants have raised the plea(s) of Section 6(d) of the Transfer of Property Act, 1881 and Section 113 of the Indian Succession Act, no arguments were addressed qua them so we need not dwell over the matter and the same are deemed to have been given up., Per contra, learned senior counsels for all the respondents appearing separately before us fully supported the views, reasonings and the findings of the Learned Single Judge recorded in the Impugned Judgment., Learned senior counsel for respondents 4 and 5, relying upon Madhuri Ghosh (supra), has contended that as per clause (i) the four children have an absolute bequest over the Property and as such any other bequest in favour of the grandchildren is non‑existent. In support thereof, he relied upon the admissions qua the combined 25 percent share in the Property made by appellants in their respective written statements, the e‑mails dated 02.10.2021 and 03.11.2021, which have been admitted by them in their respective Affidavit of Admission/Denial to contend that, undisputedly as per the Will, the four children have an absolute bequest over the Property and the grandchildren have no interest over the same., Learned senior counsel, further relying upon the averments made by appellants in paragraph 27 of their respective written statements, by respondent 4 in paragraph 15 of her written statement, by respondent 5 in paragraph 12 of his written statement and lastly by respondent 6 in paragraph 1 of her written statement, has also contended that all parties are in agreement that the said Property cannot be partitioned by metes and bounds., Learned senior counsel has lastly contended that as the whole dispute is with respect to the interpretation of the Will, there is no triable issue; further, as the same is an unregistered document, original whereabouts is not known, thus, the plea of the appellants is sham and bogus. In support, learned senior counsel relied upon Section 2 of the Partition Act, 1893 whereby the Court has the power to direct sale of the property on a request of any or all the shareholders and further submitted that as all the parties are residing outside India and have no intention of returning to India, a collective request was made by all the parties which led to passing of the Impugned Judgment., Learned counsel for respondents 1 to 3, supporting the case of respondents 4 and 5, has additionally drawn the attention of this Court to paragraph 26 of the written statement of the appellants and e‑mails dated 02.10.2011 and 03.11.2021 sent by mother of appellants – Mrs. Bina Sehgal and appellants themselves to respondents 1 to 3 wherein it has been admitted that Dr. Rajendra Kapila had a 25 percent share in the Property and there ought to be four equal shares thereof., Similarly, learned counsel for respondent 6, also supporting the case of respondents 4 and 5, has relied upon the Will dated 22.02.2020 of late Dr. Rajendra Kapila to stake claim to her 25 percent share in the Property and referred to the pending litigation inter se herself and the appellants herein., In support of above, learned counsel for respondents have relied upon M.S. Bhavani v. M.S. Raghu Nandan; Madhuri Ghosh (supra); Sadaram Suryanarayan & Anr. v. Kalla Surya Kantham & Anr.; Mauleshwar Mani v. Jagdish Prasad; Kaivelikkal Ambunhi v. H. Ganesh Bhandary; Gopala Menon v. Sivaraman Nair & Ors.; Commissioner of Wealth Tax, West Bengal v. Bishwanath Chatterjee; Rameshwar Bakhsh & Ors. v. Balraj Kaur & Ors.; Umrao Singh v. Baldev Singh & Anr.; Savita Anand v. Krishna Sain & Ors.; Santosh Kumar (supra); S.K. Chopra v. V.N. Chopra; Jasbir Kumar (supra)., It cannot escape our attention that it was only during rejoinder arguments that learned senior counsel for appellants, for the first time, also made a passing reference by contending that in view of Section 87 of the Indian Succession Act, the intention of the Testator has to be harmoniously construed to give effect to all clauses of the Will as far as possible. As there is no pleading to that effect anywhere and it runs contrary to his pleadings qua Section 88 of the Act, we are not propounding on it., After hearing learned senior counsels for all the parties at considerable length and perusal of all the pleadings, especially the Will on record, we have no hesitation in concluding that the sole issue before us is revolving around the interpretation of the Will., Before adverting to the facts of the case and giving our findings, we find that admittedly disputes regarding interpretation of a Will have been knocking the legal doors since time immemorial and though such doors have been successfully closed vide numerous pronouncements, the issue will always be burning as there can be no closure to it. In our opinion, for reaching a final culmination with respect to interpretation of a Will it is imperative for the Court to look at it from the eyes of a layman rather than a lawman. For this we find support from Ramachandra Shenoy (supra) wherein it has been held as under: \Quite a number of authorities were cited by learned counsel on either side but in each one of these we find it stated that in the matter of the construction of a will authorities or precedents were of no help as each will has to be construed in its own terms and in the setting in which the clauses occur. We have therefore not thought it necessary to refer to these decisions.\, As per basic settled principles of law, it is the foremost duty of the Court to carefully give a purposeful meaning to the words and logical interpretation to the language of a Will to infer and draw the real intention of the testator. As meaning is sought to be given to the intention of the testator to what he must have meant when he was alive, after his demise, due importance has to be given to the surrounding circumstances, the background, the status and relations with the family and society of the testator. The purpose must be to derive the real intention of the testator and recognize the dispositive rights of the beneficiaries for reaching a conclusion as far as practically possible. The Court is to look behind the cloak and lift the veil., As far as possible, a Will has to be read as a whole and in case of contradictions, inconsistencies, variations or alike, they have to be brought to variance with each other on a level playing field. The intention ought to be inferred from the words and the language used in the Will without reading into them or drawing any preconceived notion and without tinkering with the basic structure of the Will for deciphering their true literal meaning. The words in the Will ought to be given a plain, simple and grammatical meaning as per Dictionary without any ifs or buts. We find support in N. Kasturi vs. D. Ponnammal & Ors. wherein it has been held as under: \It is obvious that a court cannot embark on the task of construing a will with a preconceived notion that intestacy must be avoided or vesting must not be postponed. The intention of the testator and the effect of the dispositions contained in the will must be decided by construing the will as a whole and giving the relevant clauses in the will their plain grammatical meaning considered together. In construing a will, it is generally not profitable or useful to refer to the construction of other wills because the construction of each will must necessarily depend upon the terms used by the will considered as a whole, and the result which follows on a fair and reasonable construction of the said words must vary from will to will. Therefore, we must look at the relevant clauses carefully and decide which of the two rival constructions should be accepted.\, Also, as far as possible all clauses in a Will are to be given equal importance, benefit and uniformity in conjunction with each other and not taken disjointly. The clauses in a Will are like sailors on a ship sailing in the same direction. Each clause has an individual value like each sailor has an individual role to play. Thus, a Will has to be harmoniously construed under all circumstances. What is to be kept in mind is that where some clause(s) in the Will are or can be overstepping on each other and as the same cannot be altered or no explanation can be sought from the testator, it should be made sure that such clause(s) do not trample upon each other so as to negate any one of them. In case the clause(s) are inconsistent and a divergent meaning is possible, the order of precedence should be followed, i.e., the more powerful/meaningful clause(s) is to take precedence over the less meaningful clause(s). When there is a clause bequeathing absolute rights then the same cannot be followed by other clause(s) with restricted rights. An absolute right is an outright recognition which cannot be fettered by imposing a condition in the form of a restrictive right., Where words in a clause can be interpreted in more than one way, it would be in the interest of things to choose and give the best possible, plausible, constructive meaning in the overall interest of everybody so as to draw a single straight line with no breakers rather than falling back on something which is implausibly destructive against the interest of everybody. In such situations, the meaning which furthers the cause ought to be chosen rather than which goes against the cause. The Court steps into the shoes of a kapellmeister and at the end of the day as everybody likes a melodious song, it is the duty of the Court to choose the music which is ears to the soul. Words and clauses of the same Will ought not be picked or chosen out of context. All words are to be regarded as essential and all the clauses should be reconciled with each other and are to be read together as being part and parcel of the same document, however in case, for some reason it is not possible to do the same, then the more beneficial interpretation should be adopted so as to bring a hiatus to the conflicting situation., According to us, the Will in question is a single document to be read as a whole. All clauses in the Will are in complete sync with each other. The Will before us is like a mathematical theorem where each step is vital and has its own purposeful meaning and is inter‑dependent upon the other steps; taking out one step would render the theorem non‑existent. The Testator has merely recorded what is a matter of fact unconcerned by what was a matter of law. Like any elderly of the family in an Indian household, it was her intention throughout to be just and fair, as far as possible, to each of those part of her progeny, including her children and her grandchildren. She tried to paint both the sky and earth with the same colour to the best of her ability, not realising that the same was neither practically possible nor legally permissible., We are of the opinion that the opening clause (i) clearly bears out her intention of distributing equal shares of 25 percent each in the Property to all the four children. As such there is an absolute bequest in favour of the four children by the Testator. The rest of the clauses are an expression of her desire that the Property would remain within the family for which the manner of devolution has been contoured. That the four children have been given an absolute bequest by clause (i) is also evident from the fact that there are no riders or limitations attached to it. Clause (ii) and (iii) are not restrictive but are only to streamline the carrying forward of the Property in the family lineage. Once it is held so, then clause (ii) and (iii) cannot stand in the way to curtail the unfettered rights of the four children given by clause (i) and the restrictions put therein are of no avail. The rest of the clauses in the Will are immaterial for the purposes of the present adjudication as they are applicable to all those jointly covered in the erstwhile clause (i), (ii) and (iii) separately. Such restrictive clause (ii) and (iii) are in fact void, repugnant and are against the law. The Testator could not have legally put any restrictions over her four children from making a Will or from not disposing of their respective shares after granting them absolute bequest. We find support from Gopala Menon (supra) wherein it has been held as under: \The absolute and unrestricted power to dispose of property is a necessary incident of an absolute estate. It is implicit, when an absolute estate is conferred, that the grantee is free to deal with and dispose of the property in any manner. Indeed, if an absolute grant is burdened with a restraint on alienation, the grant is good and the condition void.\, Seeing it from another angle, even if clause (i), (ii) and (iii) are taken to be distinct from each other, even then, under the facts of the present case, if it is not possible to read all the clauses together, then also clause (i) will take precedence over clause (ii) and (iii). A bare reading of the Will shows that the grandchildren have not been given any rights of their own as clause (ii) and (iii) are dependent upon clause (i) and the grandchildren derive their rights from their parents, the four children of the Testator who have been given an absolute bequest by clause (i). According to us, no other reading can give a more purposeful interpretation to the Will. If we are to agree with the interpretation of the Will sought to be given by the appellants then it cannot be given effect to as the second legal heir – Mrs. Leela Kapila, respondent 4 has no child till date. Clause (ii) and (iii) have no meaning themselves and are in support of clause (i) of the Will. Even otherwise, the said view is neither practically possible nor legally permissible., Learned senior counsel of appellants has sought to argue that the rights of the grandchildren by clause (iii) are better than that of the four children by clause (i). Agreeing with the said contention will mean that the grandchildren will steal a march over the four children. Alas, we do not agree as this could never have been the intention of the Testator as a plain reading of the Will reveals otherwise. This cannot be permitted. Had that been so, the Testator would have made a direct bequest in favour of the grandchildren without bringing any of her four children into the picture. That is not so in the present case which makes us conclude otherwise. The most logical conclusion to the Will is thus that the Testator was methodical to recognise and give the equal 25 percent share by clause (i) and the grandchildren have no independent right of their own and what is contained in clauses (ii) and (iii) are recognition of the expression of the desires of the Testator., When an absolute bequest has been given to the four children by clause (i), then any bequest in favour of the grandchildren by clause (ii) and (iii) is at the outset otiose, redundant and cannot be given effect to. Thus 25 percent share in the Property of the four children as per clause (i) are supreme and the grandchildren cannot have any rights whatsoever as per clause (ii) and (iii) as there would be no devolution onto them., Upon giving due weightage and proper meaning to clause (i) after the above discussion, we have no hesitation in holding that the words 'shall' and 'belong' used in conjunction in clause (i) qua the 25 percent share of all the four children create an absolute bequest in their favour. According to us, the words 'shall belong' is an expression of fact meaning something more than mere possession, that which is a part of establishing what is rightful and actual having an affirmative assertion about ownership. It would thus mean that as per clause (i) of the Will there is an absolute bequest by the Testator in favour of those belonging to the First Generation. We are supported by Commissioner of Wealth Tax, West Bengal (supra) wherein it has been held as under: \The expression 'belong' has been defined as follows in the Oxford English Dictionary: To be the property or rightful possession of. So, it is the property of a person, or that which is in his possession as of right, which is liable to wealth tax. In other words, the liability to wealth tax arises out of ownership of the asset, and not otherwise. Mere possession, or joint possession, unaccompanied by the right to, or ownership of property would therefore not bring the property within the definition of net wealth for it would not then be an asset 'belonging' to the assessee.\, We also find support in Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur & Anr wherein it has been held as under: \Though the word 'belonging' no doubt is capable of denoting an absolute title, it is nevertheless not confined to connoting that sense. Even possession of an interest less than that of full ownership could be signified by that word. In Webster 'belong to' is explained as meaning inter alia 'to be owned by, be the possession of'. The precise sense which the word was meant to convey can therefore be gathered only by reading the document as a whole and adverting to the context in which it occurs.\, According to us, the Will in question is a single document to be read as a whole. All clauses in the Will are in complete sync with each other. The Will before us is like a mathematical theorem where each step is vital and has its own purposeful meaning and is inter‑dependent upon the other steps; taking out one step would render the theorem non‑existent.
id_438	1	Coming next to paragraph 5, what we have stated in regard to paragraph 2 and the use of the expression \belonging to me\ occurring there would in our opinion apply equally to the use of the word 'owner' in this paragraph. Having held so, let us now advert to the position of law qua absolute bequest and also when there is such an absolute bequest. We are fortified with Sadaram Suryanarayana (supra) wherein it has been held as under:, In (Kunwar) Rameshwar Bakhsh Singh's case (supra) the Privy Council held that where an absolute estate is created by a Will in favour of the devisee, other clauses in the Will which are repugnant to such absolute estate cannot cut down the estate; but must be held to be invalid. The following passage summed up the law on the subject: \Where an absolute estate is created by a Will in favour of the devisee, the clauses in the Will which are repugnant to such absolute estate cannot cut down the estate; but they must be held to be invalid.\, In Radha Sundar Dutta's case (supra), the High Court of India was dealing with a situation where there was a conflict between two clauses appearing in the Will. The Court ruled in favour of the earlier clause, holding that the later clause would give way to the former. The Court said: \where there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not vice versa\., The issue came up for consideration once again before a Constitution Bench of the High Court of India in Ramkishore Lal's case (supra). In that case the Court was concerned with the approach to be adopted where a conflict arises between what is said in one part of the testament vis‑à‑vis what is stated in another part of the same document, especially when in the earlier part the bequest is absolute but the latter part of the document gives a contrary direction about the very same property. The Court held that in the event of such a conflict the absolute title conferred upon the legatee by the earlier clauses appearing in the Will cannot be diluted or taken away and shall prevail over directions contained in the latter part of the disposition. The following passage from the decision is instructive: \The golden rule of construction, it has been said, is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the High Court of India has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has, to a trained conveyancer, a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. Sometimes it happens in the case of documents as regards disposition of properties, whether they are testamentary or non‑testamentary instruments, that there is a clear conflict between what is said in one part of the document and in another. A familiar instance of this is where in an earlier part of the document some property is given absolutely to one person but later on, other directions about the same property are given which conflict with and take away from the absolute title given in the earlier portion. What is to be done where this happens? It is well settled that in case of such a conflict the earlier disposition of absolute title should prevail and the later directions of disposition should be disregarded as unsuccessful attempts to restrict the title already given. (See Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Deo Dhabal Deo (1960) 3 SCR 604). It is clear, however, that an attempt should always be made to read the two parts of the documents harmoniously, if possible. It is only when this is not possible, e.g., where an absolute title is given in clear and unambiguous terms and the later provisions trench on the same, that the later provisions have to be held to be void.\, To the same effect is the decision of the High Court of India in Mauleshwar Mani's case (supra) where the question once again was whether an absolute interest created in the property by the testatrix in the earlier part of the Will can be taken away or rendered ineffective by the subsequent bequest which is repugnant to the first bequest. Answering the question in the negative, the Court held that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to him to further bequeath the very same property in favour of a second set of persons. The following passage from the decision in this regard is apposite: \In view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of the second set of persons in the same will, a testator cannot create successive legatees in his will. The object behind is that once an absolute right is vested in the first devisee the testator cannot change the line of succession of the first devisee. Where a testator having conferred an absolute right on anyone, the subsequent bequest for the same property in favour of other persons would be repugnant to the first bequest in the will and has to be held invalid. We are, therefore, of the view that once the testator has given an absolute estate in favour of the first devisee it is not open to him to further bequeath the very same property in favour of the second set of persons.\, We also find support in Navneet Lal @ Rangi (supra) wherein it has been held as under: (5) It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will., We also find support in Madhuri Ghosh (supra) wherein it has been held as under: 11. In law, the position is that where an absolute bequest has been made in respect of certain property to certain persons, then a subsequent bequest made qua the same property later in the same will to other persons will be of no effect., We further find support in Mauleshwar Mani (supra) wherein it has been held as under: 12. In view of the aforesaid principles that once the testator has given an absolute right and interest in his entire property to a devisee it is not open to the testator to further bequeath the same property in favour of a second set of persons in the same Will. A testator cannot create successive legatees in his will. The object behind is that once an absolute right is vested in the first devisee the testator cannot change the line of succession of the first devisee. Where a testator having conferred an absolute right on anyone the subsequent bequest for the same property in favour of other persons would be repugnant to the first bequest in the Will and has to be held invalid., We further find support in M.S. Bhavani (supra) wherein it has been held as under: 12.5. In any case, even if it is assumed that the latter clause went beyond a mere expression of desire and created a bequest in favour of the children of the testator (Appellant No. 1 and Respondent No. 1), the first clause creating an absolute right in favour of Nirmala Murthy shall prevail over such clause., Having held so, and though we are conscious of the various judicial pronouncements wherein it has also been held that the latter clause(s) will prevail over the earlier clause, however, having carefully gone through the Will, we have no hesitation in opining that the present case is not one such case where a restrictive bequest given by the latter clause(s) can override the absolute bequest given by the earlier clause. If we hold so, it will render the Will without meaning and will certainly go against the wishes of the testator. Being clear and specific, we find there is nothing cryptic or vague about the words or language used in clause (i). According to us, as there is an absolute bequest in favour of the four children in terms of clause (i), the remaining clauses in the Will, including clauses (ii) and (iii), are redundant as they can neither take precedence over nor override the said clause (i). Thus clause (ii) and (iii) will not and cannot prevail over clause (i)., Further, having once held so, no triable issue can be framed under the facts and circumstances of the case. We reiterate that the parties are consensus ad idem qua the Will as all of them are relying upon the Will and the only dispute is qua the interpretation thereof. Accordingly, there is nothing surviving which requires framing of any factual issue or legal issue. In view of the above, there is no triable issue left for the High Court of India to adjudicate. In fact, when the case rests on admitted facts and/or documents, no triable issue arises and thus cannot be framed; further if there are no documents left to be proven by any of the parties, there is nothing left to prove. All issues inter‑se the parties stand settled and closed and nothing is surviving. Appellants being the ones who propounded the Will cannot be allowed to agitate anything disputing the same. They cannot be allowed to probate and reprobate to argue something contrary to their own pleadings. In fact, learned senior counsel for appellants was unable to point out any so‑called triable issue which arises for adjudication in the present dispute., Since approaching this Court and then canvassing its arguments before this Court, the appellants have neither denied their 25 % equal share in the Property as per the Will nor have raised any dispute qua the admissibility of the said Will. It is thus deemed admitted for all purposes and so the doors of trial stood foreclosed from the very inception. Taking all the above into consideration, this is a fit case under Order XII rule 6 and Order XIV rule 1 of the Code to be exercised for proceeding to pass a decree without trial. This will, of course, enable saving valuable time, cost, effort and money of the parties. We find support in Savita Anand (supra) and Keshav Chander Thakur (supra)., In view of the aforesaid, Section 113 of the Act is not involved anymore, the parties are to proceed as suggested in the Impugned Judgment., There is no hindrance in proceeding with the same as the steps qua sale and division of the property inter‑se the four children in this case, as the High Court of India, under Section 2 of the Partition Act, 1893 can proceed on the request of all the shareholders by passing the Impugned Judgment in the facts of the case, especially in view of the undisputed fact that the property is to devolve in equal 25 % share to all the four children., Finding no infirmity, perversity or illegality in the Impugned Judgment dated 10.05.2022 passed by the Learned Single Judge qua the interpretation of the Will in question, we find there are no grounds of interference by the High Court of India., Since the appeal has been finally heard and disposed of, parties shall abide by the terms and conditions stipulated in the Impugned Judgment dated 10.05.2022 and proceed taking appropriate steps in the best interest of all., The Impugned Judgment and decree dated 10.05.2022 to the extent that the property be put up for sale so that the proceeds thereof can be divided equally amongst the parties in terms of the 25 % share each in the property bearing No. D‑897, New Friends Colony, New Delhi, admeasuring 471 Sq. Yards determined in the following manner is thus upheld: Appellants, Respondent No. 6, Respondent Nos. 1 to 3, Respondent No. 4, Respondent No. 5., Before parting we wish to reiterate that according to us, the main grievance of the appellants is against their late father Dr. Rajendra Kapila, who executed a Will dated 22.02.2020 and bequeathed everything in favour of his second wife – Respondent No. 6 to their exclusion. Had that not been the case, there would have been no litigation at all as upon division, all the four children and their lineage were always entitled to the equal 25 % share in the property, be it by way of testamentary succession in terms of the Will or by way of intestate succession in terms of the Indian Succession Act, 1925., In view of the above discussion, legal position and facts and circumstances of this case, we believe we have given a purposeful meaning to the Will to put to rest the wishes of who lays at rest. Accordingly, we dispose of the present appeal, along with the pending application, with the aforesaid directions. No order as to costs. The parties to bear their own costs.
id_439	0	Supplementary gd/ssd/cm/ Debajyoti /Kole/ Tanmoy (Through Video Conference) Writ Petition (Arbitration) 10504 of 2021 Shri Firhad Hakim @ Bobby Hakim & Ors. Mr. Tushar Mehta, Solicitor General of India; Mr. Y.J. Dastoor, Additional Solicitor General of India; Mr. Samrat Goswami, Advocate for the petitioner and Applicants in Criminal Application No. 5 through Dr. Abhishek Manu Singhvi, Senior Advocate; Mr. Kalyan Bandopadhyay, Senior Advocate; Mr. Sandip Dasgupta, Advocate; Mr. Niladri Bhattacharya, Advocate; Mr. Ayan Kumar De, Advocate for the applicants in Criminal Application Nos. 1, 3 & 4 through V.C.; Mr. Siddharth Luthra, Senior Advocate; Mr. Debayan Sen, Advocate for the respondent in Criminal Application No. 2 of 2021 through V.C.; Mr. Kishore Dutta, Advocate General; Mr. Abhratosh Majumder, Additional Advocate General; Mr. Sayan Sinha, Advocate for the State through V.C. Arijit Banerjee, J. These four applications have been filed by four accused persons in a criminal case initiated against them and others under Section 120B of the Indian Penal Code read with Sections 7, 13(2) and 13(1)(a) & (d) of the Prevention of Corruption Act, 1988. The applications are for recalling an order dated 17 May 2021 passed by the Supreme Court of India in Writ Petition (Arbitration) 10504 of 2021., By the said order, the Supreme Court of India stayed the operation of the bail order passed by the learned Judge, Special CBI Court No. I, City Sessions Court, Calcutta, on 17 May 2021 in favour of the present applicants who had been taken into custody on that very morning. It was further directed that the accused persons shall be treated as being in judicial custody till further orders. The reasons for which the Supreme Court of India stayed the operation of the bail order are recorded in its order dated 17 May 2021 and have nothing to do with the merits of the bail order., The facts which are not in dispute are that a case under the Prevention of Corruption Act was registered against many accused including some Ministers in the present Government of West Bengal, on the directions issued by the Supreme Court of India. In view of various orders passed by the Supreme Court of India, the investigation and prosecution of cases against Members of Parliament and Members of Legislative Assembly were to be monitored by the Court. It was only thereafter that the matter was expedited. Sanction of prosecution was granted by the Competent Authority and four accused were arrested in the morning. They were to be produced in the Court., Immediately after their arrest, a mob started gathering outside the Central Bureau of Investigation office. At 10.50 hours, the Chief Minister of West Bengal, Smt. Mamata Banerjee, sat on dharna in the CBI office. It is claimed by Mr. Tushar Mehta, Solicitor General of India, that she was demanding their unconditional release, a fact not denied by the learned Advocate General. In addition, the learned counsel for the Central Bureau of Investigation stated that the Law Minister of the State, along with supporters, mobbed the Court where the accused were to be presented with the charge sheet. The Law Minister remained in the Court complex throughout the day until the arguments were heard., In these facts and circumstances, any order passed by the Supreme Court of India would not have the faith and confidence of the people in the system of administration of justice. Public trust and confidence in the judicial system would be eroded if such incidents are allowed to happen in matters where political leaders are arrested and are to be produced in Court. The people may feel that it is not the rule of law that prevails but a mob that has the upper hand, especially when it is led by the Chief Minister in the CBI office and by the Law Minister in the Court complex. If the parties to a litigation believe in the rule of law, such a system must be followed., In our opinion, the aforesaid facts are sufficient to take cognizance of the present matter with reference to the request of the Solicitor General of India for examination of the issue regarding transfer of the trial. We are not touching the merits of the controversy but the manner in which pressure was sought to be put will not inspire confidence of the people in the rule of law. As during the period when the arguments were heard, the order was passed by the Court below, we deem it appropriate to stay that order and direct that the accused persons shall be treated as being in judicial custody till further orders. The authority in whose custody they are kept shall ensure that they have all medical facilities available as required and that they are treated in terms of the provisions of the Jail Manual., The grounds urged in the present applications for recalling the Supreme Court of India's order dated 17 May 2021 are manifold, including that the order was passed without giving notice to the applicants who have been vitally affected by being deprived of the benefit of the bail order passed by the learned Court below. We are in the process of hearing these applications along with Criminal Application No. 5 of 2021 filed in Writ Petition (Arbitration) No. 10504 of 2021 by the Central Bureau of Investigation, wherein the prayers are firstly for transfer of the criminal proceedings to the Supreme Court of India in exercise of power under Section 407 of the Code of Criminal Procedure; secondly, to declare the proceedings dated 17 May 2021 before the learned Court below to be a nullity in the eyes of law; and thirdly, for continuance of the Supreme Court of India's order dated 17 May 2021 pending final hearing and disposal of the CBI's application. Hearing of the said applications is yet to be concluded. However, a prayer has been made for interim bail on behalf of the four accused persons., As stated above, by the Supreme Court of India's order dated 17 May 2021, the bail granted in favour of the four accused persons was stayed until further orders. We have heard Dr. Abhishek Manu Singhvi, Mr. Siddharth Luthra and Mr. Kalyan Bandopadhyay, Senior Advocates appearing for the applicants in the recalling applications; Mr. Tushar Mehta, Solicitor General of India appearing for the Central Bureau of Investigation; and Mr. Kishore Dutta, Advocate General for the State of West Bengal. This order is confined to the issue of whether interim bail should be granted to the accused persons as was done by the learned Court below. The accused persons are all advanced in age: the applicant in Criminal Application No. 1 of 2021 is about 62 years old; the applicant in Criminal Application No. 2 of 2021 is about 75 years old; the applicant in Criminal Application No. 3 of 2021 is around 80 years old; and the applicant in Criminal Application No. 4 of 2021 is about 75 years old. It is also not in dispute that the applicants suffer from various age‑related and other ailments. Presently, the applicants in Criminal Applications No. 2, 3 and 4 of 2021 are stated to be in a hospital while in judicial custody., It has not been disputed by the learned counsel for the Central Bureau of Investigation that the applicants have always co‑operated with the Investigating Officer. Three of the applicants are Members of the Legislative Assembly of West Bengal and two of them are also State Cabinet Ministers. One of the applicants is a former Mayor of Calcutta. They are all permanent residents of Calcutta. There is little chance of absconding or flight risk insofar as the applicants are concerned. The Solicitor General of India submitted that if the applicants are released on bail, they are likely to tamper with evidence and intimidate prosecution witnesses by using their high position and influence in society. This argument does not appeal to me. The case dates back to 2014 and the FIR to 2017. If the applicants had intended to tamper with evidence, they would have done so by now. Investigation against the present applicants is complete and the charge‑sheet has been submitted. It is also stated that further investigation against other accused persons is continuing. I do not understand how custodial detention of the applicants is necessary any more, or how further investigation against other accused persons would be hampered if the applicants are not detained., Additionally, the Honorable Supreme Court of India has said that in these times of the COVID‑19 pandemic, bail should be granted liberally unless custodial detention of the accused is absolutely essential. In view of the aforesaid, I am of the view that the applicants have made out a prima facie case for interim bail. Accordingly, the applicants, namely Firhad Hakim @ Bobby Hakim, Shri Sovan Chatterjee, Madan Mitra and Subrata Mukherjee, shall be released on bail upon furnishing bail bonds of Rs.50,000 (Rupees Fifty Thousand) each with two sureties of Rs.25,000 (Rupees Twenty‑Five Thousand) each to the satisfaction of the learned Chief Metropolitan Magistrate, Calcutta, and on the further condition that they must co‑operate with the Investigating Officer in respect of further investigation of the case and shall meet the Investigating Officer once every fortnight until further orders. The applicants shall also not, whether by themselves or through any other person, make any attempt to tamper with evidence or intimidate/threaten any of the prosecution witnesses. In case of breach of any of the said conditions, the interim bail hereby granted will be liable to be cancelled.
id_44	0	Writ Petition (Civil) No. ___ of 2021 filed by Sanser Pal Singh, Petitioner, versus Union of India and Another, Respondents., The petitioner submits the accompanying petition as urgent, seeking issuance of direction and action against erring court officers and staff., The petitioner requests that the petition be listed before the Honourable Delhi High Court at 10:30 a.m. on any date convenient to the Court., The Honourable Registrar of the Supreme Court of India issued Office Order No. F.34/Judl./2010 dated 28 October 2010. The Honourable District and Session Judge (Headquarters), Tis Hazari Courts, Delhi issued Circular No. 22418-22568/THC/2015 dated 05 August 2015. The same Judge issued Circular No. 58336-58476/CIS/Comp./2019 dated 21 October 2019. The Honourable Registrar General of the Delhi High Court issued Circular No. 1457/IT/DHC dated 25 November 2019. The Joint Registrar (Information Technology and Stenography) of the Delhi High Court issued Circular No. 699/IT/DHC dated 31 July 2020., The petitioner filed various applications under the Right to Information Act, 2005 on 5 December 2020 and 20 October 2020, and also lodged written complaints on 20 October 2020 to several Honourable District Judges, including the District and Session Judge (Headquarters), Tis Hazari Courts, Delhi. No effective action has been taken to date., By way of this Public Interest Litigation, the petitioner seeks issuance of an appropriate writ, direction or order directing the respondents to implement the directions contained in the above‑mentioned office orders and circulars, specifically to ensure that daily order sheets of the courts are uploaded on the respective online portals within the prescribed time limits, and to take appropriate action against erring court officers and staff in case of default., The petitioner, an advocate enrolled with the Bar Council of Delhi (enrollment number D/67/2008), has personal interest as a practising lawyer but files this petition in the interest of the justice delivery system and the public at large, without any ulterior motive., The source of the petitioner’s knowledge includes: (a) Office Order No. F.34/Judl./2010 dated 28 October 2010 issued by the Honourable Registrar of the Supreme Court of India; (b) Circular No. 1457/IT/DHC dated 25 November 2019 issued by the Honourable Registrar General of the Delhi High Court; (c) Circular No. 699/IT/DHC dated 31 July 2020 issued by the Joint Registrar (Information Technology and Stenography) of the Delhi High Court; (d) Circular No. 22418-22568/THC/2015 dated 05 August 2015 issued by the Honourable District and Session Judge (Headquarters), Delhi; (e) Circular No. 58336-58476/CIS/Comp./2019 dated 21 October 2019 issued by the Honourable District and Session Judge (Headquarters), Delhi; and (f) replies furnished by various Public Information Officers to the petitioner’s Right to Information applications., The petitioner submits that the respondents, being part of the Government machinery, fall within the definition of State under Article 12 of the Constitution of India and are therefore amenable to the writ jurisdiction of this Honourable Delhi High Court. The respondents are the governing, appointing and disciplinary authority of the court staff who are accountable for uploading order sheets on the court portals, and the salaries of such staff are paid by the respondents., The petitioner, practising in the Honourable Delhi District Courts, the Honourable Delhi High Court and various courts in Uttar Pradesh, is aggrieved by the non‑uploading of order sheets on the online portals, which forces him to inspect physical court files, consuming time and resources of both the petitioner and the courts., The direction contained in the Office Order dated 28 October 2010 of the Supreme Court of India mandates that upon pronouncement of any judgment or order, the same shall be uploaded at the earliest and in any case within forty‑eight hours of signing by the Honourable Judges. The Assistant Registrar cum Personal Secretary shall send the pen drive with the finalized judgment to the Court Master on the day fixed for pronouncement, and the Court Master shall ensure timely uploading and correction of any errors in the soft copy., The Honourable Delhi High Court issued Circular dated 25 November 2019 expressing concern over the non‑uploading of judgments and orders on the court website, causing inconvenience to lawyers, litigants and the public., The Honourable Delhi High Court also issued Circular dated 31 July 2020 directing the concerned officers to ensure uploading of judgments and orders on the court website., The Honourable District and Session Judge (Headquarters), Tis Hazari Courts, Delhi issued two circulars dated 05 August 2015 and 21 October 2019, reiterating the need for timely uploading of judgments and orders on the court website., The petitioner respectfully prays that this Honourable Delhi High Court may: (a) issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to comply with the directions contained in Annexures 3 to 7 and to upload daily order sheets within the prescribed time limit; (b) issue necessary guidelines in this regard; and (c) pass any other or further order as deemed fit and just in the interest of justice., Affidavit of Sanser Pal Singh, son of the late Sh. Baljor Singh, aged about 44 years, residing on the first floor, D‑4, Sunview Apartment, Burari, Delhi, stating that he is the petitioner, is well conversant with the facts and circumstances, and that the contents of the accompanying writ petition are true and correct to his knowledge., The petitioner affirms that the present petition is filed as a Public Interest Litigation, conforms to the Delhi High Court (Public Interest Litigation) Rules, 2010, and is not motivated by personal gain but solely by public interest.
id_44	1	Case Number Register DLNT020017092016 – North Rohini Court Complex (Metropolitan Magistrate Court). Filing Number 12724/2016, Filing Date 14‑03‑2016, Registration Number 5294437/2016, Registration Date 07‑11‑2016. First Hearing Date 17‑March‑2016, Next Hearing Date 21‑January‑2021. Stage of case: Prosecution Evidence. Court Number and Judge: 443‑Additional Chief Metropolitan Magistrate. FIR Details: First Information Report No. 836, Police Station Mukherji Nagar, Year 2015. Hearing history includes dates 01‑May‑2017, 12‑September‑2017, 19‑December‑2017, 02‑June‑2018, 17‑December‑2018, 21‑May‑2019, 27‑May‑2019, 07‑November‑2019, 17‑April‑2020, 05‑June‑2020, 31‑July‑2020, 30‑September‑2020, 21‑January‑2021, all marked as Prosecution Evidence., Case Number Register DLCT020259922019 – Central Tis Hazari Court (Metropolitan Magistrate Court). Filing Number 25985/2019, Filing Date 18‑October‑2019, Registration Number 13072/2019, Registration Date 18‑October‑2019. First Hearing Date 18‑October‑2019, Next Hearing Date 20‑September‑2021. Stage of case: Charge. Court Number and Judge: 353‑Metropolitan Magistrate. FIR Details: First Information Report, Police Station Delhi Cantt., Year 2019. Hearing history includes dates 04‑November‑2019, 04‑December‑2019, 05‑December‑2019, 12‑December‑2019, 18‑December‑2019, 24‑December‑2019, 18‑January‑2020, 04‑February‑2020, all recorded as Miscellaneous cases/purpose., Case Number Register DLSW020076422019 – South‑West Dwarka Court (Metropolitan Magistrate Court). Filing Number 7639/2019, Filing Date 07‑September‑2019, Registration Number not specified, Registration Date not specified. First Hearing Date 15‑February‑2019, Next Hearing Date 23‑April‑2021. Stage of case: Miscellaneous/Appearance. Court Number and Judge: 758‑Metropolitan Magistrate. FIR Details not provided. Hearing history includes dates 07‑July‑2019, 25‑July‑2019, 11‑September‑2019, 13‑November‑2019, 17‑March‑2020, 04‑July‑2020, 21‑September‑2020, 15‑January‑2021, 23‑April‑2021, all recorded as Miscellaneous/Appearance., Case Transfer Details – Transfer Regn. Number 7009/2019. Transfer Date 24‑July‑2019. From Court Number and Judge: 433‑Metropolitan Magistrate. To Court Number and Judge: 758‑Metropolitan Magistrate., Case Number Register DLET020006352018 – East Karkardooma Court (Metropolitan Magistrate Court). Filing Number 635/2018, Filing Date not specified, Registration Number 490/2018, Registration Date not specified. First Hearing Date 02‑February‑2018, Next Hearing Date 10‑February‑2021. Stage of case: Plaintiff/Petitioner Evidence. Court Number and Judge: 451‑Metropolitan Magistrate. FIR Details: First Information Report, Police Station Preet Vihar, Year 2015. Hearing history includes dates 02‑August‑2018, 09‑August‑2018, 27‑October‑2018, 16‑March‑2019, 06‑July‑2019, 22‑August‑2019, 23‑September‑2019, 02‑December‑2019, all recorded as Miscellaneous/Appearance., Case Number Register DLNT020061852016 – North Rohini Court Complex (Metropolitan Magistrate Court). Filing Number 21113/2016, Filing Date not specified, Registration Number 11282/2016, Registration Date not specified. First Hearing Date 12‑August‑2016, Decision Date 26‑October‑2020. Nature of disposal: Uncontested COMPROMISED. Court Number and Judge: 552‑Metropolitan Magistrate. Parties: Petitioner Vijay Kumar, Respondent Krishan Kant Kaushik. Acts: Negotiable Instruments Act. Hearing history includes dates 24‑October‑2016, 31‑January‑2017, 27‑April‑2017, 26‑July‑2017, 31‑October‑2017, 23‑January‑2018, 07‑March‑2018, 28‑July‑2018, 13‑September‑2018, all recorded as Miscellaneous cases/purpose., Case Number Register DLCT010118122019 – Senior Civil Judge cum Registrar Court, Central, Tis Hazari Court (Additional District Judge Court). Filing Number 650312019, Filing Date 10‑September‑2019, Registration Number not specified, Registration Date not specified. First Hearing Date 12‑September‑2019, Next Hearing Date 24‑February‑2021. Stage of case: Miscellaneous Arguments. Court Number and Judge: Additional District Judge, Commercial Court. Parties: Uttam Singh, Sh. Ajaib Singh, Sh. Surender Singh. Acts: Not specified. Hearing history includes dates 12‑September‑2019, 04‑October‑2019, 15‑November‑2019, 12‑January‑2020, 03‑March‑2020, 27‑July‑2020, 14‑October‑2020, 24‑February‑2021, all recorded as Miscellaneous arguments., Case Number Register DLCT030041652019 – Senior Civil Judge, Central, Tis Hazari Court (Civil Judge Court). Filing Number not specified, Registration Number 11602/2019, Registration Date 07‑June‑2019. First Hearing Date 07‑June‑2019, Decision Date 12‑December‑2019. Nature of disposal: Uncontested‑REJECT. Court Number and Judge: 275‑Civil Judge. Acts: Civil Cases. Hearing history includes dates 30‑July‑2019, 17‑September‑2019, 12‑December‑2019, all recorded as Miscellaneous cases/purpose., Complaint dated 24‑December‑2019 addressed to the Hon’ble Chief Justice of the Supreme Court of India and the Hon’ble Chief Justice of the Delhi High Court by Advocate Sanser Pal Singh (Enrollment No. D/67/2008). The complainant alleges that court staff of various district courts in Delhi have repeatedly failed to upload order sheets on the official e‑Courts server despite directions. The complaint requests that appropriate legal and departmental action be taken against erring court staff. The complainant also seeks clarification on whether it is mandatory to upload all order sheets of courts situated at Tis Hazari Courts, the time period fixed for such uploads, and the name, designation and address of the person accountable for uploading order sheets., Right to Information (RTI) applications filed by Advocate Sanser Pal Singh under the Right to Information Act 2005. The first application (RTI No. 10703) was filed on 24‑December‑2019 seeking information on the mandatory upload of order sheets and the time period for such uploads. A reply was received on 23‑March‑2020. A second application (RTI No. 10902) was filed on 03‑March‑2020 seeking the same information and the identity of the officer responsible for uploading order sheets. The reply, dated 13‑March‑2020, enclosed a circular dated 21‑October‑2019 and stated that the work is handled by DSAs/SAs posted in Server Room No.2:07, Computer Branch, Tis Hazari Courts. The applicant was also informed that the staff are directed to upload cause lists, daily orders and judgments at least three days in advance, daily orders on a daily basis and judgments within 48 hours of pronouncement, with zero tolerance for delay.
id_44	2	Filing Date: 23 September 2014. Registration Number: 525692/2016. Registration Date: 29 September 2014. CNR Number: OLCT020051832014 (Note the CNR number for future reference). First Hearing Date: 15 November 2014. Next Hearing Date: 24 December 2020. Court: Metropolitan Magistrate Court, Case Number 790. Respondent and Advocate: Tikkadutt Joshi. FIR Details: Police Station, FIR Number, Year. Hearing dates include 15‑11‑2014, 12‑12‑2014, 28‑01‑2015, 30‑04‑2015, 26‑06‑2015, 14‑08‑2015, 03‑10‑2015, 23‑11‑2015, 09‑02‑2016, 30‑04‑2016, 05‑08‑2016, 02‑12‑2016, 18‑02‑2017, 06‑05‑2017, 23‑09‑2017, 30‑01‑2018, 23‑01‑2018, 25‑06‑2019, 18‑07‑2019, 23‑11‑2019, 01‑10‑2019, 20‑11‑2019, 23‑01‑2020, 17‑03‑2020, 01‑05‑2020, 09‑09‑2020, 24‑12‑2020. The proceedings involved appearances, prosecution evidence, and statements of the accused before the Metropolitan Magistrate Court., Case Transfer Details: Transfer Number 1525692/2019. Transfer Date: 02 May 2019. From Court: Metropolitan Magistrate Court 511, Judge: Chief Metropolitan Magistrate, North West, Rohini Court Complex, Delhi. To Court: Metropolitan Magistrate Court 790, Judge: Chief Metropolitan Magistrate, North West, Rohini Court Complex, Delhi. CNR Number: DLNW020138872016 (Note the CNR number for future reference). First Hearing Date: 26 October 2016. Next Hearing Date: 19 November 2020. Stage of Case: Miscellaneous Arguments. Court Number and Judge: 527 – Metropolitan Magistrate Court. Petitioner and Advocate: (details omitted). FIR Details: Police Station, FIR Number, Year. Hearing dates include 01‑03‑2017, 16‑02‑2017, 04‑09‑2017, 18‑01‑2018, 29‑05‑2018, 26‑09‑2018, 26‑02‑2019, 11‑05‑2019, 24‑09‑2019, 07‑01‑2020, 24‑04‑2020, 21‑04‑2020, 12‑06‑2020, 07‑08‑2020. Interim Order Date: 06‑08‑2020. Additional Chief Metropolitan Magistrate: 519. The case involved multiple appearances and arguments before the Metropolitan Magistrate Court., Complaint: The applicant, Advocate Sanser Pal Singh, enrollment number D/67/2008, practising in Delhi, filed a Right to Information Act 2005 application on 24 December 2019 before the Public Information Officer, Office of the District and Sessions Judge (Headquarter), Tis Hazari Courts, Delhi, requesting the uploading of order sheets on the server of Delhi District Courts. The application is annexed as Annexure‑1. The Public Information Officer furnished a reply, annexed as Annexure‑2. A second Right to Information Act 2005 application was filed on 03 March 2020 before the same Public Information Officer; the application is annexed as Annexure‑3 and the reply dated 23 March 2020 is annexed as Annexure‑4. The complainant alleges that court staff of various district courts of Delhi have not uploaded order sheets of their respective courts on the official website, causing inconvenience to lawyers, litigants and the public. Printouts of the cases whose orders have not been uploaded are annexed. The complainant respectfully prays that all prescribed legal and departmental action be taken against the erring court staff who have failed to upload the orders on the server., Directions of the Competent Authority: (1) Upon pronouncement of any judgment or order in a civil‑administrative‑vigilance (CAV) matter, the judgment or order shall be uploaded on the website of the Delhi High Court at the earliest and in any case within forty‑eight hours of signing by the Honourable Judges of the concerned court. (2) The Assistant Registrar‑cum‑Personal Secretary (AR‑cum‑PS) shall send the pen drive containing the finalized judgment to the Court Master on the day fixed for pronouncement. The Court Master shall ensure that any correction made at the time of pronouncement is reflected in the soft copy before uploading, and shall intimate such corrections to the AR‑cum‑PS at the Residential Office of the concerned Honourable Judge. All concerned parties shall comply strictly with these directions. (Subhash Malik, Registrar (Judicial) and DR‑cum‑PPS to the Honourable Chief Justice of India)., Observations and Further Directions: It has been observed that despite earlier directions, some Private Secretaries, Senior Personal Assistants and Personal Assistants are not promptly uploading judgments and orders on the website of the Delhi High Court, causing inconvenience to lawyers, litigants and the public. All such officers shall immediately upload the judgment or order in PDF format after it is signed by the concerned Honourable Judge, Registrar General, Registrar or Joint Registrar (Judicial). The uploaded documents shall be digitally signed by the presiding officer or the Private Secretary/Nominated Officer using their digital signature certificate. If a mistake is made in uploading, the document may be removed or deleted only after a judicial order or appropriate directions from the Honourable Information Technology Committee. In case of a corrigendum, the corrected document shall be uploaded under the “Judgment Corrigendum” or “Order Corrigendum” link as applicable. The prescribed draft format for typing of orders generated through the software shall be used, and the watermark of the Delhi High Court logo shall be positively displayed on all judgments. All above directions shall be followed scrupulously. (Endorsement No. 24759‑66/IT/DHC, Dinesh Kumar Sharma, Registrar General, dated 25‑11‑2019)., Additional Instructions: Private Secretaries to the Honourable Chief Justice and Honourable Judges shall ensure that orders and judgments passed by the Chief Justice and Judges are regularly uploaded on the website after appending the digital signature. Senior Personal Assistants and Personal Assistants attached to the Registrar General, Registrars and Joint Registrars (Judicial) shall also ensure regular uploading. New web links for uploading orders and judgments from remote locations have been provided by the IT Cell; users may contact Mr. Sarsij Kumar, Joint Director (IT) (Mobile No. 965000723) or the IT Cell for assistance. The District and Sessions Judge (Headquarter), Tis Hazari Courts, Delhi, and the District and Sessions Judges of East, North, North‑West, Shahdara and West districts of Delhi are copied on this communication. The Chief Justice of India, the Honourable Chief Justice of the Delhi High Court, and the District and Sessions Judges of the respective districts are also copied.
id_44	3	It is impressed upon all judicial officers that it is their prime responsibility to ensure that the cause lists, daily orders and judgments of their court are timely sent on the server by the staff posted in their court on a daily basis. The cause list must be sent at least three days in advance. Daily orders must be sent on a daily basis and judgments must be uploaded within 48 hours of their pronouncement. There will be zero tolerance for delay or negligence in updating data on the server., Copy forwarded for information and necessary action to: Public Secretary to the Learned District and Sessions Judge (Headquarters), Tis Hazari Courts, Delhi; Public Secretary to the Learned District and Sessions Judge (West), Tis Hazari Courts, Delhi; Shri Sudhanshu Kaushik, Model Officer (Website), Central District, Delhi; Shri Naresh Kumar Malhotra, Model Officer (Website), West District, Delhi; all judicial officers posted in Tis Hazari Courts, Delhi; Website Committee for updating the website of Delhi District Courts., The judicial officers are requested to direct the concerned stenographers to upload daily orders and judgments on the same day without fail and to personally ensure the uploading. All concerned staff officials are conveyed that failure to update or upload daily orders or judgments on the website will invite strict disciplinary action., Application under the Right to Information Act 2005 for seeking information. 1. Name of Applicant: Sanser Pal Singh. 2. Father's Name: Late Sh. Baljinder Singh. 3. Address: Gali No. 32, A‑Block, Kaushik Enclave, Opposite Oscar Public School, Burari, Delhi‑110084. 4. Phone No.: 8287253851. 5. Kindly provide the following information: (A) Is it mandatory to upload all order sheets of courts situated at Tis Hazari Courts except exempted courts such as family courts? (B) If yes, is there a time period fixed to upload all order sheets of courts situated at Tis Hazari Courts? 6. Kindly send the information sought above in written format to the address of the applicant. 7. The fee for the application has been paid by Indian Postal Order No. 47F 288711 of Rs. 10., The fee for this application has been paid as follows: Indian Postal Order No. 47F 374211 of Rs. 10. Additional Indian Postal Order of Rs. 10 has been submitted for supply of copy of the requisite rule/notification/order., Response from the Information Technology Cell of the Delhi High Court: (a) Yes, there is a notification/order passed by the IT Cell of the Delhi High Court directing the concerned court staff of the Delhi High Court to upload order sheets of the Delhi High Court on the official website promptly. (b) Copies of the two latest circulars (each consisting of two pages) are enclosed. (c) Regarding a notice issued to the Registrar of the Patna High Court concerning a delay of 733 days in uploading a judgment on the High Court website, a copy of the notice is provided., Writ Petition (Civil) No. ___ of 2021 filed by Sanser Pal Singh, petitioner, versus Union of India and others, respondents. The petitioner seeks leave of the Hon'ble Delhi High Court to read the contents of the petition as part of the application, and requests exemption from filing certified copies of some annexures in the interest of justice., Email dated 12 February 2021 from Sanser Pal Singh to the standing counsel: The writ petition (Public Interest Litigation) vide diary number 199621/2021 has been filed before the Hon'ble Delhi High Court, has been passed and is likely to be listed for 15 February 2021 or thereafter. The petition in PDF format is attached for information and necessary action.
id_441	0	Case No. RC-10 of 2017, Order No. 59 dated 17 May 2021. The accused Firhad Hakim (also known as Bobby Hakim), Subrata Mukherjee, Madan Mitra and Sovan Chatterjee have been arrested in connection with the present case and detained in the Nizam Palace, the regional headquarters of the Central Bureau of Investigation. On behalf of the prosecution a prayer was made through email and the judge’s personal WhatsApp to produce the arrested persons before the Calcutta City Sessions Court in person. The parties agreed to a virtual hearing, which was allowed with the consent of the defence counsel who appeared before the Calcutta City Sessions Court and agreed to join the virtual hearing on their personal laptop or mobile phone. Since both the prosecution and the accused persons have agreed to hear the matter regarding the arrest and the bail prayer through virtual mode, with the logistical support of the Learned Chief Judge, City Sessions Court, the System Assistant and the District Sessions Assistant, the bail matter was heard virtually. The accused persons were taken into custody and remanded to judicial custody until 31 May 2021. Separate bail applications have been filed on behalf of Madan Mitra, Firhad Hakim, Subrata Mukherjee and Sovan Chatterjee along with various documents., At the outset of the argument, the Learned Special Prosecutor of the Central Bureau of Investigation pointed out that the original First Information Report has already been submitted before this court and the investigation of the present case has been completed against Madan Mitra, Firhad Hakim, Subrata Mukherjee, Sovan Chatterjee and SMH Mirza. The FIR alleges commission of offences under section 109 of the Indian Penal Code read with sections 11 and 13(2) read with 14(1)(d) of the Prevention of Corruption Act. The Investigating Officer has obtained the sanction for prosecution against the accused from the competent authority. The Learned Prosecutor also stated that further investigation is opened against other accused persons namely Mukul Roy, Apurapa Podder, Subendu Adhikary, Sougat Roy, Kakoli Ghosh Dastidar, Prasun Banerjee and Iqbal Ahmed., The Learned Prosecutor prayed for judicial custody of the arrested accused persons Madan Mitra, Firhad Hakim, Subrata Mukherjee and Sovan Chatterjee, alleging that they are influential and threaten the complainant and witnesses on each occasion. On behalf of Subrata Mukherjee, Madan Mitra and Firhad Hakim, Mr Kalyan Banerjee argued virtually that the sudden arrests are uncalled for and constitute a blatant violation of law. No prior notice was given to the petitioners prior to arrest, which tantamounts to violation of the relevant provisions of law and of the guidelines laid down by the Honourable Supreme Court of India. The Supreme Court, in suo motu Writ Petition No. 01 of 2021, categorically directed that no arrest or detention may be made during the COVID‑19 pandemic for offences punishable with imprisonment of seven years or less, and that decision is binding on the present case. The Court has also held that, irrespective of the gravity of charges, considering the devastating effect of the pandemic, the police should release the accused and bail should be granted., The Learned Senior Counsel further stated that Madan Mitra, Firhad Hakim and Subrata Mukherjee are elderly and highly susceptible to COVID‑19 due to their co‑morbidities; Madan Mitra has recently recovered from a severe COVID‑19 infection and remains weak. The sanction for submission of the prosecution report against the arrested persons was not obtained in accordance with law. The sanction was granted by the Honourable Governor without the opinion of the Council of Ministers, including the Chief Minister, violating Article 166(3) of the Constitution and Section 164 thereof. On 5 May the Government found that the Governor, without the consent of the Council of Ministers, accorded sanction on 7 May for submission of the prosecution report, which is arbitrary and unlawful. Numerous decisions of the Supreme Court hold that such sanction for prosecution against a member of the Legislative Assembly cannot be granted by the Governor without prior approval of the Council of Ministers., The Learned Senior Counsel also argued that once the charge sheet has been submitted and the investigation is over, there is no ground for continued detention and the accused should be granted bail as deemed fit by this court. On behalf of the accused Sovan Chatterjee, the Senior Counsel stated that his client was apprehended by the Central Bureau of Investigation without any prior notice of non‑cooperation or risk of absconding, and that he has a permanent residence in Calcutta. Moreover, Mr Sovan Chatterjee is a high‑risk diabetic patient undergoing medication; his detention in jail poses a serious risk of COVID‑19 infection, which could endanger his life. Since the charge sheet has already been submitted against the accused, further detention sought by the Central Bureau of Investigation is unnecessary., The Central Bureau of Investigation, however, categorically stated that the completion of investigation alone cannot be a ground for bail when the accused are highly influential within the state and have a history of threatening the complainant and witnesses, thereby potentially obstructing the truth before the Honourable Court. Accordingly, the Learned Special Prosecutor for the Central Bureau of Investigation vehemently opposed the bail prayer. The prosecution submitted several reported Supreme Court cases in virtual mode to support its contention., The Central Bureau of Investigation filed an application for adjournment of the present case on the ground that it intended to file written notes of objections to the arguments advanced by the learned advocates for the accused. The prayer for adjournment was considered and rejected, as the court had heard both sides virtually and found no ground for further hearing., Having perused the bail applications filed by the accused, the charge sheet submitted by the Investigating Officer, and all documents supplied by the accused along with the reported cases, the court finds that the investigation against Madan Mitra, Firhad Hakim, Subrata Mukherjee and Sovan Chatterjee is complete. Although there is a prayer for further investigation against other accused persons, the Investigating Officer has made no prayer for Central Bureau of Investigation custody of the arrested persons. Recent judgments of the Supreme Court have held that prison overcrowding, a phenomenon observed in several countries including India, increases the risk of COVID‑19 infection among inmates. The Court has directed authorities to de‑congest prisons to avoid such infections., Given that the purpose of investigation has already been fulfilled for the arrested persons Madan Mitra, Firhad Hakim, Subrata Mukherjee and Sovan Chatterjee, and there is no request for further Central Bureau of Investigation custody, a mere prayer for judicial custody cannot justify continued detention. Accordingly, the bail applications of the accused are allowed., The accused persons Madan Mitra, Firhad Hakim, Subrata Mukherjee and Sovan Chatterjee are hereby granted interim bail of Rs 50,000 each with two sureties of Rs 25,000 each, on the condition that they cooperate with the Investigating Officer in any further investigation and appear before the Investigating Officer once in a fortnight until further order, subject to the satisfaction of the Learned Chief Metropolitan Magistrate, Calcutta. In default, they will suffer judicial custody until 31 May 2021. A copy of this order shall be sent to the email IDs of all participants, including the Central Bureau of Investigation, and a hard copy shall be sent to the Learned Chief Metropolitan Magistrate, Calcutta for information and necessary action.
id_443	0	Date of decision: 07 May 2023. The petitioner, represented by Mr. Prateek Goswami, Advocate, Mr. Neeraj Gupta and Mr. Rajat Asija, Advocates, versus the respondent, represented by Mr. Shailender Dahiya, Advocate., The present petition, preferred by the estranged wife who is the respondent in HMA No. 711/2019, seeks to assail the order dated 18 October 2022 passed by the learned Family Court. By the impugned order, the Family Court rejected the petitioner's application seeking restoration of her right to cross‑examine her husband, who had appeared as Party Witness 1., The learned counsel for the petitioner submits that the Family Court rejected the petitioner's application seeking restoration of her right to cross‑examine the respondent, who was examined as Party Witness 1, without appreciating the fact that the petitioner had been granted only one opportunity to cross‑examine him on 30 May 2022, on which date the petitioner's counsel had sought time as he had not been provided with a copy of the respondent's affidavit (Party Witness 1's evidence by way of an affidavit)., Furthermore, the petitioner's counsel on that date was required to attend to a matter before the High Court and therefore sought an adjournment, which request was denied without any justifiable reasons and her right to cross‑examine Party Witness 1, who was the most crucial witness, closed on the same day. The petitioner's application seeking permission to cross‑examine the respondent, moved on the same date, was rejected on 25 July 2022, compelling the petitioner to move another application seeking restoration of her right to cross‑examine Party Witness 1, which has also been rejected by the impugned order., He submits that while passing the impugned order, the Family Court failed to appreciate that the matter was for the first time listed for the evidence of the respondent on 20 April 2022, on which date the same was transferred from one court to another. It is only on this count that the petitioner could not be represented through counsel on the said date when the matter was adjourned to 30 May 2022, on which date the Court hastened to close her right to cross‑examine the respondent, Party Witness 1. The petitioner's request for restoration of her right to cross‑examine the respondent was rejected even though she had offered to pay costs for the inconvenience caused to the respondent., On the other hand, Mr. Dahiya, learned counsel for the respondent, supports the impugned order by contending that once it was found that not only was the petitioner taking contradictory stands before the Court, but even her counsel had been adopting a defiant attitude, the Family Court was justified in rejecting her application seeking recall of Party Witness 1 for cross‑examination. He further submits that a copy of the evidence by way of the respondent's affidavit had been duly forwarded on the registered email ID of the petitioner's counsel on 12 April 2022 itself and therefore his plea that a copy of the same was not available with him on 30 May 2022 was rightly disbelieved by the Family Court. He, therefore, prays that the petition be dismissed., Having considered the submissions of the learned counsel for the parties and perused the record, even though I find that the manner in which the matter was conducted on behalf of the petitioner before the Family Court cannot be appreciated, the fact remains that it was only on one date, i.e., 30 May 2022, that the petitioner failed to carry out the cross‑examination of Party Witness 1. It needs to be noted that it is not even the respondent's case that the matter was earlier fixed for cross‑examination or that the petitioner had been taking repeated dates for the said purpose. I am of the considered view that even if the plea of the petitioner's counsel about his not having received the evidence by way of affidavit through email or of being busy in a matter before the High Court were to be discarded, the Family Court ought to have appreciated that grave and irreparable prejudice would be caused to the petitioner by closing her right to cross‑examine Party Witness 1, who was admittedly the most crucial witness in the case. In matters like the present when the Court is dealing with petitions pertaining to Family Law, where the parties are already at loggerheads with each other, even though the matters are required to be decided expeditiously, the Court is expected not to adopt such a hyper‑technical approach and close the right of the parties to cross‑examine in such a hurried manner., I am, therefore, of the view that the petition deserves to be allowed and the petitioner should be granted one opportunity to cross‑examine the respondent/Party Witness 1. Taking into account the averments made by the petitioner and her counsel in the pleadings, the same is to be subject to costs of Rupees 25,000. Both sides agree that this amount be paid to any deserving widow who lost her husband during the pandemic of Covid‑19., The impugned order is, accordingly, set aside subject to payment of costs of Rupees 25,000. The petitioner is directed to pay the aforesaid costs to Smt. Preeti Singh Solanki, an unemployed widow who lost her husband during the Covid‑19 pandemic, by remitting the same to her bank account number 5745470231, IFSC Code KKBK0004618, CRN 457721571, maintained with Kotak Mahindra Bank., The petitioner, subject to payment of costs as directed hereinabove, is granted one opportunity to cross‑examine Party Witness 1. Since the matter is stated to be listed before the Family Court on 24 July 2023 for further proceedings, the respondent/Party Witness 1 will remain present on that date for cross‑examination by the petitioner's counsel. It is made clear that the Family Court will not grant any adjournment to the petitioner for the purpose of cross‑examination and in case she or her counsel fails to cross‑examine the respondent/Party Witness 1 on 24 July 2023, i.e., the next date, no further time will be granted to the petitioner., However, in case the Family Court finds that the cross‑examination of Party Witness 1 cannot for any justifiable reasons be concluded on the same date, it will be open for the Family Court to grant another date for completion thereof. The petition stands disposed of in the aforesaid terms.
id_444	0	Arising out of Police Station Case No. 758 of 2019, Thana Forbesganj, District Araria, the State of Bihar (Petitioner) versus Amar Kumar (Respondent). Appearance for the petitioner: Mr. Krishna Chandra, Advocate. Appearance for the respondent: Mr. Abhimanyu Sharma, Additional Public Prosecutor. Appearance for the appellant: Mr. Krishna Chandra, Advocate. Appearance for the respondent: Mr. Abhimanyu Sharma, Additional Public Prosecutor., The Death Reference No. 9 of 2021 and Criminal Appeal (DB) No. 728 of 2021 were heard together and are being disposed of by this common judgment. We heard Mr. Krishna Chandra, learned Advocate for the appellant, and Mr. Abhimanyu Sharma, learned Additional Public Prosecutor for the State. The sole appellant was convicted under Sections 302/34, 201/34 and 376D/34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012, by a judgment dated 08‑10‑2021 passed by the learned Special Judge (POCSO) cum Additional District and Sessions Judge‑VI, Araria, in Special POCSO Act Case No. 46 of 2019 arising out of Forbesganj (Simraha) Police Station Case No. 758 of 2019. On the same day, he was sentenced to death by hanging. The Special Court also directed destruction of seized articles, if any, and referred the matter to the District Legal Services Authority for granting compensation of Rs 10,00,000 to the family of the victim., A twelve‑year‑old girl was allegedly gang‑raped and then killed, her body being thrown on a road near a temple where she and her grandmother (PW‑1) had gone to witness a fair organized on the occasion of the Nagpanchami festival. The occurrence took place on 05‑08‑2019, but the FIR was registered after the dead body was recovered on 06‑08‑2019. The dead body was sent for post‑mortem examination on the same day., The FIR lodged by PW‑1, the grandmother of the victim, was registered against unknown persons. In the statement recorded by Sub‑Inspector D.C. Mishra (not examined), she alleged that her granddaughter, who was residing with her, had accompanied her to the fair but disappeared there. A frantic search was made without success. On 06‑08‑2019, the grandson of the brother of PW‑1 informed her that the dead body of the victim was lying on the road near the temple, naked. She, accompanied by her husband (PW‑2), went to the place, identified the body as that of her granddaughter, and reported that unknown persons had molested and killed her. Blood drops were observed below the victim’s waist. The local mukhiya informed the local administration, after which the police arrived, seized the body and sent it for post‑mortem examination., On the basis of PW‑1’s statement, Forbesganj (Simraha) Police Station Case No. 758 of 2019, dated 06‑08‑2019, was instituted for offences under Sections 302, 201, 354A, 34 of the Indian Penal Code and Section 8 of the Protection of Children from Sexual Offences Act, 2012, against unknown persons. After investigation, the police submitted a charge‑sheet against the appellant, charging him with offences under Sections 302, 376D, 201/34 of the Indian Penal Code and Section 4 of the Protection of Children from Sexual Offences Act, 2012. The case was tried by the Special POCSO Court., The Trial Court, after examining thirteen prosecution witnesses and none on behalf of the defence, convicted and sentenced the appellant as aforesaid. We express dissatisfaction with the manner in which the Special Court handled the case, convicting and sentencing the appellant to death without adhering to basic principles of law., The circumstances of the appellant’s arrest are noteworthy. At the place where the dead body was found, a sniffer dog was brought, which first scented the body and then moved into a villager’s house. Finding nothing incriminating there, the dog entered the appellant’s house, where the appellant was arrested. The Trial Court listed the appellant’s alleged confinement inside a locked room as evidence, yet there is no proof that the door was broken open for his arrest. Thus, the prosecution’s case rests largely on the sniffer dog’s tracking trajectory., There is no record of the dog’s training, the handler’s qualifications, or an assessment of the dog’s probative value. Four pairs of slippers were found near the dead body, and a purse and a chain were also recovered. The investigating agency concluded that one of the slippers belonged to the appellant. From the appellant’s house, a pair of soiled cream‑coloured jeans was recovered, but it was never sent for forensic examination. No medical test under Section 53A of the Criminal Procedure Code was conducted on the appellant, and he was granted bail during the investigation by the High Court., The Trial Court listed the following as circumstantial evidence: (a) the victim had gone to the fair with her grandmother, a fact confirmed by PW‑1 and never rebutted; (b) a pair of slippers of the appellant was found near the dead body (Exhibit‑1 to 1/4); (c) PW‑1 and other witnesses reported blood spots on the lower part of the victim’s body; (d) soiled clothes recovered from the appellant’s house were alleged to be the jeans he wore at the time of the occurrence; and (e) the appellant was found locked inside his house, requiring the door to be forced open for his arrest., These alleged circumstances are either legally irrelevant or factually incorrect. The victim’s attendance at the fair with her grandmother does not constitute incriminating evidence against the appellant. There is no proof that the slippers found near the dead body belonged to the appellant or that he wore them on the day of the occurrence. Regarding the alleged blood on the victim’s body, the medical evidence does not support this claim; only PW‑1’s statement mentions spotting blood droplets, and the inquest report makes no reference to blood stains. The soiled pair of jeans was never identified as the appellant’s clothing, nor was it subjected to forensic analysis. Moreover, one witness to the seizure list stated that only the appellant was arrested after the sniffer dog entered his house, and nothing else was recovered., The post‑mortem examination began at 10:17 P.M. on 06‑08‑2019. The doctor found the entire body to be swollen, with the foreskin of the left hand completely scaled off due to decomposition. No internal abnormalities were detected; all organs were intact in situ. The viscera were preserved, and no cause of death could be ascertained. The doctor stated that no definitive opinion could be given regarding the cause of death, noting that the time elapsed since death and the post‑mortem examination was within 72 hours. No examination of the genitalia was reported, suggesting that the body examined may not have been that of the alleged rape victim, as a thorough examination of the genitals is the first step in suspected rape cases., The forensic analysis of the viscera revealed no metallic, alkaloidal, glycosidal, pesticidal or volatile poison in the samples sent to the laboratory. Consequently, the cause of death remains undetermined, and there is no evidence of any rape., Medical evidence of rape is not indispensable if other evidence exists, but in this case no one witnessed the alleged offence, nor was the appellant seen taking the victim away. PW‑1 claimed that while she was trying to lay a mattress on the door of the temple, the victim disappeared and was not found in the vicinity. The complete absence of any evidence of molestation or rape raises doubts about whether the body examined was indeed the corpus delicti of the case., The deposition of the doctor who conducted the post‑mortem shows that he did not receive a requisition for the examination, and the body was presented to him in a sealed cover without identification. He later corrected this, stating the body was brought in open. No external injuries or signs of rape were observed, and rigor mortis indicated the body had been dead for about 24 hours. The exact cause of death was not found., The identification of the dead body before the doctor is unclear. The police’s reliance on the sniffer dog’s tracking to close the investigation, without corroborative identification, is questionable. The trial court appears to have accepted this narrative without independent verification., The appellant’s alleged confession was recorded before a Block Development Officer, whose name appears in the investigation, but no official emblem of the officer is present on the record. The authenticity of this confession is therefore doubtful., The reliance on sniffer dog evidence raises serious legal concerns. The Supreme Court in Abdul Rahim Murtaza Dafedar v. State of Maharashtra (AIR 1970 SC 283) held that a dog cannot be cross‑examined and its handler’s testimony is merely hearsay. Moreover, accepting dog tracking as conclusive evidence risks infringing on a person’s liberty based on an untested inference. The Supreme Court in Rajendra Prahladrao Wasnik v. State of Maharashtra (2019) 12 SCC 460 emphasized that Section 53A of the Criminal Procedure Code requires a medical examination when reasonable grounds exist to believe a rape has occurred. The Supreme Court in Gade Lakshmi Mangraju @ Ramesh v. State of Andhra Pradesh (2001) 6 SCC 205 warned of inherent frailties in evidence based on sniffer or tracker dogs. From a scientific standpoint, the reliability of police dogs and their handlers remains uncertain., Witness testimonies further undermine the prosecution’s case. PW‑1 later claimed that four boys were present at the temple fair and that the appellant had organized the fair, but she later contradicted herself. PW‑2, the husband, identified a pair of sandals as belonging to the appellant but admitted that such sandals could not be unique. PW‑4, a maternal uncle of the deceased, stated that apart from arresting the appellant, nothing else was recovered and that he was made to sign a blank paper. PW‑5 did not support the prosecution’s version of recovery. PW‑6 observed the sniffer dog entering another house where nothing incriminating was found; only thereafter did the dog enter the appellant’s house, where the appellant was found locked inside a room. The lock was broken, but no record of this action was prepared., Kanhiya Kumar Das (PW‑9), a witness to the seizure list, complained that he was asked to sign a blank paper by the police. The investigator (PW‑10) admitted that he had not recorded the statement or prepared the inquest report, and that the confession of the appellant was recorded in the presence of the Block Development Officer, who signed but did not affix his official seal. No description of seized articles appears in the charge‑sheet, and the seizure list prepared by Sub‑Inspector D.C. Mishra was not examined. Another seizure list prepared by M.A. Haidri of Simraha Police Station lacks context, and the original post‑mortem report was not available in court., The appellant’s statement recorded under Section 313 of the Criminal Procedure Code was not adequately considered. It is well‑settled that a trial court must put all incriminating circumstances to the accused for his response. In this case, many of the circumstances relied upon by the trial court were never put to the appellant, and his answers were not taken into account., None of the circumstances presented to the appellant were proved at trial, and the mandate of Section 53A of the Criminal Procedure Code was completely ignored. Although the Supreme Court in Rajendra Prahladrao Wasnik v. State of Maharashtra (2019) 12 SCC 460 held that medical examination is not mandatory, it emphasized that reasonable grounds must exist to believe a rape occurred before deciding not to examine the accused. No such grounds were established, and the doctor did not examine the genitals of the twelve‑year‑old victim., The trial court ignored the Supreme Court’s observations in Sharad Birdhi Chand Sarda v. State of Maharashtra (1984) 4 SCC 116 regarding the principles of circumstantial evidence: (i) the circumstances must be fully established; (ii) they must be consistent only with the hypothesis of guilt; (iii) they must be of a conclusive nature; and (iv) there must be a chain of evidence so complete as to leave no reasonable ground for innocence. The trial court, however, relied on disputed and unproved facts to reach a finding of guilt., For the reasons stated above, we set aside the judgment and order of conviction and sentence of the appellant, acquit him of all charges, and direct his immediate release from jail. The reference is dismissed, the appeal is allowed, and a copy of this judgment shall be dispatched to the Superintendent of the concerned jail for compliance. The records of this case are to be returned to the trial court forthwith, and any interlocutory applications, if any, are disposed of accordingly.
id_446	0	Leave granted., After the Scheduled Offence went through an elongated judicial journey, it is the turn of the Enforcement Case Information Report under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the Prevention of Money Laundering Act, 2002). What is under challenge before us are the orders passed by the majority of the Judges when a reference was made on a difference of opinion by the Division Bench of the Madras High Court, while dealing with a writ petition filed seeking a writ of Habeas Corpus in pursuance of an arrest made, followed by a remand to judicial custody, and then to the authority concerned. Though arguments at length are made at the Bar, the principal issue is only on the remand in favour of the investigating agency, without seeking any specific prayer challenging the remand orders, though additional grounds were raised., Heard Shri Kapil Sibal and Shri Mukul Rohatgi, learned Senior Advocates appearing for the appellant, and Shri Tushar Mehta, learned Solicitor General appearing for the respondents. We have also perused the documents and the written arguments filed., We shall first give a narration of the basic facts sufficient enough to decide the lis. For a proper understanding, we adopt the appeals arising out of Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 as the lead case. The appellant in the appeals arising out of Special Leave Petition (Criminal) Nos. 8652-8653 of 2023 is none other than the wife of the appellant in the appeals arising out of Special Leave Petition (Criminal) Nos. 8939-8940 of 2023, being the writ petitioner before the Madras High Court. Incidentally, the respondents, though filed separate appeals arising out of Special Leave Petition (Criminal) Nos. 7437 of 2023, 7460 of 2023, and 8750 of 2023, are appositely referred to as respondents., The appellant is a Cabinet Minister of the State of Tamil Nadu. After a seesaw legal battle, his status remains that of an accused pursuant to the orders passed by the Supreme Court of India in the Scheduled Offence., A case was registered in Enforcement Case Information Report No. 21 of 2021 by Respondent No.1 against the appellant and others. It was followed by summons dated 04.08.2021 and 07.10.2021 requiring the attendance of the appellant. Further summons were issued on 07.03.2022 and 24.07.2022. A search was conducted by the authorised officer invoking Section 17 of the Prevention of Money Laundering Act, 2002 at his premises on 13.06.2023., Finding that the appellant was not extending adequate cooperation, the authority invoked Section 19 of the Prevention of Money Laundering Act, 2002 by way of an arrest on 14.06.2023. An arrest memo was also prepared. Though grounds of arrest were furnished, the appellant declined to acknowledge them. The information pertaining to the arrest was also intimated to his brother, sister‑in‑law and wife., The appellant was taken to the Tamil Nadu Government Multi Super Speciality Hospital, Chennai as he complained of chest pain. His wife rushed to the Madras High Court and filed a Habeas Corpus Petition being Habeas Corpus Petition No. 1021 of 2023 on the very same day. In the meanwhile, the respondents filed an application before the learned Principal Sessions Judge seeking judicial custody for 15 days. An order of remand was passed sending him to judicial custody till 28.06.2023. At the request of the Special Public Prosecutor, Enforcement Directorate, Chennai filed along with the Enforcement Case Information Report, Remand Report and other documents. I came down to Tamil Nadu Government Multi Super Speciality Hospital, Omanthur, Chennai by 3.30 p.m. Dr. J. Cecily Mary Majella, Associate Professor, Cardiology certified that the accused Senthil Balaji is conscious and oriented. Then I met Thiru V. Senthil Balaji, the accused in the ICU ward of the said hospital and enquired in the presence of Dr. J. Cecily Mary Majella. The Special Public Prosecutor and the Senior Advocate Mr. N. R. Elango, who appeared for the accused, were heard. Grounds of arrest were said to have been conveyed by the investigating officer, but the accused denied acknowledging and signed the same. Relatives of the accused were not available at the place of arrest and were informed through SMS and email since they did not pick up the phone call. Proof has also been produced. I informed the accused about the grounds of arrest and his right to legal assistance. The accused complained that he was manhandled by the Enforcement Directorate officials but no complaint of any bodily injury. The prosecution has established a prima facie case against the accused for the offences under section 3 of the Prevention of Money Laundering Act, punishable under section 4 of the said Act. Hence, the accused is remanded to judicial custody till 28.06.2023., Thereafter, the appellant filed an application for bail which was dismissed on 16.06.2023 by a speaking order considering all the contentions. This has attained finality. The respondents made a further application seeking custody for further investigation., All the above activities took place on a single day, except the dismissal of the application for bail. The Habeas Corpus petition filed by the appellant’s wife was taken up for hearing on 15.06.2023 on an urgent mention, whereby the appellant was directed to be shifted to a private hospital of his choice to undergo a bypass surgery. A surgery was accordingly done., On the application filed by the respondents, the learned Principal Sessions Judge granted custody to them for a period of 8 days, while dismissing the bail application as noted earlier. In the result, the petition is allowed and Shri Karthik Dasari, Deputy Director, Directorate of Enforcement, Chennai is permitted to have the custody of the accused Shri V. Senthil Balaji for 8 days from 16.06.2023 with the following conditions: (1) The Deputy Director of Enforcement Directorate shall not remove the accused from the Kaveri Hospital, who has been admitted for treatment. (2) The Deputy Director of Enforcement Directorate shall interrogate the accused at the hospital taking into consideration his ailments and the treatment given to him after obtaining necessary opinion from the team of doctors who are giving treatment to him about his fitness for interrogation. (3) The Deputy Director of Enforcement Directorate shall interrogate the accused without any hindrance to the health conditions of the accused and also the treatment provided to him. (4) The Deputy Director of Enforcement Directorate is directed to provide sufficient food and shelter to the accused and they should not use third degree method and should not cause any cruelty to the accused. (5) No threat of coercion will be made on the respondent/accused. (6) The family members of the accused are to be permitted to see the accused during the custody, subject to medical advice. (7) The Deputy Director of Enforcement Directorate is directed to provide necessary security for the accused while he is in custody. (8) The Deputy Director of Enforcement Directorate is directed to produce the accused on 23.06.2023 by 3.00 p.m. through video conference and the petition is ordered accordingly., After filing an application on 17.06.2023, seeking a direction that the first 15 days custody period should not come in the way of the actual period of custody, before the learned Principal Sessions Judge, the respondents approached the Supreme Court of India in Special Leave Petition (Criminal) No. 7437 of 2023. Incidentally, another Special Leave Petition (Criminal) No. 7460 of 2023 was filed assailing the conditions imposed in the order dated 16.06.2023 by which 8 days custody was granted as aforesaid in favour of the respondents., Taking note of the pendency of the Habeas Corpus petition, while keeping the Special Leave Petitions pending, the following order was passed: We have heard Mr. Tushar Mehta, learned Solicitor General of India on behalf of the petitioner and Shri Neeraj Kishan Kaul, Devadatt Kamat and Vikram Chaudhry, learned Senior Counsel, who are on caveat, on behalf of the respondents. The Madras High Court is yet to render its final opinion on the following issues: (i) maintainability of the Habeas Corpus Petition; (ii) the exclusion of the period of treatment undergone by the detenu from the period of custodial interrogation. Since both these issues are likely to be examined by the Madras High Court on the date fixed, i.e., 22-06-2023 or soon thereafter, we deem it appropriate to post these Special Leave Petitions for further hearing on 04-07-2023. It is clarified that the pendency of these Special Leave Petitions shall not be taken as a ground to adjourn the matter, pending adjudication before the Madras High Court. The observations made by the Madras High Court in the interim order dated 15-06-2023 or any oral observation made by the Supreme Court of India during the course of hearing shall have no bearing on the merits of the case., In the meanwhile, in the pending Habeas Corpus petition additional grounds were raised questioning the orders of the learned Principal Sessions Judge granting both judicial and police remand, no specific prayer as such was sought for., On 22.06.2023, the respondents filed an application before the Madras High Court to exclude the period of hospitalisation for the purpose of counting custody period as no actual custody was taken., By the order dated 04.07.2023, the judges of the Division Bench differed with each other. Justice Nisha Banu allowed the Habeas Corpus petition, though either of the remand orders were not challenged: In the result, the Habeas Corpus Petition is allowed in the following terms: (1) The writ of Habeas Corpus Petition is maintainable; (2) Enforcement Directorate is not entrusted with the powers to seek police custody under the Prevention of Money Laundering Act, 2002; (3) Miscellaneous petition filed by Respondent 1 seeking exclusion of the period is dismissed., Justice D. Bharata Chakravarty recorded his views differing with the other learned Judge: (i) The Habeas Corpus Petition in Habeas Corpus Petition No. 1021 of 2023 shall stand dismissed; (ii) The period from 14.06.2023 till such time the detenu/accused is fit for custody of the respondent shall be deducted from the initial period of 15 days under Section 167(2) of the Code of Criminal Procedure; (iii) The detenu/accused shall continue the treatment at Cauvery Hospital until discharge or for a period of 10 days from today whichever is earlier and thereafter, if further treatment is necessary, it can be only at the prison or prison hospital as the case may be; (iv) As and when he is medically fit, the respondents will be able to move the appropriate Court for custody and the same shall be considered on its own merits in accordance with law except not to be denied on the ground of expiry of 15 days from the date of remand; (v) However, there shall be no order as to costs., On a reference made, the third learned Judge, Justice C. V. Kartikeyan, extended his concurrence with Justice D. Bharata Chakravarty: (i) Whether Enforcement Directorate has the power to seek custody of a person arrested? The answer given by the Supreme Court of India is Yes in alignment with the views expressed by the Hon’ble Justice D. Bharata Chakravarty. (ii) Whether the Habeas Corpus Petition itself is maintainable after a judicial order of remand is passed by a court of competent jurisdiction? The petition would be maintainable in exceptional circumstances, but this case does not attract any exceptional circumstance and consequently since an order of remand had been passed by a court of competent jurisdiction, the relief sought in the petition cannot be granted. I would align with the view expressed by the Hon’ble Justice D. Bharata Chakravarty with respect to this issue. (iii) The consequential issue is as to whether Enforcement Directorate would be entitled to seek exclusion of time for the period of hospitalization beyond the first 15 days from the date of initial remand., However, the learned Judge sent the file back to the Division Bench to adjudicate upon the date of custody to be reckoned followed by the actual days that might be required. Aggrieved, the appellant and his wife filed Special Leave Petition (Criminal) Nos. 8939-8940 of 2023 and Special Leave Petition (Criminal) Nos. 8652-8653 of 2023 respectively. With the limited grievance over the file being sent back by the third learned Judge, the respondents filed Special Leave Petition (Criminal) No. 8750 of 2023. Two more Special Leave Petitions have been filed by respondents being Special Leave Petition (Criminal) Nos. 7437 of 2023 and 7460 of 2023, challenging the interim order of the Madras High Court and the conditions imposed by the learned Principal Sessions Judge while granting remand and for the exclusion of 15 days., We have had the pleasure of hearing Shri Kapil Sibal and Shri Mukul Rohatgi, learned Senior Advocates appearing on behalf of the appellant, at length. We would like to summarise their submissions in a nutshell together., There is no power vested under the Prevention of Money Laundering Act, 2002 to seek custody in favour of an authorised officer. Such an authorised officer is not a police officer and therefore, Section 167(2) of the Code of Criminal Procedure, 1973, with particular reference to a remand in his favour, is not available. Custody under Section 167(2) of the Code of Criminal Procedure, 1973 can only be in favour of a police officer and not any other agency. There is no investigation under the Prevention of Money Laundering Act, 2002 since it is to be taken as synonymous with inquiry. After the completion of 24 hours from the arrest, there cannot be further custody in favour of an officer. Being a beneficial legislation, non‑compliance of Section 41A of the Code of Criminal Procedure, 1973 would vitiate the orders of remand. The learned Principal Sessions Judge passed a cryptic order ignoring the clear non‑compliance of Section 19 of the Prevention of Money Laundering Act, 2002., The outer limit of 15 days of custody to the police from the date of arrest has worked itself out. Therefore, no court can extend it under any circumstance. The majority judgments did not apply the decision in CBI v. Anupam J. Kulkarni (1992) 3 SCC 141 as followed thereafter by this Court, in the correct perspective. Reliance upon CBI v. Vikas Mishra, (2023) 6 SCC 49 is misplaced, with the decisions of the larger Bench and the Coordinated Bench acting as binding precedents. A writ of Habeas Corpus is certainly maintainable in the present case in view of procedural non‑compliance. Provisions of both the Code of Criminal Procedure, 1973 and the Prevention of Money Laundering Act, 2002 ought to be construed and interpreted strictly. There is a total non‑application of mind on the part of the learned Principal Sessions Judge in passing the orders of remand., The Madras High Court has committed an error in not appreciating the legislative scheme and the timeline in the light of Article 22 of the Constitution of India, 1950. Articles 21 and 22 of the Constitution of India, 1950 and Section 167 of the Code of Criminal Procedure, 1973 ought to be read harmoniously. It is not for the courts to legislate to provide extension of the period of 15 days. The decision rendered in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440 actually enures to the benefit of the appellant which the majority judgments failed to appreciate. Since the arrest was based upon the materials, over which a satisfaction was arrived at creating reasons to believe, the statute does not facilitate any more custodial interrogation. The appellant can very well be questioned and interrogated in prison., Shri Tushar Mehta, learned Solicitor General, while repelling the contentions raised, made further submissions., The writ petition, as filed invoking Article 226 of the Constitution of India, 1950 is not maintainable. There was a legal arrest following which the arrested person was forwarded to the learned Principal Sessions Judge. Orders were passed on merit, both for judicial custody and thereafter in favour of the respondents. The writ petition was filed only challenging the arrest as illegal. When it was taken up on 15.06.2023 the accused was produced already. Thus, even on that day the prayer was not in subsistence. The respondents did not get the actual custody. The conditions attached are challenged before the Supreme Court of India. Even the appellant has stated in his arguments that he was not to be questioned during his so‑called ailment in the hospital but was ready thereafter. The word custody cannot be given a restrictive meaning. The Prevention of Money Laundering Act, 2002 is a special Act having its own distinct characteristics. It is a sui generis legislation. It provides for an elaborate mechanism for a thorough investigation through search, seizure and arrest. Section 65 of the Prevention of Money Laundering Act, 2002 clearly speaks of the overriding effect over the Code of Criminal Procedure, 1973. There is due compliance of Section 19 of the Prevention of Money Laundering Act, 2002. The appellant has been hoodwinking the investigating agency, as rightly taken note of by the third learned Judge of the Madras High Court., The application of Sections 167(1) and (2) of the Code of Criminal Procedure, 1973 to an investigation in connection with an offence under the Prevention of Money Laundering Act, 2002, is no longer res integra in view of the decisions rendered in Deepak Mahajan (supra), followed by Ashok Munilal Jain v. Directorate of Enforcement., The reliance placed by the appellant on Anupam J. Kulkarni (supra), as followed thereafter by this Court is misconceived. In the said case, the facts are different as it was a case of counting the days after the arrestee was given custody in favour of the investigating agency, whereas no such custody has ever been made to the respondents. The principle governing actus curiae neminem gravabit was not the subject matter of those decisions. All legal actions taken by the appellant lack bona fides, they are solely to evade custody. The appellant has not even challenged the rejection of the bail wherein similar contentions have been taken note of and rejected., To sum up, it is submitted that, both on facts and law, the appellant does not have a case as there is a complete abuse of the process of law. Incidentally, it is prayed that the Special Leave Petitions filed by the respondents will have to be allowed giving sufficient number of days for further investigation., A writ of Habeas Corpus shall only be issued when the detention is illegal. As a matter of rule, an order of remand by a judicial officer, culminating into a judicial function cannot be challenged by way of a writ of Habeas Corpus, while it is open to the person aggrieved to seek other statutory remedies. When there is a non‑compliance of the mandatory provisions along with a total non‑application of mind, there may be a case for entertaining a writ of Habeas Corpus and that too by way of a challenge., In a case where the mandate of Section 167 of the Code of Criminal Procedure, 1973 and Section 19 of the Prevention of Money Laundering Act, 2002 are totally ignored by a cryptic order, a writ of Habeas Corpus may be entertained, provided a challenge is specifically made. However, an order passed by a magistrate giving reasons for a remand can only be tested in the manner provided under the statute and not by invoking Article 226 of the Constitution of India, 1950. There is a difference between a detention becoming illegal for not following the statutory mandate and wrong or inadequate reasons provided in a judicial order. While in the former case a writ of Habeas Corpus may be entertained, in the latter the only remedy available is to seek a relief statutorily given. In other words, a challenge to an order of remand on merit has to be made in tune with the statute, while non‑compliance of a provision may entitle a party to invoke the extraordinary jurisdiction. In an arrest under Section 19 of the Prevention of Money Laundering Act, 2002 a writ would lie only when a person is not produced before the Court as mandated under subsection (3), since it becomes a judicial custody thereafter and the concerned Court would be in a better position to consider due compliance., Suffice it is to state that when reasons are found, a remedy over an order of remand lies elsewhere. Similarly, no such writ would be maintainable when there is no express challenge to a remand order passed in exercise of a judicial function by a magistrate. State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745., Section 41A. Notice of appearance before police officer. (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub‑section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice., Due interpretation of this provision of utmost importance has been given by the Supreme Court of India on more than one occasion [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and Satender Kumar Antil v. CBI, (2022) 10 SCC 51]. The interpretation of this provision, meant to preserve and safeguard the liberty of a person, is taken note of in the aforesaid judgments. This provision cannot be termed as a supplement to Section 19 of the Prevention of Money Laundering Act, 2002. The Prevention of Money Laundering Act, 2002 being a sui generis legislation, has its own mechanism in dealing with arrest in the light of its objectives. The concern of the Prevention of Money Laundering Act, 2002 is to prevent money laundering, make adequate recovery and punish the offender. That is the reason why a comprehensive procedure for summons, searches, and seizures etc., has been clearly stipulated under Chapter V of the Prevention of Money Laundering Act, 2002. An arrest shall only be made after due compliance of the relevant provisions including Section 19 of the Prevention of Money Laundering Act, 2002. Therefore, there is absolutely no need to follow and adopt Section 41A of the Code of Criminal Procedure, 1973 especially in the teeth of Section 65 of the Prevention of Money Laundering Act, 2002., In the absence of any mandate, one cannot force the authorised officer to ensure due compliance of Section 41A of the Code of Criminal Procedure, 1973 especially when a clear, different and distinct methodology is available under the Prevention of Money Laundering Act, 2002. Following Section 41A of the Code of Criminal Procedure, 1973 for an arrest under the Prevention of Money Laundering Act, 2002 would only defeat and destroy the very inquiry/investigation under the Prevention of Money Laundering Act, 2002. Till summons are issued to a person, he is not expected to be in the know‑how. Any prior intimation, other than what is mandated under the Prevention of Money Laundering Act, 2002 might seriously impair the ongoing investigation., The Explanation to Section 45 of the Prevention of Money Laundering Act, 2002 once again reiterates the role required to be performed by an authorised officer, duly fulfilling the conditions adumbrated under Section 19 of the Prevention of Money Laundering Act, 2002. The Explanation goes on to state by way of a clarification that all offences under the Act shall be cognizable and non‑bailable offences, notwithstanding anything contained to the contrary in the Code of Criminal Procedure, 1973. Vijay Madanlal Choudhary v. Union of India, 2022 (10) SCALE: 19. The Act was enacted to address the urgent need to have a comprehensive legislation inter alia for preventing money‑laundering, attachment of proceeds of crime, adjudication and confiscation thereof including vesting of it in the Central Government, setting up of agencies and mechanisms for coordinating measures for combating money‑laundering and also to prosecute the persons indulging in the process or activity connected with the proceeds of crime. This need was felt world over owing to the serious threat to the financial systems of the countries, including to their integrity and sovereignty because of money‑laundering. The international community deliberated over the dispensation to be provided to address the serious threat posed by the process and activities connected with the proceeds of crime and integrating it with formal financial systems of the countries. The issues were debated threadbare in the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Basel Statement of Principles enunciated in 1989, the FATF established at the summit of seven major industrial nations held in Paris from 14th to 16th July, 1989, the Political Declaration and Noble Programme of Action adopted by United Nations General Assembly vide its Resolution No. S-17/2 of 23.2.1990, the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998, urging the State parties to enact a comprehensive legislation. This is evident from the introduction and Statement of Objects and Reasons accompanying the Bill which became the 2002 Act. The Preamble of the 2002 Act reads thus: An Act to prevent money‑laundering and to provide for confiscation of property derived from, or involved in, money‑laundering and for matters connected therewith or incidental thereto.
id_446	1	Section 19, as amended from time to time, reads thus (emphasis supplied). In light of the aforesaid discussion, an Authorized Officer under the Prevention of Money Laundering Act, 2002 is not duty bound to follow the rigor of Section 41A of the Code of Criminal Procedure, 1973 as against the binding conditions under Section 19 of the Prevention of Money Laundering Act, 2002. The above discussion would lead to the conclusion that, inasmuch as there is already an exhaustive procedure contemplated under the Prevention of Money Laundering Act, 2002 containing sufficient safeguards in favour of the person arrested, Section 41A of the Code of Criminal Procedure, 1973 has no application at all., The need for the introduction of Section 41A has also been taken note of by the Law Commission in Chapter Five of its 177th Report. It is said that since the conviction rate is very low, the very fact of arrest is a sort of punishment that can be meted out to the guilty. This argument is misleading and unacceptable. Guilt or innocence has to be determined by the courts and not by the police. Police merely prosecutes on being satisfied that a person is guilty of an offence; it doesn’t punish. It is also suggested that there is a distinct increase in crime because of enormous increase in population, unemployment and lack of adequate resources. That may be so, but how does this phenomenon militate against the proposed changes in law? In fact, the attention of the police must be more on serious offences and economic offences and not so much on minor offences. The undesirable practice of arresting persons for minor offences and keeping them in jail for long periods (either because they cannot move for bail or because they cannot furnish bail to the satisfaction of the Supreme Court of India all because of their poverty) must come to an end. The Supreme Court of India has given several directions for release or discharge of accused in case of minor offences and offences punishable up to seven years, excepting therefrom the economic offences., From the above, we could appreciate one of the main reasons for such introduction. It was meant not to be applied to certain categories of offences, including economic offences, but only to minor offences under the Indian Penal Code, 1860. All power is of an encroaching nature, Justice Frankfurter of the United States Supreme Court in Trop v. Dulles (1958)., Chapter V of the Prevention of Money Laundering Act, 2002 deals with the power of an authority to conduct survey, search and seizure of both a place and a person followed by arrest, if so required. The provisions are step‑in‑aid in the conduct of inquiry and investigation. Section 19 reads: (1) If the Director, Deputy Director, Assistant Director, or any other officer authorized in this behalf by the Central Government by general or special order, has on the basis of material in his possession reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under subsection (1), forward a copy of the order, along with the material in his possession, referred to in that sub‑section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period as may be prescribed. (3) Every person arrested under sub‑section (1) shall within twenty‑four hours be taken to a Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction, provided that the period of twenty‑four hours shall exclude the time necessary for the journey from the place of arrest to the Magistrate’s Court., To effect an arrest, an officer authorized has to assess and evaluate the materials in his possession. Through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the Prevention of Money Laundering Act, 2002. Thereafter, he is at liberty to arrest, while performing his mandatory duty of recording the reasons. The said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest. Any non‑compliance of the mandate of Section 19(1) of the Prevention of Money Laundering Act, 2002 would vitiate the very arrest itself. Under sub‑section (2), the Authorized Officer shall immediately, after the arrest, forward a copy of the order as mandated under sub‑section (1) together with the materials in his custody, forming the basis of his belief, to the Adjudicating Authority, in a sealed envelope. Needless to state, compliance of sub‑section (2) is also a solemn function of the arresting authority which brooks no exception., Thereafter, the arrestee has to be taken to the Special Court, or the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, having jurisdiction within twenty‑four hours of such arrest. While complying with this mandate the time spent on the journey to the Court shall stand excluded. Vijay Madanlal Choudhary (Supra): 89. The safeguards provided in the 2002 Act and the pre‑conditions to be fulfilled by the authorised officer before effecting arrest, as contained in Section 19 of the 2002 Act, are equally stringent and of higher standard. Those safeguards ensure that the authorised officers do not act arbitrarily, but make them accountable for their judgment about the necessity to arrest any person as being involved in the commission of an offence of money laundering even before filing of the complaint before the Special Court under Section 44(1)(b) of the 2002 Act. If the action of the authorised officer is found to be vexatious, he can be proceeded against and inflicted with punishment specified under Section 62 of the 2002 Act. The safeguards to be adhered to by the jurisdictional police officer before effecting arrest as stipulated in the Code of Criminal Procedure, 1973, are certainly not comparable. This power has been given to high‑ranking officials with further conditions to ensure objectivity and accountability in resorting to arrest of a person even before a formal complaint is filed under Section 44(1)(b) of the 2002 Act. Investing of power in the high‑ranking officials in this regard has stood the test of reasonableness in Premium Granites & Anr. v. State of Tamil Nadu & Ors., (1994) 2 SCC 691, wherein the Supreme Court of India restated the position that requirement of giving reasons for exercise of power by itself excludes chances of arbitrariness. Further, in Sukhwinder Pal Bipan Kumar & Ors. v. State of Punjab & Ors., (1982) 1 SCC 31, the Supreme Court of India restated the position that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused. Additionally, the Central Government has framed Rules under Section 73 in 2005 regarding the forms and the manner of forwarding a copy of order of arrest of a person along with the material to the Adjudicating Authority and the period of its retention. In Ahmed Noormohmed Bhatti v. State of Gujarat & Ors., (2005) 3 SCC 647, this Court opined that the provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional merely because the authority vested with the power may abuse his authority. (Also see Manzoor Ali Khan v. Union of India & Ors., (2015) 2 SCC 33)., The conclusion thus arrived is that the Legislature in its wisdom has consciously created the necessary safeguards for an arrestee, keeping in mind his liberty, and the need for an external approval and supervision. This provision is in compliance with Article 21 and Article 22(2) of the Constitution of India, 1950. Section 62 states: \Law can never be enforced unless fear supports them.\ – Sophocles. Section 62 provides punishment for vexatious search. Any authority or officer exercising powers under this Act or any rules made thereunder, who without reasons recorded in writing, (a) searches or causes to be searched any building or place; or (b) detains or searches or arrests any person, shall for every such offence be liable on conviction for imprisonment for a term which may extend to two years or fine which may extend to fifty thousand rupees or both., This provision is a reiteration of the mandatory compliance of Section 19 of the Prevention of Money Laundering Act, 2002. It is in the nature of a warning to an officer concerned to strictly comply with the mandate of Section 19 of the Prevention of Money Laundering Act, 2002 in letter and spirit, failing which he would be visited with the consequences. It is his bounden duty to record the reasons for his belief in coming to the conclusion that a person has been guilty and therefore, to be arrested. Such a safeguard is meant to facilitate an element of fairness and accountability., Section 65 provides that the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act. The provisions of the Code of Criminal Procedure, 1973 being primarily procedural in nature, along with substantive elements, are to be applied, so long as they are not inconsistent with the provisions of the Prevention of Money Laundering Act, 2002. Therefore, the Prevention of Money Laundering Act, 2002 shall have precedence and when there is no inconsistency, a procedural assistance can be resorted to, as available under the Code of Criminal Procedure, 1973. In other words, the provisions of the Code of Criminal Procedure, 1973 are expected to be supplementary to the provisions of the Prevention of Money Laundering Act, 2002., To understand this provision, it would be appropriate to take note of Sections 4 and 5 of the Code of Criminal Procedure, 1973. Section 4 provides that all offences under the Indian Penal Code, 1860 shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained, and all offences under any other law shall be dealt with according to the same provisions, subject to any enactment regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 states that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force., Sub‑section (2) to Section 4 of the Code of Criminal Procedure, 1973 amplifies the fact that any inquiry or investigation, along with its process, over an offence should necessarily be only under that statute and not under the Code of Criminal Procedure, 1973. The aforesaid position has been reiterated under Section 5 of the Code of Criminal Procedure, 1973 whereby a distinct clarification has been given that the Code of Criminal Procedure, 1973 will not stand in the way of the operation of a special law. Thus, a conjoint reading of Section 65 of the Prevention of Money Laundering Act, 2002 along with Sections 4 and 5 of the Code of Criminal Procedure, 1973 leaves no room for doubt on the precedence of the former over the latter when it comes to investigation., The Prevention of Money Laundering Act, 2002 is a distinct and special statute having its own objective. The scheme of the Act provides for both prevention and action against money laundering. The object is to prevent the laundering and to recover when it happens, while extending punishment to the offender. In that process, materials collected can be used and exchanged for either of the purposes. In other words, for an inquiry and investigation there can be the same materials, while there is no bar for reliance on additional ones. They can travel in the same channel, but their destinations are different. One material can be used for both purposes, along with numerous others. So long as they travel together, there is not much of a difference between an inquiry and investigation. When they take separate routes, an inquiry ends before the Adjudicating Authority, while the other leads to a Special Court in the form of a complaint. This distinction has to be kept in mind to avoid any possible conflict or confusion. Vijay Madanlal Choudhary (Supra): 27. The task of the Director or an authority authorised by the Central Government under the 2002 Act for the collection of evidence is the intrinsic process of adjudication proceedings. In that, the evidence so collected by the authorities is placed before the Adjudicating Authority for determination of the issue as to whether the provisional attachment order issued under Section 5 deserves to be confirmed and to direct confiscation of the property in question. The expression investigation, therefore, must be regarded as interchangeable with the function of inquiry to be undertaken by the authorities for submitting such evidence before the Adjudicating Authority., In other words, merely because the expression used is investigation, which is similar to the one noted in Section 2(h) of the Code of Criminal Procedure, 1973, it does not limit itself to matter of investigation concerning the offence under the Act and Section 3 in particular. It is a different matter that the material collected during the inquiry by the authorities is utilised to bolster the allegation in the complaint to be filed against the person from whom the property has been recovered, being the proceeds of crime. Further, the expression investigation used in the 2002 Act is interchangeable with the function of inquiry to be undertaken by the authorities under the Act, including collection of evidence for being presented to the Adjudicating Authority for its consideration for confirmation of provisional attachment order. We need to keep in mind that the expanse of the provisions of the 2002 Act is the prevention of money laundering, attachment of proceeds of crime, adjudication and confiscation thereof, including vesting of it in the Central Government and also setting up of agency and mechanism for coordinating measures for combating money laundering., The power of arrest under Section 19 of the Prevention of Money Laundering Act, 2002 is meant for investigation alone. A clear position is taken note of in Vijay Madanlal Choudhary (Supra): 89. This argument clearly overlooks the overall scheme of the 2002 Act. As noticed earlier, it is a comprehensive legislation, not limited to providing for prosecution of a person involved in the offence of money laundering, but mainly intended to prevent money‑laundering activity and confiscate the proceeds of crime involved in money laundering. It also provides for prosecuting the person involved in such activity constituting offence of money laundering. In other words, this legislation is an amalgam of different facets including setting up of agencies and mechanisms for coordinating measures for combating money laundering. Chapter III is a provision to effectuate these purposes and objectives by attachment, adjudication and confiscation. The adjudication is done by the Adjudicating Authority to confirm the order of provisional attachment in respect of proceeds of crime involved in money laundering. For accomplishing that objective, the authorities appointed under Chapter VIII have been authorised to make inquiry into all matters by way of survey, searches and seizures of records and property. These provisions in no way invest power in the authorities referred to in Chapter VIII of the 2002 Act to maintain law and order or, for that matter, purely investigate a criminal offence. The inquiry preceding filing of the complaint by the authorities under the 2002 Act may have the semblance of an investigation conducted by them. However, it is essentially an inquiry to collect evidence to facilitate the Adjudicating Authority to decide on the confirmation of provisional attachment order, including to pass an order of confiscation, as a result of which the proceeds of crime would vest in the Central Government in terms of Section 9 of the 2002 Act. In other words, the role of the authorities appointed under Chapter VIII of the 2002 Act is such that they are tasked with a dual role of conducting inquiry and collecting evidence to facilitate adjudication proceedings before the Adjudicating Authority in exercise of powers conferred upon them under Chapters III and V of the 2002 Act and also to use the same materials to bolster the allegation against the person concerned by way of a formal complaint to be filed for offence of money laundering before the Special Court, if the fact situation so warrants. It is not as if after every inquiry prosecution is launched against all persons found to be involved in the commission of offence of money laundering. It is also not unusual to provide for arrest of a person during such inquiry before filing of a complaint for indulging in alleged criminal activity. The respondent has rightly adverted to somewhat similar provisions in other legislations, such as Section 35 of the Foreign Exchange Regulation Act and Section 102 of the Customs Act, including the decisions of this Court upholding such power of arrest at the inquiry stage bestowed in the authorities in the respective legislations. In Romesh Chandra Mehta v. State of West Bengal, (1969) 2 SCR 461: AIR 1970 SC 940, the Constitution Bench of the Supreme Court of India enunciated that Section 104 of the Customs Act confers power to arrest upon the Custom Officer if he has reason to believe that any person in India or within the Indian Customs waters has been guilty of an offence punishable under Section 135 of that Act. Again, in Union of India v. Padam Narain Aggarwal & Ors., (2008) 13 SCC 305, while dealing with the provisions of the Customs Act, it noted that the term arrest has neither been defined in the Code of Criminal Procedure, 1973 nor in the Indian Penal Code, 1860 nor in any other enactment dealing with offences. This word has been derived from the French word \arrêter\ meaning to stop or stay. It signifies a restraint of a person. It is, thus, obliging the person to be obedient to law. Further, arrest may be defined as the execution of the command of a court of law or of a duly authorised officer. This decision recognises the power of the authorised officer to cause arrest during the inquiry to be conducted under the concerned legislations. While adverting to the safeguards provided under that legislation before effecting such arrest, the Court noted as follows: Safeguards against abuse of power., From the above discussion, it is amply clear that power to arrest a person by a Customs Officer is statutory in character and cannot be interfered with. Such power of arrest can be exercised only in those cases where the Customs Officer has reason to believe that a person has been guilty of an offence punishable under Sections 132, 133, 135, 135‑A or 136 of the Act. Thus, the power must be exercised on objective facts of commission of an offence enumerated and the Customs Officer has reason to believe that a person sought to be arrested has been guilty of commission of such offence. The power to arrest thus is circumscribed by objective considerations and cannot be exercised on whims, caprice or fancy of the officer., Section 104 of the Customs Act, 1962 also obliges the Customs Officer to inform the person arrested of the grounds of arrest as soon as may be. The law requires such person to be produced before a Magistrate without unnecessary delay. The law thus, on the one hand, allows a Customs Officer to exercise power to arrest a person who has committed certain offences, and on the other hand, takes due care to ensure individual freedom and liberty by laying down norms and providing safeguards so that the power of arrest is not abused or misused by the authorities., Notably, this dichotomy does not exist in the 2002 Act for more than one reason. For, there is no role for the regular police officer. The investigation is to be done only by the authorities under the 2002 Act and, upon culmination of the investigation, to file a complaint before the Special Court. Moreover, by virtue of Clause (ii) of the Explanation in Section 44(1) of the 2002 Act, it is open to the authorities under this Act to bring any further evidence, oral or documentary, against any accused person involved in respect of offence of money laundering, for which a complaint has already been filed by him or against a person not named in the complaint and, by legal fiction, such further complaint is deemed to be part of the complaint originally filed. Strikingly, in Tofan Singh v. State of Tamil Nadu, (2021) 4 SCC 1, the Court also noted that, while dealing with the provisions of the Narcotic Drugs and Psychotropic Substances Act, the designated officer has no express power to file a closure report unlike the power bestowed on the police officer, if he had investigated the same crime under the NDPS Act. Once again, this lack of authority to file a closure report is not there in the 2002 Act. By virtue of the proviso in Section 44(1)(b), after conclusion of investigation, if no offence of money laundering is made out requiring filing of a complaint, the authority under the Act expected to file such complaint is permitted to file a closure report before the Special Court in that regard. In that decision, while analysing the provisions of Section 67 of the NDPS Act, the Court noted that the statement recorded under Section 67 of that Act was to be held as inadmissible in all situations. That renders Section 53A of the same Act otiose. Section 53A of the NDPS Act is about relevancy of statement made under certain circumstances. Realising the conflicting position emerging in the two provisions, the issue came to be answered., Otherwise, an arrest will be termed as a punishment, which power can never be under Section 19 of the Prevention of Money Laundering Act, 2002. This position being as clear as daylight, the proviso to Section 44(1)(b) of the Prevention of Money Laundering Act, 2002 throws further insight into it. Section 44 reads: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act, take cognizance of offence under Section 3, without the accused being committed to it for trial, provided that after conclusion of investigation, if no offence of money laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court., Therefore, the power under Section 19(1) of the Prevention of Money Laundering Act, 2002 can only be exercised during investigation and it is well open to the authority to file a closure report before the Special Court after conclusion, if it finds that there are no sufficient materials to proceed further. Justice, though due to the accused, is due to the accuser too – Justice Benjamin N. Cardozo of the United States Supreme Court. Section 167 provides the procedure when investigation cannot be completed in twenty‑four hours: (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty‑four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well‑founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub‑inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction, provided that (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub‑section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I: For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II: If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution., Before we consider this most important provision, let us have a comparison between the Code of Criminal Procedure, 1898 (hereinafter referred to as CrPC, 1898) and the Code of Criminal Procedure, 1973. Section 167: Procedure When Investigation Cannot be Completed in Twenty‑Four Hours: (1) Whenever it appears that any investigation under this Chapter cannot be completed within the period of twenty‑four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well‑founded, the officer‑in‑charge of the police station shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused (if any) to such Magistrate. Section 167: Procedure When Investigation Cannot be Completed in Twenty‑Four Hours: (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty‑four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well‑founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub‑inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
id_446	2	The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction., Provided that (a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; or (ii) sixty days where the investigation relates to any other offence, and, on the expiry of the said period of ninety days or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to furnish bail, and every person released on bail under this sub‑section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court of India, shall authorise detention in the custody of the police. Explanation I: For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II: If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution., (3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing. (4) If such order is given by a Magistrate other than the District Magistrate or Subdivisional Magistrate, he shall forward a copy of his order, with his reasons for making it, to the Magistrate to whom he is immediately subordinate. (4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief Judicial Magistrate., As we could see, there is no difference between the provision as it existed earlier and now, except by way of an addition of a proviso, which we shall deal with later., Seeds of liberty are sown in this provision while facilitating further investigation, upon being satisfied that the same cannot be completed within twenty‑four hours. It is not a mere procedural provision but one having an inherent element of substantivity. While facilitating a fair play, it is introduced as a limb of Article 21 and Article 22(2) of the Constitution of India, 1950., Under sub‑section (1) of Section 167 of the Code of Criminal Procedure, 1973, a competent officer shall forward the accused to the Magistrate when it appears that the investigation cannot be completed within twenty‑four hours. Two factors are important as envisaged under sub‑section (1). They are, it must be a case where investigation cannot be completed within twenty‑four hours of arrest of an accused and that he has to be forwarded to the Magistrate, meaning thereby he comes into judicial custody from that of the investigating agency. The object and rationale behind this provision is rather clear. By restricting the custody to twenty‑four hours, the liberty of the accused is meant to be considered and taken note of by an independent authority in the form of a Magistrate. It is also an act of confirmation by the Magistrate on the arrest, followed by grant of custody of an accused person., Sub‑section (2) of Section 167 of the Code of Criminal Procedure, 1973 deals with the power of the Magistrate. Such a Magistrate may or may not have the jurisdiction to try a case. There is no question of jurisdiction in any form that would stand in the way of the Magistrate from exercising the said power. By a mere designation he assumes such power. This is for the reason that liberty is paramount and any delay would amount to its curtailment. It may also delay further investigation. The words from time to time would clearly indicate that a power to grant custody is not restricted to the first fifteen days of remand, but the whole period of investigation. It is not referable to judicial custody as against police custody. It only means as the occasion arises, which is from the point of investigation. Thus, when an investigation reveals new material to be confronted with the accused, a need for custody might arise, subject to the satisfaction of the Magistrate., In State of Rajasthan v. Basant Agrotech (India) Ltd., (2013) 15 Supreme Court Cases 1 this Supreme Court of India dealt with the words from time to time. The Law Lexicon, The Encyclopedic Law Dictionary (2nd Ed., 1997, p. 764) conferred the following meaning: 'From time to time' as occasion may arise. The words from time to time mean that an adjournment may be made as and when the occasion requires and they will not mean adjournment from one fixed day to another fixed day. The words are introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction., In Black's Law Dictionary (5th Ed., p. 601) it is defined as: 'From time to time' – occasionally, at intervals, now and then., In Stroud's Judicial Dictionary (5th Ed., Vol. 2, p. 1071) it is stated as: 'From time to time' – as occasion may arise (as per William, J., Bryan v. Arthur [(1839) 11 Adam & Eve 108 : 113 ER 354] at p. 117)., While authorising the detention of an accused, the Magistrate has a very wide discretion. Such an act is a judicial function and, therefore, a reasoned order indicating application of mind is certainly warranted. He may or may not authorise the detention while exercising his judicial discretion. Investigation is a process which might require an accused's custody from time to time as authorised by the competent Court. Generally, no other Court is expected to act as a supervisory authority in that process. An act of authorisation presupposes the need for custody. Such a need for police custody has to be by an order of a Magistrate rendering his authorisation., The words 'such custody as such Magistrate thinks fit' reiterate the extent of discretion available to him. It is for the Magistrate concerned to decide the question of custody, whether judicial or to an investigating agency or to any other entity in a given case. Interpreting the words 'such custody', the Law Commission in its 37th Report, while dealing with the pari materia provisions under the Code of Criminal Procedure, 1898, observed that the Magistrate is having wide powers as there is no express restriction under Section 167(2). It can be given to any investigating agency and, therefore, is not meant to have a narrow interpretation by restricting it to the police alone., A suggestion of the Ministry of Defence may be noted regarding custody under Section 167. Under Sections 167(2) and 344, a Magistrate is empowered to remand an accused to any custody, that is to say, he can remand him to other than police custody. It is considered that accused persons who are subject to military, naval or air force law may be permitted to be remanded to military, naval or air force custody. In fact, such custody has been ordered in some cases. In order that there may be no doubt left in the matter, the following addition has been suggested after the word 'custody': 'including military, naval or air force custody where the accused belongs to any of these services.' We have considered the suggestion. In Section 167(2), the words used are 'in such custody as the Magistrate thinks fit'. These words are very wide. In fact, it has been held even under Section 344 that the Magistrate can remand the accused to whatever custody he thinks fit. We are therefore of the view that no change is necessary. We give our fullest imprimatur to the views expressed by the Law Commission that Section 167 of the Code of Criminal Procedure, 1973 is meant not only for protecting the liberty of a person but also for concluding the investigation in a fair manner. A balancing act is expected to be undertaken by the Magistrate., Sub‑section (2) of Section 167 of the Code of Criminal Procedure, 1973 further makes a reference to the words 'a term not exceeding fifteen days in the whole'. The term has been introduced on purpose keeping in view the proviso which gives an outer limit for the conclusion of the investigation. Similarly, the words 'not exceeding fifteen days in the whole' should be understood in the same manner. The word 'whole' means total, not divided, lacking no part, entire, full, and complete. In Glaze v. Hart, 225 Missouri Appellate Reports 1205, the Kansas City Court of Appeals dealt with the word 'whole' and defined it as 'total; undivided; entire; complete; utter; absolute'. As a sequitur, fifteen days of maximum custody has to be seen contextually from the point of view of the period of investigation as provided under the proviso., Section 167(2) of the Code of Criminal Procedure, 1973 authorises the detention of the accused in custody by an order of the Magistrate. It consciously treats detention differently from custody. Custody will be either to the court or an investigating agency. Detention is normally made only by an investigating agency prior to the production before the learned Magistrate. Custody from being judicial may turn into police custody through an order passed by the learned Magistrate. Detention may at best be a facet of custody. However, they are not synonymous. When detention is authorised, it becomes custody. Custody does not mean a formal one; rather, it can only be construed when an arrestee is given physical custody. We make it clear that our interpretation of physical custody is meant to be applied to Section 167(2) of the Code of Criminal Procedure, 1973 alone., In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 Supreme Court Cases 623, while dealing with the interpretation of the word custody this Supreme Court of India relied upon several dictionaries: Oxford Dictionary defines custody as imprisonment, detention, confinement, incarceration, internment, captivity; Cambridge Dictionary explains custody as the state of being kept in prison, especially while waiting to go to court for trial; Longman Dictionary defines custody as when someone is kept in prison until they go to court because the police think they have committed a crime; Chambers Dictionary clarifies that custody is the condition of being held by the police; Chambers' Thesaurus supplies synonyms such as detention, confinement, imprisonment, captivity, arrest, formal incarceration; Collins Cobuild English Dictionary for Advanced Learners states that someone who is in custody or has been taken into custody or has been arrested and is being kept in prison until they get tried in a court; Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance; Corpus Juris Secundum under the topic of Escape & Related Offenses states that custody consists of the detention or restraint of a person against his or her will, or the exercise of control over another to confine the other person within certain physical limits; Black's Law Dictionary defines custody as the care and control of a thing or person, the keeping, guarding, care, watch, inspection, preservation or security of a thing, also the detainer of a man's person by virtue of lawful process or authority., We further note that sub‑section (2) of Section 167 of the Code of Criminal Procedure, 1973 consciously omits to mention the word police custody. What is important is the grant of custody which is to be decided by the Magistrate. The fact that the proviso makes a mention about police custody would only mean the outer limit an investigating agency can have., We are conscious of the fact that a different interpretation has been given as to how the total fifteen days which could be sought for by an investigating agency should be construed and reckoned. Even assuming that such custody can only be sought for by an agency within the first fifteen days, there has to be a physical custody to count the days. In a case where custody is shifted from judicial to an investigating agency by an order of Court, the starting point will be from the actual custody. We would only reiterate that the moment a person is produced before the Court, it assumes custody, divesting the agency of its own. When an order is passed granting police custody, any interdiction by any extraneous circumstance or a Court order would not kick‑start the period of custody. The situation may be different in a case where a further custody is not possible due to external factors. Further, an order of Court can never be a factor to prevent an investigation when the said order merges with the final one, upholding such custody. In such a case, the doctrine of actus curiae neminem gravabit would certainly apply, as the Court's action can never prejudice anyone, more so, an investigating agency performing its statutory mandate., In Bharat Damodar Kale v. State of Andhra Pradesh, (2003) 8 Supreme Court Cases 559 the Supreme Court of India considered whether the provisions of Chapter XXXVI of the Code of Criminal Procedure apply to the delay in instituting the prosecution or to the delay in taking cognizance. The learned counsel for the appellants argued that the limitation prescribed under the Chapter applies to taking cognizance, therefore even if a complaint is filed within the period of limitation, if cognizance is not taken within the period the same gets barred. The Court held that a cumulative reading of various provisions of the Chapter clearly indicates that the limitation prescribed therein is only for the filing of the complaint or initiation of the prosecution and not for taking cognizance. Section 469 of the Code provides that the period of limitation in relation to an offence shall commence either from the date of the offence or from the date when the offence is detected. Section 470 indicates that while computing the period of limitation, time taken during which the case was being diligently prosecuted in another court or in appeal or in revision against the offender should be excluded, as should time taken to obtain consent or sanction of the Government or any other authority, and periods when the court was closed. The Court observed that taking cognizance is an act of the Court over which the prosecuting agency or the complainant has no control, and therefore a complaint filed within the period of limitation cannot be made infructuous by an act of the Court. The legal maxim actus curiae neminem gravabit, which means an act of the Court shall prejudice no man, supports this view. The Court’s view is also in conformity with the earlier decision of this Court in Rashmi Kumar, (1997) 2 Supreme Court Cases 397., In Indore Development Authority v. Manoharlal, (2020) 8 Supreme Court Cases 129 the Constitution Bench exhaustively laid down the principle governing actus curiae neminem gravabit and restitution. The maxim is founded upon the principle that due to court proceedings or acts of court, no party should suffer. If any interim orders are made during the pendency of the litigation, they are subject to the final decision in the matter. If the matter is dismissed as without merit, the interim order is automatically dissolved. The maxim also incorporates the principle commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong. No person ought to have the advantage of his own wrong. The Court may, under its inherent jurisdiction ex debito justitiae, mitigate the damage suffered by the defendants by the act of the court., In Mrutunjay Pani v. Narmada Bala Sasmal, All India Reporter 1961 Supreme Court 1353, the Court observed that the same principle is comprised in the Latin maxim commodum ex injuria sua nemo habere debet, that is, convenience cannot accrue to a party from his own wrong., In Mahadeo Savlaram Shelke v. Pune Municipal Corporation, (1995) 3 Supreme Court Cases 33, it was observed that the Court can, under its inherent jurisdiction ex debito justitiae, have a duty to mitigate the damage suffered by the defendants by the act of the court., In Amarjeet Singh v. Devi Ratan, (2010) 1 Supreme Court Cases 417 and Ram Krishna Verma v. State of Uttar Pradesh, (1992) 2 Supreme Court Cases 620, the Supreme Court of India observed that no litigant can derive any benefit from mere pendency of the case in a court of law, as the interim order always merges in the final order, and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. The maxim actus curiae neminem gravabit, which means that the act of the Court shall prejudice no one, becomes applicable. The Court is under an obligation to undo the wrong done to a party by the act of the Court, and any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised., In Karnataka Rare Earth v. Department of Mines & Geology, (2004) 2 Supreme Court Cases 783, the Supreme Court of India observed that the maxim actus curiae neminem gravabit requires that the party should be placed in the same position but for the Court's order which is ultimately found to be not sustainable, resulting in one party gaining advantage which otherwise would not have been earned and the other party suffering. The successful party can demand the delivery of benefit earned by the opposite party under the interim order of the Court, or restitution for what it has lost., In A.R. Antulay v. R.S. Nayak, (1988) 2 Supreme Court Cases 602, the Supreme Court of India observed that it is a settled principle that an act of the Court shall prejudice no man. This maxim actus curiae neminem gravabit is founded upon justice and good sense and affords a safe and certain guide for the administration of the law. No man can be denied his rights.
id_446	3	Lord Buckmaster in Montreal Street Railway Co. v. Normandin, 1917 AC 170 (Privy Council) stated: All rules of court are nothing but provisions intended to secure the proper administration of justice. It is, therefore, essential that they should be made to serve and be subordinate to that purpose., Supreme Court of India in State of Gujarat v. Ramprakash P. Puri, (1969) 3 Supreme Court of India 156 : 1970 Supreme Court of India (Criminal) 29, reiterated the position by saying: Procedure has been described to be a handmaid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it. Like all rules of procedure, this rule demands a construction which would promote this cause., Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the court to rectify the mistake by exercising inherent powers. Judicial opinion heavily leans in favour of this view that a mistake of the court can be corrected by the court itself without any fetters. This is on principle, as indicated in Alexander Rodger v. Comptoir D'Escompte De Paris, (1969-71) LR 3 Privy Council 465 : 17 English Reports 120. I am of the view that in the present situation, the court's inherent powers can be exercised to remedy the mistake., Mahajan, J. speaking for a four‑Judge Bench in Keshardeo Chamria v. Radha Kissen Chamria, (1952) 2 Supreme Court of India 329 : 1953 Supreme Court Reports 136 : All India Reporter 1953 Supreme Court 23, stated: The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree‑holder or the objections raised by the judgment debtors., In re: Principle of restitution 335. The principle of restitution is founded on the ideal of doing complete justice at the end of litigation, and parties have to be placed in the same position but for the litigation and interim order, if any, passed in the matter., In South Eastern Coalfields Ltd. v. State of Madhya Pradesh, (2003) 8 Supreme Court of India 648, it was held that no party could take advantage of litigation. It has to disgorge the advantage gained due to delay in case the suit is lost. The interim order passed by the Supreme Court of India merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a final order going against the party successful at the interim stage., Section 144 of the Code of Civil Procedure is not the fountain source of restitution. It is rather a statutory recognition of the rule of justice, equity and fair play. The Supreme Court of India has inherent jurisdiction to order restitution so as to do complete justice. This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it., In exercise of such power, the courts have applied the principle of restitution to myriad situations not falling within the terms of Section 144 Code of Civil Procedure. What attracts applicability of restitution is not the act of the court being wrongful or a mistake or an error committed by the court; the test is whether, on account of an act of the party persuading the court to pass an order held at the end as not sustainable, resulting in one party gaining an advantage which it would not have otherwise earned, or the other party having suffered an impoverishment, restitution has to be made., Litigation cannot be permitted to be a productive industry. Litigation cannot be reduced to gaming where there is an element of chance in every case. If the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order., Supreme Court of India observed in South Eastern Coalfields Ltd. v. State of Madhya Pradesh, (2003) 8 Supreme Court of India 648 thus: In our opinion, the principle of restitution takes care of this submission. The word restitution in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, Uttar Pradesh, 1984 Supplement Supreme Court of India 505)., In law, the term restitution is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another (see Black's Law Dictionary, 7th Edition, p. 1315)., The Law of Contracts by John D. Calamari & Joseph M. Perillo has been quoted by Black to say that restitution is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for the injury done: Often, the result under either meaning of the term would be the same. Unjust impoverishment, as well as unjust enrichment, is a ground for restitution., If the defendant is guilty of a non‑tortious misrepresentation, the measure of recovery is not rigid but, as in other cases of restitution, such factors as relative fault, the agreed upon risks, and the fairness of alternative risk allocations not agreed upon and not attributable to the fault of either party need to be weighed., The principle of restitution has been statutorily recognised in Section 144 of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision is wide enough to include almost all kinds of variation, reversal, setting aside or modification of a decree or order., The interim order passed by the Supreme Court of India merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of a final decision going against the party successful at the interim stage., This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it (A. Arunagiri Nadar v. S. P. Rathinasami, 1970 Supreme Court of India OnLine Madras 63). In the exercise of such inherent power, the courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144., That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the act of the court embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law., If the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced., We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the Supreme Court of India withholding the release of money had remained in operation., Under proviso (a) of Section 167(2) of the Code of Criminal Procedure, 1973, a Magistrate may authorise the detention beyond a period of fifteen days, other than in the custody of the police. This period of fifteen days has to be reckoned, qua either a police custody or a custody in favour of the investigating officer, spanning over the entire period of investigation., It is too well settled that a proviso has to be understood from the language used in the main provision and not vice versa. Proviso to Section 167(2) of the Code of Criminal Procedure, 1973 speaks of authorisation of detention of an accused person otherwise than in police custody beyond the period of fifteen days, subject to his satisfaction. It further states that in any case the total period of custody, either police or judicial, shall not exceed sixty or ninety days, as the case may be., To understand this proviso one has to go back to the main provision, particularly the words ‘from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole’. The interpretation given by us to the main provision gives ample clarity to the proviso. Therefore, the period of fifteen days being the maximum period that can be granted in favour of the police would span from time to time with the total period of sixty or ninety days as the case may be. Any other interpretation would seriously impair the power of investigation., We may also hasten to add that the proviso merely reiterates the maximum period of fifteen days, qua a custody in favour of the police while there is absolutely no mention of the first fifteen days alone for the police custody., We would only reiterate that the proviso creates a fine balance between individual liberty and adequate investigation. The time limit fixed would help an accused person to come out of incarceration and thereafter lead to the faster conclusion of the trial; it also facilitates a proper investigation by way of police custody., It is to protect the interest of an accused person by restricting the period of investigation, a failure of which would entitle an arrestee to be released. This again is yet another facet of Article 21 of the Constitution of India, 1950., Section 167(2) was introduced in the year 1978, giving emphasis to the maximum period of time to complete the investigation. This provision has a laudable object behind it, which is to ensure an expeditious investigation and a fair trial, and to set down a rationalised procedure that protects the interests of the indigent sections of society. This is also another limb of Article 21. Presumption of innocence is also built into this provision., An investigating agency has to expedite the process of investigation as a suspect is languishing under incarceration. Thus, a duty is enjoined upon the agency to complete the investigation within the time prescribed and a failure would enable the release of the accused. The right enshrined is an absolute and indefeasible one, inuring to the benefit of the suspect., Such a right cannot be taken away even during any unforeseen circumstances, such as the recent pandemic, as held by Supreme Court of India in M. Ravindran v. Directorate of Revenue Intelligence, (2021) 2 Supreme Court of India 485 : (2021) 1 Supreme Court of India (Criminal) 876 : (Supreme Court of India pp. 502-06, para 17)., Before we proceed to expand upon the parameters of the right to default bail under Section 167(2) as interpreted by various decisions of Supreme Court of India, we note the observations made by Supreme Court of India in Uday Mohanlal Acharya v. State of Maharashtra, (2001) 5 Supreme Court of India 453 : 2001 Supreme Court of India (Criminal) 760 on the fundamental right to personal liberty and the effect of deprivation of the same as follows: Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can only be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution., When the law provides that the Magistrate could authorise the detention of the accused in custody up to a maximum period as indicated in the proviso to subsection (2) of Section 167, any further detention beyond the period without filing of a challan by the investigating agency would be a subterfuge and would not be in accordance with law and in conformity with the provisions of the Code of Criminal Procedure, and as such, could be violative of Article 21 of the Constitution., Article 21 of the Constitution of India provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. It has been settled by a Constitution Bench of Supreme Court of India in Maneka Gandhi v. Union of India, (1978) 1 Supreme Court of India 248, that such a procedure cannot be arbitrary, unfair or unreasonable., The history of the enactment of Section 167(2) Code of Criminal Procedure and the safeguard of default bail contained in the proviso thereto is intrinsically linked to Article 21 and is nothing but a legislative exposition of the constitutional safeguard that no person shall be detained except in accordance with the rule of law., Under Section 167 of the Code of Criminal Procedure, 1898 (the 1898 Code) which was in force prior to the enactment of the Code of Criminal Procedure, the maximum period for which an accused could be remanded to custody, either police or judicial, was fifteen days. However, since it was often unworkable to conclude complicated investigations within fifteen days, a practice arose wherein investigating officers would file preliminary charge‑sheets after the expiry of the remand period., The State would then request the Magistrate to postpone commencement of the trial and authorise further remand of the accused under Section 344 of the 1898 Code till the time the investigation was completed and the final charge‑sheet was filed., The Law Commission of India in Report No. 14 on Reforms of the Judicial Administration (Vol. II, 1948, pp. 758-760) pointed out that in many cases the accused were languishing for several months in custody without any final report being filed before the courts., It was also pointed out that there was conflict in judicial opinion as to whether the Magistrate was bound to release the accused if the police report was not filed within fifteen days., Hence the Law Commission in Report No. 14 recommended the need for an appropriate provision specifically providing for continued remand after the expiry of fifteen days, in a manner that while meeting the needs of a full and proper investigation in cases of serious crime, will still safeguard the liberty of the individual., Further, the legislature should prescribe a maximum time period beyond which no accused could be detained without filing of the police report before the Magistrate., It was pointed out that in England, even a person accused of grave offences such as treason could not be indefinitely detained in prison till commencement of the trial., The suggestion made in Report No. 14 was reiterated by the Law Commission in Report No. 41 on The Code of Criminal Procedure, 1898 (Vol. I, 1969, pp. 76-77)., The Law Commission re‑emphasised the need to guard against the misuse of Section 344 of the 1898 Code by filing preliminary reports for remanding the accused beyond the statutory period prescribed under Section 167., It was pointed out that this could lead to serious abuse wherein the arrested person could be kept in custody indefinitely while the investigation proceeds at a leisurely pace. Hence the Commission recommended fixing a maximum time‑limit of sixty days for remand., The Commission considered the reservation expressed earlier in Report No. 37 that such an extension may result in the sixty‑day period becoming a matter of routine. However, faith was expressed that proper supervision by the superior courts would help circumvent the same., The suggestions made in Report No. 41 were taken note of and incorporated by the Central Government while drafting the Code of Criminal Procedure Bill in 1970., Ultimately, the 1898 Code was replaced by the present Code of Criminal Procedure. The Statement of Objects and Reasons of the Code of Criminal Procedure provides that the Government took the following important considerations into account while evaluating the recommendations of the Law Commission: (i) an accused person should get a fair trial in accordance with the accepted principles of natural justice; (ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society; and (iii) the procedure should not be complicated and should, to the utmost extent possible, ensure a fair deal to the poorer sections of the community., It was in this backdrop that Section 167(2) was enacted within the present Code of Criminal Procedure, providing for time‑limits on the period of remand of the accused, proportionate to the seriousness of the offence committed, failing which the accused acquires the indefeasible right to bail., As is evident from the recommendations of the Law Commission mentioned supra, the intent of the legislature was to balance the need for sufficient time‑limits to complete the investigation with the need to protect the civil liberties of the accused., Section 167(2) provides for a clear mandate that the investigative agency must collect the required evidence within the prescribed time period, failing which the accused can no longer be detained., This ensures that the investigating officers are compelled to act swiftly and efficiently without misusing the prospect of further remand., It also ensures that the Supreme Court of India takes cognizance of the case without any undue delay from the date of giving information of the offence, so that society at large does not lose faith and develop cynicism towards the criminal justice system., Therefore, as mentioned supra, Section 167(2) is integrally linked to the constitutional commitment under Article 21 promising protection of life and personal liberty against unlawful and arbitrary detention, and must be interpreted in a manner which serves this purpose., In this regard we find it useful to refer to the decision of the three‑Judge Bench of Supreme Court of India in Rakesh Kumar Paul v. State of Assam, (2017) 15 Supreme Court of India 67 : (2018) 1 Supreme Court of India (Criminal) 401, which laid down certain seminal principles as to the interpretation of Section 167(2) Code of Criminal Procedure though the questions of law involved were somewhat different from the present case., The questions before the three‑Judge Bench were whether, firstly, the ninety‑day remand extension under Section 167(2)(a)(i) would be applicable in respect of offences where the maximum period of imprisonment was ten years, though the minimum period was less than ten years., Secondly, whether the application for bail filed by the accused could be construed as an application for default bail, even though the expiry of the statutory period under Section 167(2) had not been specifically pleaded as a ground for bail., The majority opinion held that the ninety‑day limit is only available in respect of offences where a minimum ten‑year imprisonment period is stipulated, and that the oral arguments for default bail made by the counsel for the accused before the High Court would suffice in lieu of a written application., This was based on the reasoning that the Supreme Court of India should not be too technical in matters of personal liberty., Madan B. Lokur, J. in his majority opinion, pertinently observed: Notwithstanding this, the basic legislative intent of completing investigations within twenty‑four hours and also within an otherwise time‑bound period remains unchanged, even though that period has been extended over the years. This is an indication that in addition to giving adequate time to complete investigations, the legislature has always put a premium on personal liberty and has always felt that it would be unfair to an accused to remain in custody for a prolonged or indefinite period., It is for this reason and also to hold the investigative agency accountable that time‑limits have been laid down by the legislature., Such views and opinions over a prolonged period have prompted the legislature for more than a century to ensure expeditious conclusion of investigations so that an accused person is not unnecessarily deprived of his or her personal liberty by remaining in prolonged custody for an offence that he or she might not even have committed., In our opinion, the entire debate before us must also be looked at from the point of view of expeditious conclusion of investigations and from the angle of personal liberty and not from a purely dictionary or textual perspective as canvassed by the learned counsel for the State., We take this view keeping in mind that in matters of personal liberty and Article 21 of the Constitution, it is not always advisable to be formalistic or technical. The history of the personal liberty jurisprudence of Supreme Court of India and other constitutional courts includes petitions for a writ of habeas corpus and for other writs being entertained even on the basis of a letter addressed to the Chief Justice or the Court., Therefore, the courts cannot adopt a rigid or formalistic approach whilst considering any issue that touches upon the rights contained in Article 21., We may also refer with benefit to the recent judgment of Supreme Court of India in S. Kasi v. State, (2021) 12 Supreme Court of India 1, wherein it was observed that the indefeasible right to default bail under Section 167(2) is an integral part of the right to personal liberty under Article 21, and the said right to bail cannot be suspended even during a pandemic situation as is prevailing currently., It was emphasised that the right of the accused to be set at liberty takes precedence over the right of the State to carry on the investigation and submit a charge‑sheet., Additionally, it is well‑settled that in case of any ambiguity in the construction of a penal statute, the courts must favour the interpretation which leans towards protecting the rights of the accused, given the ubiquitous power disparity between the individual accused and the State machinery., With respect to the Code of Criminal Procedure particularly, the Statement of Objects and Reasons is an important aid of construction. Section 167(2) has to be interpreted keeping in mind the threefold objectives expressed by the legislature, namely, ensuring a fair trial, expeditious investigation and trial, and setting down a rationalised procedure that protects the interests of indigent sections of society. These objects are subsets of the overarching fundamental right guaranteed under Article 21., Hence, it is from the perspective of upholding the fundamental right to life and personal liberty under Article 21 that we shall clarify and reconcile the various judicial interpretations of Section 167(2) for the purpose of resolving the dilemma that has arisen in the present case., As a consequence of the right flowing from the said provision, courts will have to give due effect to it, and thus any detention beyond this period would certainly be illegal, being an affront to the liberty of the person concerned., Therefore, it is not only the duty of the investigating agency but also the courts to see to it that an accused gets the benefit of Section 167(2)., Sub‑section (3) of Section 167 of the Code of Criminal Procedure, 1973 warrants a Magistrate to record reasons by speaking, a reasoned order while granting authorisation. As stated, this being a judicial order touching upon the rights of an accused, adequate reasons are expected to be recorded., Any such order passed is amenable to challenge before the higher judicial forum, though not by way of a habeas corpus petition., We have already touched upon the mandatory function that a Magistrate is to undertake while dealing with a case of remand. He is expected to do a balancing act., As a matter of rule, the investigation is to be completed within twenty‑four hours and therefore it is for the investigating agency concerned to satisfy the Magistrate with adequate material on the need for its custody, be it police or otherwise., We reiterate that Section 19 of the Prevention of Money Laundering Act, 2002, supplemented by Section 167 of the Code of Criminal Procedure, 1973, provides adequate safeguards to an arrested person., If Section 167 of the Code of Criminal Procedure, 1973 is not applicable, then there is no role for the Magistrate either to remand or otherwise.
id_446	4	Gupta and M.K.S. Abu Bucker and also of the Kerala High Court and Gujarat High Court is the logical and correct view and we approve the same for the reasons we have given in the preceding part of this judgment., We, indeed, see no imponderability in construing Section 35(2) of the Foreign Exchange Regulation Act and Section 104(2) of the Customs Act that the said provisions replace Section 167(1) and serve as a substitute thereof, substantially satisfying all the required basic conditions contained therein and that consequent upon such replacement of sub‑section (1) of Section 167, the arrested person under those special Acts would be an accused person to be detained by the Magistrate under sub‑section (2) of Section 167., In passing, it may be stated that there is no expression police officer deployed in Section 167(1) nor does it appear in any part of Section 167(2). The authority for detaining a person as contemplated under Section 167(2) is in aid of investigation to be carried on by any prosecuting agency who is invested with the power of investigation., The word investigation is defined under Section 2(h) of the present Code, which is an exact reproduction of Section 4(1)(b) of the old Code, and is an inclusive definition as including all the proceedings under the Code for the collection of evidence conducted by a police officer or any person (other than a Magistrate) who is authorised by a Magistrate in this behalf. The said word investigation runs through the entire fabric of the Code., There is a long course of decisions of the Supreme Court of India as well as of the various High Courts explaining in detail what the word investigation means. It is not necessary for the purpose of this case to recapitulate all those decisions except the one in H.N. Rishbud v. State of Delhi. In that decision, it has been held that under the Code investigation consists generally of the following steps: (1) proceeding to the spot, (2) ascertainment of the facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a Magistrate for trial and, if so, taking the necessary steps for the same by the filing of a charge‑sheet under Section 173., The steps involved in the course of investigation, as pointed out in the Rishbud case, have been reiterated in State of Madhya Pradesh v. Mubarak Ali., No doubt, it is true that there are a series of decisions holding the view that an Officer of Enforcement or a Customs Officer is not a police officer though such officers are vested with the powers of arrest and other analogous powers. Vide Ramesh Chandra v. State of West Bengal and Illias v. Collector of Customs, Madras. In the above decisions, this Court has held that the officers under the special Acts are not vested with the powers of a police officer qua investigation of an offence under Chapter XII of the Code, including the power to forward a report under Section 173 of the Code. See also State of Punjab v. Barkat Ram and Badku Joti Savant v. State of Mysore., Though an authorised officer of Enforcement or Customs is not undertaking an investigation as contemplated under Chapter XII of the Code, those officers enjoy some analogous powers such as arrest, seizure, interrogation etc. Besides, a statutory duty is enjoined on them to inform the arrestee of the grounds for such arrest as contemplated under Article 22(1) of the Constitution and Section 50 of the Code. Therefore, they have necessarily to make records of their statutory functions showing the name of the informant, the name of the person who violated any provision of the Code and who has been guilty of an offence punishable under the Act, the nature of information received, time of the arrest, seizure of the contraband if any, and the statements recorded during the course of the detection of the offence., It should not be lost sight of the fact that a police officer making an investigation of an offence representing the State files a report under Section 173 of the Code and becomes the complainant, whereas the prosecuting agency under the special Acts files a complaint as a complainant, i.e., under Section 61(ii) in the case of the Foreign Exchange Regulation Act and under Section 137 of the Customs Act. To say differently, the police officer after consummation of the investigation files a report under Section 173 of the Code, upon which the Magistrate may take cognizance of any offence disclosed in the report under Section 190(1)(b) of the Code, whereas the empowered or authorised officer of the special Acts has to file only a complaint of facts constituting any offence under the provisions of the Act, on the receipt of which the Magistrate may take cognizance of the said offence under Section 190(1)(a) of the Code., After taking cognizance of the offence either upon a police report or upon receiving a complaint of facts, the Magistrate has to proceed with the case as per the procedure prescribed under the Code or under the special procedure, if any, prescribed under the special Acts. Therefore, the word investigation cannot be limited only to police investigation; the word has a wider connotation and is flexible so as to include the investigation carried on by any agency, whether a police officer or an empowered or authorised officer or a person not being a police officer, under the direction of a Magistrate to make an investigation vested with the power of investigation., From the above discussion it cannot be said that either the Officer of Enforcement or the Customs Officer is not empowered with the power of investigation, though not with the power of filing a final report as in the case of a police officer., To sum up, Section 4 of the Code is comprehensive and Section 5 is not in derogation of Section 4(2); it only relates to the extent of application of the Code in the matter of territorial and other jurisdiction but does not nullify the effect of Section 4(2). In short, the provisions of the Code would be applicable to the extent in the absence of any contrary provision in the Special Act or any special provision excluding the jurisdiction or applicability of the Code. The second limb of Section 4(2) itself limits the application of the provisions of the Code, reading, 'subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.', The submission that, as there is no investigation within the terms of the Code in the field of the Foreign Exchange Regulation Act or the Customs Act, Section 4(2) of the Code can have no part to play, has to be rejected for the reasons given while disposing of the contention 'What investigation means' in the preceding part of this judgment., For the aforementioned reasons, we hold that the operation of Section 4(2) of the Code is straightaway attracted to the area of investigation, inquiry and trial of the offences under the special laws including the Foreign Exchange Regulation Act and the Customs Act and consequently Section 167 of the Code can be made applicable during the investigation or inquiry of an offence under the special Acts also inasmuch as there is no specific provision contrary to that excluding the operation of Section 167., There are a series of decisions of various High Courts, with some exception, taking the view that a Magistrate before whom a person arrested by the competent authority under the Foreign Exchange Regulation Act or the Customs Act is produced can authorise detention in exercise of his powers under Section 167. Otherwise the mandatory direction under the provision of Section 35(2) of the Foreign Exchange Regulation Act or Section 104(2) of the Customs Act, to take every person arrested before the Magistrate without unnecessary delay when the arrestee was not released on bail under sub‑section (3) of those special Acts, will become purposeless and meaningless. To say that the courts, even in the event of refusal of bail, have no choice but to set the person arrested at liberty by folding their hands as a helpless spectator in the face of what is termed as legislative casus omissus or legal flaw or lacuna would be utterly illogical and absurd., Ashok Munilal Jain (supra): We have gone through the orders passed by the trial court as well as by the High Court. We may state at the outset that, insofar as the High Court is concerned, it has not given any reasons in support of its aforesaid view except endorsing the view of the trial court to the effect that the provisions of Section 167(2) of the Code of Criminal Procedure are not applicable to the cases under the Prevention of Money Laundering Act. This position in law stated by the trial court does not appear to be correct and even the learned Attorney General appearing for the respondent could not dispute the same. As per the provisions of Section 4(2) of the Code of Criminal Procedure, the procedure contained therein applies in respect of special statutes as well unless the applicability of the provisions is expressly barred. Moreover, Sections 44 to 46 of the Prevention of Money Laundering Act specifically incorporate the provisions of the Code of Criminal Procedure to the trials under that Act. Thus, not only is there no provision in the Prevention of Money Laundering Act excluding the applicability of the Code of Criminal Procedure, but, on the contrary, provisions of the Code of Criminal Procedure are incorporated by specific inclusion. Section 65 of the Prevention of Money Laundering Act itself settles the controversy beyond any doubt: 'The provisions of the Code of Criminal Procedure, 1973 shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act.', We may also refer to the judgment of the Supreme Court of India in Directorate of Enforcement v. Deepak Mahajan, (1994) 3 SCC 440, wherein it was held: In the result, we hold that sub‑sections (1) and (2) of Section 167 are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of the Foreign Exchange Regulation Act and Section 104 of the Customs Act and that the Magistrate has jurisdiction under Section 167(2) to authorise detention of a person arrested by any authorised officer of the Enforcement under the Foreign Exchange Regulation Act and taken to the Magistrate in compliance with Section 35(2)., We, thus, do not agree with the opinion of the High Court that the provisions of Section 167(2) of the Code of Criminal Procedure would not be applicable to the proceedings under the Prevention of Money Laundering Act. In the present case, as no complaint was filed even after the expiry of 60 days from the date when the appellant was taken into custody, he was entitled to statutory bail in view of the provisions contained in Section 167(2) of the Code of Criminal Procedure., Having discussed the scope and ambit of Section 167 of the Code of Criminal Procedure, 1973, we believe that, being a penal statute, a literal, natural and simple interpretation is to be given. When there is no need for a purposive interpretation and the statute clearly expresses its intendment, an act of judicial surgery is best avoided. Nowhere in the provision is it stated that there cannot be any custody in favour of an investigating agency beyond the first 15 days of the remand, as against the express provision discussed in detail. While understanding the intendment of Section 167 of the Code of Criminal Procedure, the provision has to be read along with the proviso., This Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, held that while interpreting any statutory provision, the words used by the legislature should be given their natural meaning. Courts should be hesitant to add or subtract words from the statutory provision. An effort should be made to read the legislative provision in such a way that there is no wastage of words and any construction which makes some words of the statute redundant should be avoided. If the natural meaning of the words leads to an interpretation contrary to the objects of the Act or makes the provision unworkable or highly unreasonable, the courts may read down the statute, but only when there is an ambiguity in the language used., There is no ambiguity in the wording of Section 167(2) of the Code, and therefore the wise course would be to follow the principle laid down by Patanjali Shastri, C.J. in Aswini Kumar Ghose v. Arabinda Bose, (1952) 2 SCC 237, where he held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage if they can have appropriate application in circumstances conceivably within the contemplation of the statute., In Jugalkishore Saraf v. Raw Cotton Co. Ltd., AIR 1955 SC 376, S.R. Das, J., speaking for this Court, held that the cardinal rule of construction of statutes is to read the statutes literally, giving the words used by the legislature their ordinary, natural and grammatical meaning., External aids of interpretation are to be used only when the language of the legislation is ambiguous and admits of two or more meanings. When the language is clear or the ambiguity can be resolved under the more common rules of statutory interpretation, the court would be reluctant to look at external aids., Gajendragadkar, J., speaking for this Court in Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, held that the first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself., These sound principles of statutory construction continue to hold the field. When the natural meaning of the words is clear and unambiguous, no external aids should be used., A decision of a Court cannot be read like a statute, out of context and in ignorance of the requisite provisions. Commissioner of Central Excise, Bangalore v. Srikumar Agencies & Ors., (2009) 1 SCC 469, observes that courts should not place reliance on decisions without discussing how the factual situation fits with the facts of the decision on which reliance is placed. Observations of courts are not to be read as Euclid's theorems nor as provisions of the statute, and must be read in the context in which they appear., Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark on lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes; they do not interpret judgments., Lord Macdermott in London Graving Dock Co. Ltd. v. Horton observed that the matter cannot be settled merely by treating the words of a judgment as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto., Lord Reid in Home Office v. Dorset Yacht Co. Ltd. said that a speech of a judge is not to be treated as if it were a statutory definition; it will require qualification in new circumstances., Megarry, J. in Shebherd Homes Ltd. v. Sandham (No. 2) observed that one must not construe even a reserved judgment of a judge as if it were an Act of Parliament., Lord Morris in British Railways Board v. Herrington said there is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and judicial utterances are made in the setting of the facts of a particular case., Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper., The following words of Hidayatullah, J. in the matter of applying precedents have become locus classicus: Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. Precedent should be followed only so far as it marks the path of justice, but one must cut the dead wood and trim off the side branches., Satya Pal Singh v. State of Madhya Pradesh, (2015) 15 SCC 613, establishes that the proviso of a statute must be given an interpretation limited to the subject‑matter of the enacting provision. Dwarka Prasad v. Dwarka Das Saraf, (1976) 1 SCC 128, held that a proviso must be limited to the subject‑matter of the enacting clause and cannot be read as a separate or independent enactment., S. Sundaram Pillai v. V. R. Pattabiraman, (1985) 1 SCC 591, elaborated the scope of the proviso to the substantive provision of the section and the rules of its interpretation, summarising principles such as the natural presumption that, but for the proviso, the enacting part of the section would have included the subject‑matter of the proviso, and that a proviso must be construed with reference to the preceding parts of the clause to which it is appended., We have given our interpretation on the scope and ambit of Section 167(2) of the Code of Criminal Procedure, 1973. With due respect, we are unable to concur with the views expressed in Anupam J. Kulkarni (supra) to the effect that a police custody shall only be within the first 15 days of remand. Nowhere under Section 167(2) of the Code of Criminal Procedure is such a stipulation found either directly or indirectly., The intendment behind the proviso has also not been construed. Section 167(2) of the Code of Criminal Procedure, as stated, does a fine balancing act between the liberty of an individual and a proper investigation. Perhaps this Court was keeping in mind the earlier Code of Criminal Procedure, 1898 which restricted the period of investigation to 15 days alone. Once the period is given as 60 days or 90 days as the case may be, to an investigating agency, in tune with the proviso, Section 167(2) of the Code of Criminal Procedure, by normal interpretation, facilitates a police custody spanning over the said period, but not limited to 15 days., The decision in Chaganti Satyanarayana v. State of Andhra Pradesh, (1986) 3 SCC 141, has also been misconstrued. Though the facts are a bit different, this Court rightly understood sub‑section (2) of Section 167 of the Code of Criminal Procedure: the words '15 days' occurring in sub‑section (2) are tantamount to a period of 15 days at a time but subject to the condition that if the accused is to be remanded to police custody the remand should be for such period as is commensurate with the requirements of the case, with provision for further extensions for restricted periods, if need be, but in no case should the total period of remand to police custody exceed 15 days. Where an accused is placed in police custody for the maximum period of 15 days allowed under law, further detention, if warranted, has to be necessarily in judicial custody., Even assuming that the rationale behind Anupam J. Kulkarni (supra) is correct, the legal maxim actus curiae neminem gravabit would certainly apply. This aspect has not been taken note of in the said judgment, followed by the others. The larger Bench of the Supreme Court of India in Budh Singh v. State of Punjab (2009) 9 SCC 266 gave its imprimatur to the findings rendered in Anupam J. Kulkarni (supra). Allowing the said interpretation, which in our respectful view is contrary to the very mandate of Section 167(2) of the Code of Criminal Procedure, would cause serious prejudice to the investigation., While agreeing with the views expressed by this Court in Vikas Mishra (supra), which actually dealt with the issue of counting the days, we are inclined to refer the larger issue of the actual import of Section 167(2) of the Code of Criminal Procedure as to whether the 15‑day period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation—60 or 90 days, as the case may be, as a whole. This issue needs to be put to rest as a legal proposition on an authoritative pronouncement by a larger Bench, though it does not alter our consideration herein in the facts and circumstances arising in this case., We have already narrated the foundational facts without going in detail. This case has a chequered history with the pendulum swinging in favour of one side to another. On the earlier two occasions, the appellant succeeded before the High Court to be reversed only by this Court. We would record only one fact, namely that the order rejecting the bail has attained finality., We shall first consider the maintainability of the writ petition filed. A writ of Habeas Corpus was moved questioning the arrest made. When it was taken up for hearing on a mentioning, the next day the appellant was duly produced before the learned Principal Sessions Judge in compliance with Section 19 of the Prevention of Money Laundering Act, 2002. The custody thus becomes judicial as he was duly forwarded by the respondents. Therefore, even on the date of hearing before the High Court there was no cause for filing the writ petition HCP No. 1021 of 2023. An order of remand was passed on 14.06.2023. The two remand orders passed by the Court depict a clear application of mind. Despite additional grounds having been raised, they being an afterthought, we have no hesitation in holding that the only remedy open to the appellant is to approach the appropriate Court under the statute. This was obviously not done. The appellant was very conscious about his rights and, by way of an application, even opposed the remand., Despite our conclusion that the writ petition is not maintainable, we would like to go further in view of the extensive arguments made by the learned Senior Advocates appearing for the appellant. As rightly contended by the learned Solicitor General, the scheme and object of the Prevention of Money Laundering Act, 2002, being a sui generis legislation, is distinct. We find adequate compliance of Section 19 of the Prevention of Money Laundering Act, 2002, which contemplates a rigorous procedure before making an arrest. The learned Principal Sessions Judge took note of the fact by passing a reasoned order. The appellant was accordingly produced before the Court and, while he was in its custody, a judicial remand was made.
id_446	5	As it is a reasoned and speaking order, the appellant ought to have questioned it before the appropriate forum. We are only concerned with the remand in favour of the respondents. Therefore, even on that ground we hold that a writ of Habeas Corpus is not maintainable as the arrest and custody have already been upheld by way of rejection of the bail application., The arguments of the learned Senior Advocates on the interpretation of Section 167(2) of the Criminal Procedure Code, 1973 cannot be accepted as the law has been quite settled by the Supreme Court of India in Deepak Mahajan (supra). One cannot say that while all other safeguards as extended under Section 167(2) of the Criminal Procedure Code, 1973 would be available to a person accused, the provision regarding remand cannot be applied. Section 167(2) of the Criminal Procedure Code, 1973 merely complements and supplements Section 19 of the Prevention of Money Laundering Act, 2002. We do not find any inherent contradiction between these two statutes. Obviously, an arrest under Section 19 of the Prevention of Money Laundering Act, 2002 can only be made after compliance with much more stringent conditions than those available under Section 41 of the Criminal Procedure Code, 1973., The interplay between an investigation and inquiry conferring the same meaning is only for the usage of common materials arising therefrom. Such materials are to be utilized for both purposes. This is the basis upon which they are read together, giving the same meaning at a particular stage. In Vijay Madanlal Choudhary (supra) it was in the context of a challenge to the enactment, particularly in the light of Section 25 of the Evidence Act., Shri Kapil Sibal, learned Senior Advocate, placed reliance upon Vijay Madanlal Choudhary (supra) to press home his view that an authorised officer under the Prevention of Money Laundering Act, 2002 is not a police officer as declared in Vijay Madanlal Choudhary (supra). An officer is expected to perform as per the statute. In the process of investigation, he has been given certain powers. One shall not confuse such powers conferred under the statute with the police power; however, when it comes to application of Section 167(2) of the Criminal Procedure Code, 1973, such an authority has to be brought under the expression 'such custody' especially when the words police custody are consciously omitted. Therefore, the ratio laid down in Vijay Madanlal Choudhary (supra) has to be understood contextually, in its own perspective., Much arguments have been made on the basis of Anupam J. Kulkarni (supra). As rightly submitted by the learned Solicitor General, the facts are different and therefore distinguishable. In the case on hand, there is no custody in favour of the respondents, a fact even acknowledged by the appellant earlier through the arguments of his advocates. The learned Solicitor General is right in his submission that apart from the fact that the word custody is different from detention, it can only be physical. As pointed out by him, even the High Court has observed that the appellant continues to be in judicial custody. Admittedly, physical custody has not been given to the respondents. Admission of the appellant to the hospital of his choice cannot be termed as physical custody in favour of the respondents. Custody could not be taken on the basis of the interim order passed by the High Court which shall not affect the calculation of the period of 15 days. An investigating agency is expected to be given reasonable freedom to do its part. To say that the respondents ought to have examined the appellant in the hospital, and that with the permission of the doctors, can never be termed as adequate compliance., Any order of the Supreme Court of India is not meant to affect a person adversely despite its ultimate conclusion in his favour. The doctrine actus curiae neminem gravabit would certainly apply in calculating the period of 15 days. When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the Prevention of Money Laundering Act, 2002, no writ of Habeas Corpus would lie. Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial. Any non‑compliance with the mandate of Section 19 of the Prevention of Money Laundering Act, 2002 would enure to the benefit of the person arrested. For such non‑compliance, the competent court shall have the power to initiate action under Section 62 of the Prevention of Money Laundering Act, 2002. An order of remand has to be challenged only before a higher forum as provided under the Criminal Procedure Code, 1973 when it depicts a due application of mind both on merit and compliance with Section 167(2) of the Criminal Procedure Code, 1973 read with Section 19 of the Prevention of Money Laundering Act, 2002. Section 41A of the Criminal Procedure Code, 1973 has no application to an arrest made under the Prevention of Money Laundering Act, 2002. The maximum period of 15 days of police custody is meant to be applied to the entire period of investigation—60 or 90 days—as a whole. The words 'such custody' occurring in Section 167(2) of the Criminal Procedure Code, 1973 would include not only police custody but also that of other investigating agencies. The word custody under Section 167(2) of the Criminal Procedure Code, 1973 shall mean actual custody. Curtailment of the 15 days of police custody by any extraneous circumstances, act of God, or an order of the Supreme Court of India not being the handiwork of the investigating agency would not act as a restriction. Section 167 of the Criminal Procedure Code, 1973 is a bridge between liberty and investigation performing a fine balancing act. The decision of the Supreme Court of India in Anupam J. Kulkarni (supra), as followed subsequently, requires reconsideration by a reference to a larger bench., In view of the above‑said discussion, we have no hesitation in holding that the appeals arising out of Special Leave Petition (Criminal) Nos. 89398940 of 2023 and the appeals arising out of Special Leave Petition (Criminal) Nos. 8652‑8653 of 2023 are liable to be dismissed, upholding the views expressed in the impugned judgments. Accordingly, they are dismissed., The only other question to be considered is with respect to the custody of the appellant. The learned Solicitor General submitted that the period of 15 days expires by 12 August 2023. Even the learned Principal Sessions Judge has granted eight days of custody, though could not be given effect to. Conscious of the time constraint, we are inclined to permit the respondents to have custody of the appellant till 12 August 2023. Accordingly, the appeals arising out of Special Leave Petition (Criminal) Nos. 7437 of 2023, 7460 of 2023, and 8750 of 2023 filed by the respondents are disposed of. Application for intervention is dismissed. Application for direction stands disposed of giving liberty to the applicant to have recourse to the remedy known to law. Pending applications, if any, also stand disposed of., As already noted hereinabove, the Registry is directed to place the matter before Hon'ble the Chief Justice of India for appropriate orders to decide the larger issue of the actual import of Section 167(2) of the Criminal Procedure Code, 1973 as to whether the 15‑day period of custody in favour of the police should be only within the first 15 days of remand or spanning over the entire period of investigation—60 or 90 days—as a whole.
id_447	0	Petitioner: Abhishek Tiwari. Respondent: State of Uttar Pradesh through Additional Chief Secretary, Home, Lucknow, and others. Counsel for petitioner: Anand Mani Tripathi, Himanshu Shukla. Counsel for respondent: Chief Secretary, Honourable Ritu Raj Awasthi, Justice Dinesh Kumar Singh, Justice Dinesh Kumar Singh (Delivered by Justice Dinesh Kumar Singh)., The petition under Article 226 of the Constitution of India was filed by the petitioner impugning the order dated 27 April 2021, which communicated the decision of the High Level Committee dated 16 April 2021 regarding refusal to provide personal security, communicated to the Commissioner of Police, Lucknow and to the petitioner on 5 May 2021. The petitioner is a practicing lawyer of Lucknow district handling criminal and public interest litigation, receiving continuous threats to his life and property., Initially the petitioner submitted a representation dated 19 December 2020 to the Additional Chief Secretary, Home, for personal security. A report on threat perception was called from the Commissionerate Security Committee, Lucknow for consideration by the State Level Security Committee. The Joint Secretary, Home, on the basis of the recommendation of the Commissionerate Security Committee, vide letter dated 19 December 2020 ordered provision of one gunner at State expense as interim personal security., The decision dated 19 December 2020 provided interim personal security for six months, subject to a report/recommendation in the prescribed format from the Commissionerate Security Committee regarding real threat perception. The Committee reassessed threat perception on 13 February 2021 in light of Government Orders dated 9 May 2014 and 10 July 2020 and found no threat. The report was submitted to the State Government., The State Level Security Committee meeting on 17 February 2021 considered the petitioner’s case and decided to continue interim security for six months vide letter dated 19 December 2020. The Committee apparently did not consider the 13 February 2021 report and based the decision solely on the 19 December 2020 letter. Consequently, the order dated 12 March 2021 extended personal security of one police personnel for six months. In the meeting on 16 April 2021, the Committee considered recommendations of several District Level Committees and the Commissionerate Security Committee; threat perception of 188 citizens was considered by the High Level Committee, and the petitioner’s name appeared at serial number 102., The Supreme Court of India, vide order dated 22 July 2021, requisitioned the recommendation/decision of the High Level Committee for providing or not providing personal security to persons whose cases were considered on the basis of recommendations of District/Divisional Level Security Committees., Regarding the petitioner, his profession is listed as Advocate, Allahabad High Court, Lucknow, with a yearly income of Rs 4,50,000. Minutes of the meeting show that the Commissionerate Security Committee report dated 12 March 2021 stated the petitioner requested security because of appearing in several public interest litigations and traveling to Naxalite and dacoit affected areas, creating a persistent threat. However, the Committee stated there was no specific threat from any person, no FIR lodged, and no real threat, thus no reasonable basis to continue interim security, and the State Level Security Committee decided not to extend security., The petitioner did not disclose correct facts in the writ petition, as mentioned in paragraph 5 of the counter affidavit filed by the State authorities. It is stated that the petitioner was granted security by the State Government for six months at the expense of 10 percent vide order dated 23rd November 2020 on an application processed from District Jaunpur, which expired on 13 May 2021. The district administration of Jaunpur extended security till 15 June 2021 and the matter was referred to the Divisional Level Security Committee for consideration under Government Order dated 9 May 2014. The petitioner was asked to deposit 10 percent expenses for one month vide letter dated 6 May 2021., In paragraph 15 of the rejoinder affidavit filed by the petitioner, he admitted the facts stated in paragraph 5 of the counter affidavit, but contended that the dispute is not about security provided by the District Administration, Jaunpur, but about security provided from District Lucknow., Heard Mr. Anand Mani Tripathi, learned counsel for the petitioner, and Mr. Amitabh Rai, learned Additional Chief Standing Counsel for the respondents., Learned counsel for the petitioner submitted that the petitioner was provided security vide order dated 19 December 2020 for six months, extended for a further six months vide decision dated 17 February 2021. While the order was still in operation, the Commissionerate Security Committee, Lucknow, vide recommendation dated 12 March 2021, recommended withdrawal of security, and on that basis the State Level Security Committee passed the impugned order withdrawing security. It is further stated that the decision is arbitrary, illegal and mala fide, and that the petitioner’s criminal and public interest litigation against the State led to withdrawal in a mala fide manner., When the Court asked whether any FIR or police complaint had ever been filed by the petitioner regarding threat to life or property, he conceded that no such complaint had been registered. He further submitted that the impugned order dated 27 April 2021 suffers from arbitrariness and should be quashed, and the Government may be directed to provide security., Mr. Amitabh Rai submitted that the Supreme Court in Writ Petition No. 6509 (M/B) of 2013 (PIL) Dr. Nutan Thakur v. State of Uttar Pradesh and others, vide interim order dated 2 December 2013, directed the State Government to formulate a policy for providing security to private persons. In pursuance, the Government issued a policy decision dated 9 December 2014, placed on record as Annexure CA‑3 to the counter affidavit., According to the policy decision, any person or VIP seeking personal security must apply in the prescribed format to the District Magistrate or Senior Superintendent of Police. Threat perception is assessed by the District/Divisional Level Security Committee. The District Level Committee consists of the District Magistrate/Senior Superintendent of Police and the In‑charge of the District Local Intelligence Unit. If a real threat is found, personal security is provided for one month, extendable for two further one‑month terms. After three months, the District Committee may refer the matter to the Divisional Committee consisting of the Divisional Commissioner, Deputy Inspector General of Police, Superintendent of Police and the District Local Intelligence Unit. The Divisional Committee may extend security for another three months. After six months, the State Level High Committee consisting of the Principal Secretary, Home, Director General of Police and Additional Director General of Police (Security) may grant security for six months, after which the process repeats., Government Order dated 10 July 2020 issued further directions for providing personal security on the basis of threat perception, continuing the order dated 9 May 2014. It is submitted that the earlier decision for providing six months security to the petitioner was interim, and every six months a decision is taken based on threat perception. The Commissionerate Level Security Committee specifically recommended no real threat, and the High Level Security Committee concurred, thus deciding not to extend security., It is submitted that the petitioner approached the Court with unclean hands, concealing the material fact of having one security personnel from the District Administration, Jaunpur, which he did not deny in his rejoinder affidavit. If the petitioner’s contention were accepted, every advocate practicing criminal matters would be required to be given personal security. It is said there is no real threat perception and the petitioner’s demand is for a status symbol. The writ petition lacks merit and is liable to be dismissed., A large number of private persons are being provided personal security, which many consider a waste of taxpayers’ money. In response to a parliamentary question, the Minister of State (Home) explained that security for the President, Vice‑President and Prime Minister is provided according to the “Blue Book” ex‑officio. Union Ministers, State Chief Ministers and Judges of the Supreme Court and High Courts receive positional security. Security arrangements for other political personalities are made after careful assessment of threats from terrorists, militants, fundamentalist outfits and organized criminal gangs, prescribed in the “Yellow Book”. Categorised security cover (Z+, Z, Y, X) is provided based on the gravity of the threat., A person or political personality cannot claim security merely because of private disputes. Security for the President, Vice‑President, Prime Minister, Union Ministers, State Chief Ministers and Judges is justified as they represent the core functioning of the State. Other political personalities may claim security if there is a real threat from terrorists, militants, fundamentalist outfits or organized criminal gangs for work done in the national interest. Such security is at State expense and its denial would affect the prestige of the Government and public confidence., In a democratic polity, the State should not create a privileged class. The Constitution of India (1950) aims to secure justice, liberty, equality and opportunity to all citizens. While public interest may demand personal security, it must be provided transparently and the State must justify its decision if challenged., In M.A. Khan Chaman v. State of Uttar Pradesh, 2004 SCC Online All 373, the Court held that the petitioner does not have a right to enjoy security indefinitely. Acquisition of a gunner has become a status symbol and must end. Security can be provided only if needed in fact and there is a threat perception to the life of the applicant or family members., Security cases should be decided objectively by the authority, considering all relevant factors, and not merely to enhance status. The competent authority must review threat perception periodically. Whether the applicant pays expenses of the gunner depends on the recommendation of the reviewing authority., A person is entitled to security as per Government Order/policy if he falls within parameters based on real threat perception. In the present case, no specific instance shows the petitioner faces threat to his life or family. The Court summarized that security cannot be provided unless needed in fact, based on a real grave threat., In Hazi Rais v. State of Uttar Pradesh and others, 2006 SCC Online All 621, the Court observed that the need to provide security to every individual is imperative, but the demand has become a status symbol. The Court emphasized an objective, bona‑fide review of security arrangements., The Madras High Court in N. Jothi v. The Home Secretary, Government of Tamil Nadu (2006) held that the High Court is not expected to sit in appeal over the decision of the High Level Committee regarding the level of security; threat perception is to be decided by the Security Committee., The Supreme Court in Abhay Singh v. State of Uttar Pradesh (2013) 15 SCC 435, arising from an appeal in Pramod Tiwari v. State of Uttar Pradesh 2009 SCC Online All 2107, considered three questions: (i) the legality of use of beacons, red lights and sirens by persons other than constitutional functionaries; (ii) the lawfulness of providing security to persons other than constitutional functionaries without increase in sanctioned strength and without specific threat assessment; (iii) the lawfulness of road closures for VIP movement., In paragraphs 20 and 21 of Abhay Singh v. State of Uttar Pradesh, the Court reflected on India’s constitutional ethos, equality, and the misuse of symbols of authority such as red lights on vehicles of public representatives, noting that many misuse these symbols without respect for law., In Ramveer Upadhyay v. R.M. Srivastava and others, (2015) 13 SCC 370, the Court observed that Z or Y category security is rarely provided to ordinary citizens regardless of threat perception. Security for a former minister may be justified, but assessment of threat perception rests with authorities, not courts., A report indicates 2,556 MLAs and MPs from 22 states are accused in various cases; including former legislators the number rises to 4,442. Only convicted persons are barred from contesting elections for six years. The Supreme Court has ordered political parties to publish the criminal history of candidates, implying that politicians with criminal cases could theoretically be provided security., As a principle, private individuals should not receive security at State cost unless compelling transparent reasons exist, linked to public or national service, and security should continue until the threat abates. Granting security without real threat creates a privileged class and misuses public resources. The Bureau of Police Research and Development reported that in 2019, over 20,000 additional policemen beyond sanctioned strength were deployed in VIP protection, with 66,043 policemen protecting 19,467 ministers, MPs, judges, bureaucrats and other personalities., In Rajinder Saini v. State of Punjab and others, C.W.P. No. 19453 of 2015, relying on Ramveer Upadhyay, the Court observed that politicians seeking security merely to show might cannot be provided security without an actual threat; the authority alone can consider and recommend security., In Randeep Singh Surjewala v. Union of India and others, CWP No. 13266 of 2016, the Punjab and Haryana High Court denied inclusion of Surjewala’s name in the Central list as no specific threat perception was presented., The Supreme Court of India, while exercising writ jurisdiction under Article 226, cannot substitute its decision for that of the competent authority on threat perception. From the record, the petitioner does not face any real threat to life or property and seeks security as a status symbol. Threat perception must be real, assessed by the Security Committee with inputs from the Intelligence Unit, the concerned police station and the applicant’s past record. Security should be provided only to those facing genuine threat due to work in the interest of society or the nation, not for personal enmity., In view of the foregoing, the writ petition lacks merit and is dismissed. Any interim order, if any, stands vacated., A copy of this judgment shall be sent to the Chief Secretary, Government of Uttar Pradesh, Principal Secretary/Additional Chief Secretary, Department of Home, Uttar Pradesh, and Director General of Police, Uttar Pradesh for compliance and decision regarding provision of security to an individual.
id_449	0	The instant appeal, by way of special leave, is directed against order dated 06.10.2010 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 885-SB of 1999 whereby the High Court dismissed the appeal filed by the appellant herein., Heard learned counsel appearing on behalf of the appellant as also the learned counsel appearing on behalf of the respondent State. Learned counsel for the appellant submitted that the prosecution has not been able to prove the case beyond any reasonable doubt as there was no independent witness in the present case. Learned counsel further submitted that mandatory provisions of Section 50 of the Narcotic Drugs and Psychotropic Substances Act (for short, the NDPS Act) were not complied with and the appellant was neither searched nor told of his right of being searched before the Gazetted Officer or the Magistrate., Per contra, learned counsel for the respondent State submitted that the appellant was searched in the presence of the Superintendent of Police, District Moga, who is a gazetted officer, as per the provisions of Section 50 of the NDPS Act, and it was found that the appellant was carrying 4 kg of opium and 20 grams were taken as sample. Thereafter, the Chemical Examiner, after the completion of necessary investigation, confirmed that the substance was opium., Having heard learned counsel for the parties and on carefully perusing the material placed on record, we notice that the report of the Chemical Examiner indicates that some powder material/chura was tested. Learned counsel for the appellant contended that opium is generally a sticky material. No doubt, the report of the Chemical Examiner indicates that some powder material/chura was undertaken for analysis which was found to contain morphine and meconic acid., The learned counsel for the respondent State points out that as per the provisions of the NDPS Act, it is nowhere mentioned that opium should necessarily be in the form of a sticky material. It is only on the basis of the contents of particular sample that a conclusion is to be arrived at regarding the same being opium. The physical nature of the material is not relevant for determining whether the contents of the sample analyzed were actually opium or not, and physical analysis is not prescribed under the provisions of the NDPS Act for testing the opium. These aspects of the matter have been appropriately adverted to by the learned Sessions Judge in arriving at his conclusion. The same has been reappreciated and confirmed by the High Court., In view of the above, we are not inclined to interfere with the impugned order passed by the High Court. The appeal is, accordingly, dismissed. Vide order dated 21.10.2016, the appellant was granted bail. Consequent upon dismissal of the appeal filed by the appellant herein, the bail bonds stand cancelled and he is directed to surrender before the trial court to serve out the remaining period of sentence., Criminal Appeal No. 1004/2016 Date: 22-02-2022. This appeal was called on for hearing today., For Appellant: Mr. Abdullah Kalam, Advocate; Ms. Mausumi Mishra, Advocate; Mr. Abdul Qarim, Advocate; Mr. Danish Saifi, Advocate; Mr. Fuzail Ahmad Ayyubi, Advocate on Record., For Respondent: Ms. Jaspreet Gogia, Advocate on Record; Mr. Karanvir Gogia, Advocate; Ms. Shivangi Singhal, Advocate., Upon hearing the counsel the Supreme Court of India made the following: The appeal is dismissed in terms of the signed order. Vide order dated 21.10.2016, the appellant was granted bail. Consequent upon dismissal of the appeal filed by the appellant herein, the bail bonds stand cancelled and he is directed to surrender before the trial court to serve out the remaining period of sentence.
id_45	0	Reportable Writ Petition (C) No.916 of 2020 Bandhua Mukti Morcha Petitioner Versus Union of India & Ors. Respondents Ashok Bhushan, J., The worldwide pandemic COVID-19 engulfed this country in March 2020 and continues to date, changing its face from time to time. Different mutations in the virus have made it dangerous and fatal at times. The pandemic affected every person in the world including all citizens of this country. It has adversely affected all businesses including small‑scale businesses, industries, markets and the smallest of persons., One of the groups severely affected by the pandemic was the migrant labourers. When the nationwide lockdown was declared on 24‑03‑2020, a huge exodus of migrant labourers from their places of work to their native places occurred. The primary reasons were cessation of employment due to lockdown and fear of the pandemic. As large numbers of migrant labourers started walking on highways on foot, cycles and other modes of transport without food and facing several untold miseries, the Supreme Court of India suo motu took cognizance of the problems and miseries of the migrant labourers by its order dated 26‑05‑2020, on which date this Suo Motu Writ Petition was registered. The Court issued notice to the Union of India and all States and Union Territories and directed the learned Solicitor General to assist the Court and, by the next date of hearing, bring in the notice of the Court all measures and steps taken by the Government of India and to be taken in this regard., In pursuance of the order dated 26‑05‑2020, affidavits were filed. Apart from the affidavit filed by the Central Government and the States and Union Territories, a few persons also filed intervention applications in this writ petition, bringing to the notice of the Supreme Court of India several facts, figures and suggested different measures for ameliorating the conditions of the migrant labourers. One of the major issues at that time was the transportation of migrant labourers from their workplaces to their native places., The Court issued certain directions on 28‑05‑2020 and thereafter further directions on 09‑06‑2020. In paragraph 26 of the latter order the Court noted: As noted above, the States and Union Territories in their affidavits have referred to various measures, the orders and guidelines issued by the Central Government, the orders issued by the National Executive Committee under the Disaster Management Act, 2005, policies and decisions taken by the concerned States. The States and Union Territories claimed to be following all directions and policies and taking necessary steps for running relief camps, shelter camps, attending the needs of food and water of the migrants, and arranging transportation of migrant workers to their native places. There can be no exception to the policies and intentions of the State but what is important is that those entrusted with implementation of circulars, policies and schemes do so efficiently and correctly. Lapses and shortcomings in implementing the schemes and policies have been highlighted by various intervenors in their applications and affidavits. The responsibility of the States and Union Territories is not only to refer to their policies, measures contemplated, funds allocated but also to ensure strict vigilance and supervision as to whether those measures, schemes, benefits reach those to whom they are meant. The Court impressed on the States and Union Territories to streamline vigilance and supervision of actions of their officers and staff and take appropriate action where required. While most officers, staff of administration and police are discharging their duties with devotion and hard work, the lapses have to be noted and remedial action taken. The Court further noticed that police officers of the States and paramilitary forces wherever deployed are doing a commendable job but some instances of excess with regard to migrant labourers are also there. The migrant labourers, who were forced to proceed to their native places after cessation of their employment, are already suffering. Their financial difficulty must be dealt with by the police and other authorities in a humane manner. The concerned Director General of Police or Police Commissioner may issue necessary directions in this regard., Further eight directions were issued by the Supreme Court of India by order dated 09‑06‑2020, which were to the following effect: (1) All States and Union Territories shall take all necessary steps regarding identification of stranded migrant workers in their State who are willing to return to their native places and arrange their return journey by train or bus within fifteen days from the date of the order. (2) In event of any additional demand beyond the 171 Shramik trains, the railways shall provide Shramik trains within twenty‑four hours as submitted by the learned Solicitor General to facilitate the return journey of migrant workers. (3) The Central Government may give details of all schemes which can be availed by migrant workers who have returned to their native places. (4) All States and Union Territories shall also give details of all schemes currently in the State whose benefits can be taken by the migrant labourers, including different schemes for providing employment. (5) The State shall establish counselling centres and help desks at block and district level to provide all necessary information regarding government schemes and to extend a helping hand to migrant labourers to identify avenues of employment and benefits which can be availed by them under the different schemes. (6) Details of all migrant labourers who have reached their native places shall be maintained with details of their skill, nature of employment and earlier place of employment, village‑wise, block‑wise and district‑wise, to facilitate administration to extend benefit of different schemes applicable to such migrant workers. (7) The counselling centres established as directed above shall also provide necessary information and assistance to those migrant workers who have returned to their native places and who wish to return to their places of employment. (8) All concerned States and Union Territories shall consider withdrawal of prosecution or complaints under Section 51 of the Disaster Management Act and other related offences lodged against migrant labourers who are alleged to have violated lockdown measures by moving on roads during the period of lockdown enforced under the Disaster Management Act, 2005., In pursuance of the directions dated 09‑06‑2020, all States and Union Territories took steps and within a short period migrant labourers were transported to their native places. On 31‑07‑2020 the matter was again heard. The Court, in its order dated 09‑06‑2020, referred to the following three enactments: (i) Inter‑State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; (ii) Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996; and (iii) Unorganized Workers Social Security Act, 2008., The Court directed all the States to file their response with respect to implementation of the aforesaid three enactments. On 31‑07‑2020 the Court further granted three weeks’ time to the States to file affidavits in compliance with the order dated 09‑06‑2020. In pursuance of the orders dated 09‑06‑2020 and 31‑07‑2020, the Central Government, the States and the Union Territories took various measures to implement the orders of the Supreme Court of India and to remedy the grievances of the migrant labourers. Although the measures could not fully ameliorate the conditions of the migrant labourers, they brought some solace in the first wave of the pandemic and willing migrant labourers reached their native places. It has also been submitted that after a few months a large number of migrant labourers again proceeded to their workplaces in search of employment since they were not able to obtain suitable employment at their native places to sustain themselves., The COVID‑19 pandemic, which was declared a pandemic by the World Health Organization on 30 January 2020, continues even today. The intensity of the pandemic varied from time to time; after March 2021 the second wave hit the country and the number of cases started increasing throughout the country. Different States including the National Capital Territory of Delhi took various measures including restrictions, night curfews and lockdown in April 2021. Migrant workers in several places including the National Capital Territory of Delhi, the State of Maharashtra, the State of Gujarat and the State of Karnataka again started proceeding to their native places fearing a situation similar to the first nationwide lockdown imposed in March 2020. An Inter‑Application No. 58769 of 2021 was filed in the writ petition seeking directions from the Supreme Court of India specifically praying for direction to distribute dry ration to migrant workers, facilitating their transport either by road or by train to their native places and requesting the running of community kitchens for migrant labourers so that they and their family members could get two meals a day., On 13‑05‑2021, while entertaining the petition and asking a few States for reply, the Court issued the following interim directions: After hearing learned counsel for the parties, the Court directed the Central Government as well as the Governments of the National Capital Territory of Delhi, Uttar Pradesh and Haryana (for the districts included in the National Capital Region) to file a reply to the application suggesting means and measures by which they shall ameliorate the miseries of stranded migrant labourers. The Court also issued notice to the States of Maharashtra, Gujarat and Bihar to file their reply giving details of the measures they propose to take to ameliorate the miseries of migrant workers regarding transportation of stranded migrant workers and providing dry ration as well as cooked meals to the stranded migrant workers. In the meantime, the Court issued the following interim directions: (1) Dry ration to migrant workers in the National Capital Region under the Atma Nirbhar Bharat Scheme or any other scheme shall be provided by the Union of India, the National Capital Territory of Delhi, Uttar Pradesh and Haryana utilizing the Public Distribution System prevalent in each State with effect from May 2021. While providing dry ration, the authorities of the States shall not insist on an identity card for those migrant labourers who do not possess one at the time and, on the basis of self‑declaration made by the stranded migrant labourers, dry ration shall be given to them. (2) The National Capital Territory of Delhi, Uttar Pradesh and Haryana (for the districts included in the National Capital Region) shall ensure that adequate transport is provided to stranded migrant labourers in the National Capital Region who want to return to their homes. The District Administration, in coordination with Police Administration, may identify such stranded migrant labourers and facilitate their transport either by road or by train. The Union of India may also issue necessary instructions to the Ministry of Railways to take necessary and adequate measures to cater to the needs of migrant labourers. (3) The National Capital Territory of Delhi, Uttar Pradesh and Haryana (for the districts included in the National Capital Region) shall open community kitchens at well‑advertised places in the National Capital Region for stranded migrant labourers so that they and their family members who are stranded could get two meals a day., Subsequent to the order dated 13‑05‑2021, the matter was again heard by the Supreme Court of India on 24‑05‑2021 and, in paragraphs 14 and 15, the Court made the following directions: The Union of India, in its letter dated 26‑04‑2020 (Annexure R‑14), stated that efforts should be made by States and Union Territories to encourage migrant beneficiaries of the National Food Security Act to use the facility of portability under One Nation One Ration Card. The Court directed that migrant workers wherever stranded throughout the country should be provided dry ration under the Atma Nirbhar Bharat Scheme or any other scheme found suitable by the States or the Centre., The writ petition again came for hearing before the Supreme Court of India on 11‑06‑2021, on which day, after hearing learned counsel for the parties including learned counsel for the intervenors, the hearing was closed., The Court heard Shri Tushar Mehta, learned Solicitor General for India, Shri Dushyant Dave and Shri Colin Gonsalves, learned senior counsel for the applicants, as well as learned counsel for the different States and Union Territories., According to a survey carried out by the National Statistics Office in 2017‑2018, there are around 38 crore workers engaged in the unorganized sector. Thus, the number of persons in the unorganized sector is more than one‑quarter of the population of the entire country. These unorganized workers do not have any permanent source of employment and have engaged themselves in small‑time vocations and occupations at various places away from their native places. Their contributions towards different projects and industries make considerable additions to the economic development of the country., Our Constitution enjoins that the ownership and control of the material resources of the community are for promoting the welfare of the people by securing social and economic justice to the weaker sections so as to sub‑serve the common good, to minimize inequalities in income and endeavour to eliminate inequality in status., Both in the first and the second wave of the pandemic, migrant workers were exposed to financial and other hardships due to their limited access to and claim on the welfare resources offered by the States and Union Territories. The migrant labourers are particularly vulnerable to economic regression. A Constitution Bench of the Supreme Court of India in National Textile Workers Union and Others v. P.R. Ramakrishnan and Others (1983) 1 SCC 228, while dealing with the right of workmen of a company, made weighty observations regarding the nature of labour. Justice Bhagwati, speaking for the majority in paragraph 6 of the judgment, observed: The workers therefore have a special place in a socialist pattern of society. They are no more vendors of toil; they are not a marketable commodity to be purchased by the owners of capital. They are producers of wealth as much as capital. They supply labour without which capital would be impotent and they are, at the least, equal partners with capital in the enterprise. Our Constitution has shown profound concern for the workers and given them a pride of place in the new socio‑economic order envisaged in the Preamble and the Directive Principles of State Policy. The Preamble contains the profound declaration pregnant with meaning and hope for millions of peasants and workers that India shall be a socialist democratic republic where social and economic justice will inform all institutions of national life and there will be equality of status and opportunity for all and every endeavour shall be made to promote fraternity ensuring the dignity of the individual. Everyone is assured under Article 14 equality before the law and equal protection of the laws and implicit in this provision is the guarantee of equal remuneration for men and women for the same work or work of a similar nature., When migrant labourers constitute more than one‑quarter of the population of the country, all governments and authorities have to take special care regarding the welfare of these migrant workers. The Parliament has enacted various legislations to safeguard the interest and welfare of migrant labourers, which are noted hereinafter., The Right to Life as guaranteed by Article 21 of the Constitution gives every human being the right to live a life of dignity with access to at least bare necessities of life. To provide food security to impoverished persons is the bounden duty of all States and Governments. The Parliament, with the object of providing food and nutritional security in the human life cycle, enacted the National Food Security Act, 2013. In paragraph 3 of the Statement of Objects and Reasons of the Act it is stated: Ensuring food security of the people continues to be a challenge. The nutritional status of the population, especially of women and children, also needs to be improved to enhance the quality of human resources of the country. The proposed legislation marks a paradigm shift in addressing the problem of food security from the current welfare approach to a rights‑based approach. Besides expanding coverage of the Targeted Public Distribution System, the legislation would confer legal rights on eligible beneficiaries to receive entitled quantities of foodgrains at highly subsidised prices and would also confer legal rights on women and children to receive meals free of charge., Those who have been identified as beneficiaries under the National Food Security Act, 2013 are provided dry rations as per the Centre and State schemes. In the event a migrant labourer is covered under the National Food Security Act and has been issued a ration card under the Act, he is entitled to access dry ration wherever he is, including at his workplace, in accordance with the scheme of the Central Government namely One Nation One Ration Card., Before us, in these proceedings, learned counsel appearing for applicants and intervenors have raised concerns regarding non‑supply of dry ration to a large section of migrant workers who are not covered under the National Food Security Act, 2013 and who do not possess a ration card., Both the Central Government and the State Governments have floated various schemes for unorganized workers, building and construction workers, but the ground reality is that a large number of beneficiaries are deprived of access to these welfare schemes of the Central Government or the State Governments. In this petition, the Court had issued various directions earlier regarding the registration of unorganized workers but the progress has not been satisfactory and rather shows lethargy on the part of the concerned Government., From the affidavits filed by the States it is clear that in most States the stranded migrant labourers who wanted to go to their native places during the second wave of the pandemic have been facilitated by the concerned State Government as per the Court’s directions issued from time to time in this writ petition. Thus, no further directions are required in respect to facilitating the transportation of migrant workers., The main subjects with which the Court is concerned in this proceeding are: (i) Entitlement of dry ration to migrant workers who are not covered by the National Food Security Act, 2013 and who do not possess a ration card; (ii) Implementation of One Nation One Ration Card by States and Union Territories; (iii) Coverage of rural and urban population under the National Food Security Act, 2013; (iv) The Inter‑State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, its working and implementation; (v) Registration of unorganized workers (a) under the 1996 Act and the 2008 Act and the steps taken by different State Governments in the above regard; (b) the project National Database for the Unorganised Workers of the Ministry of Labour and Employment, Government of India; and (c) the mechanism to ensure access by migrant labourers to different welfare schemes of the Central Government and the State Governments; (vi) Community Kitchen for migrant labourers by States and Union Territories; and (vii) Direct Bank Transfer to unorganized workers., Shri Dushyant Dave and Shri Colin Gonsalves, learned senior counsel, submitted that migrant workers are great sufferers in this pandemic and those who do not possess any ration card are entitled to dry ration. They submitted that the Central Government, in the first wave of the pandemic, provided dry ration for two months, i.e., May and June 2020, under the Atma Nirbhar Bharat Scheme. The Union of India filed affidavits dated 23‑05‑2020 and 09‑06‑2021. In the affidavit dated 09‑06‑2021, paragraphs 4 and 8 state: It is further submitted that the Atma Nirbhar Bharat Scheme was valid for only May and June 2020. However, by this Department’s letter dated 20‑05‑2021, States and Union Territories have been advised that they may use various other schemes launched or renewed as detailed above to obtain additional quantities of foodgrains at subsidised rates, as per the need, from the Food Corporation of India, for distribution to selected target groups including other migrants and stranded migrants, as per locally assessed requirements. It is respectfully submitted that, in view of the situation arising due to the spread of the COVID‑19 pandemic during the last year, under the Atma Nirbhar Bharat Package, the Department of Food and Public Distribution, by letter dated 15‑05‑2020, allotted about 8 lakh metric tonnes of additional food grain (4 lakh tonnes per month, i.e., around 10 % of monthly National Food Security Act allocation) covering all States and Union Territories for migrants and stranded migrants at 5 kg per person per month free of cost for a period of two months (May and June 2020). Both migrants and stranded migrants were covered under the scheme, subject to the condition that such migrants are neither covered under the National Food Security Act nor have they been issued State Scheme Public Distribution System cards by the State or Union Territory at that time. However, States and Union Territories later gave approximate requirements for about 2.8 crore total migrant and stranded migrant population. The responsibility for identifying such migrants was given to the respective States and Union Territories., Migrant workers who possess a ration card and are covered under the National Food Security Act, 2013 can avail dry ration utilizing their card even in the State where they have migrated for work. Real difficulty arises with regard to migrant workers who do not possess any card issued under the National Food Security Act or even by the respective States. There is a large number of such migrants who do not possess any card due to poverty and lack of education, but the State cannot abdicate its duty towards such persons, especially in the wake of the pandemic and the events where large numbers of migrant workers are not able to get jobs that satisfy their basic needs., The affidavit of the Union of India indicates that under the Atma Nirbhar Bharat Scheme, issued by the Department of Food and Public Distribution, migrants and stranded migrants were covered and 5 kg per person per month free of cost dry ration was given for a period of two months. It was the States that identified about 2.8 crore migrant population in the first wave of the pandemic, as clearly stated in paragraph 8 of the affidavit. When there is identification by the States of 2.8 crore migrants, there is no difficulty for the State in reaching such migrants and supplying dry ration to those who may still be at their identified places. The Union of India has clearly stated that it is ready and willing to provide additional food grains to the States under various schemes in event such request is made by the States or Union Territories., The Union of India submits that there is no lack of food grains nor is the Central Government shirking its responsibility to provide dry ration to migrant workers. It is submitted by the learned Solicitor General that identification of such migrant workers and distribution of dry ration is to be done by the respective States or Union Territories. He further submits that each State or Union Territory can devise appropriate schemes for providing dry ration to migrant workers., Various States have filed their affidavits. From the affidavits it appears that although some States have devised certain schemes for distribution of dry ration to migrant workers, most States do not have such schemes. Several States have not mentioned any scheme under which, in the second wave of the pandemic, any ration has been distributed to migrant workers. The State of Gujarat referred to a scheme named Annambrahma Scheme which has been implemented again and is currently active, but no details have been given as to how many migrant workers have been provided dry ration in this second wave., It has been stated on behalf of the National Capital Territory of Delhi that a cabinet decision was taken on 25‑05‑2021, whereby dry rations to non‑Public Distribution System beneficiaries shall be provided at the same entitlement as specified under the National Food Security Act, 2013, i.e., 5 kg food grains (4 kg wheat and 1 kg rice per person per month) free of cost to needy persons who do not possess ration cards, including unorganized workers, migrant workers, building and construction workers, domestic help from a school identified in each municipal ward of Delhi. The beneficiary has to visit the designated schools to collect this non‑PDS ration. This scheme was operationalised with effect from 5 May 2021 and is envisaged for 20 lakh beneficiaries., Most of the States have been emphasizing providing food grains free of cost for two months, i.e., May and June 2020. The State of West Bengal stated that there is no scheme for providing dry ration to migrant workers. The States and Union Territories responsible for the Public Distribution System and who are the agency to reach beneficiaries have to devise a scheme to cater to the needs of migrant workers and find ways and means to reach those migrant workers and supply dry ration. Especially during this pandemic, the States and Union Territories have to make extra efforts to reach migrant labourers so that no migrant labourer is denied two meals a day., The Union of India, in paragraphs 7 and 8, mentioned that the Ministry has extended various schemes to enable all States and Union Territories to obtain additional quantities of food grains. The Union of India also referred to a circular dated 20‑05‑2021 issued by the Government of India, Ministry of Consumer Affairs, which states on the subject various food security measures announced during COVID‑19 2021, that in addition to actively promoting the use of portability through One Nation One Ration Card for National Food Security Act beneficiaries, States and Union Territories may also use the different schemes detailed above to obtain additional quantities of food grains, as per the need, from the Food Corporation of India, for distribution to selected target groups including other migrants and stranded migrants, as per locally assessed requirements., As noted above, the Central Government is ready to allocate additional quantities of food grains to the States for supplying food grains to migrant workers after identification. The Central Government may, in consultation with the States, devise a mechanism to reach migrant labourers especially in this pandemic so that dry ration be provided to them., There has been worldwide awareness regarding the right to food for human beings. Our country is no exception. Lately, all Governments have been taking steps and measures to ensure that no human being should be affected by hunger and no one dies out of hunger. The basic concept of food security globally is to ensure that all people, at all times, should get access to basic food for an active and healthy life. The Constitution of India does not have any explicit provision regarding a right to food. The fundamental right to life enshrined in Article 21 of the Constitution may be interpreted to include the right to live with human dignity, which may include the right to food and other basic necessities., The Central Government, having undertaken to distribute additional quantities of foodgrains as demanded by the States and Union Territories for distribution to migrant labourers under some scheme framed by the States, is directed to the Department of Food and Public Distribution (Ministry of Consumer Affairs, Food and Public Distribution) to allocate and distribute foodgrains as per the demand of additional foodgrains from the States for disbursement of dry foodgrains to migrant labourers., The Court further directs the States to bring in place an appropriate scheme for distribution of dry ration to migrant labourers, for which it shall be open for States to ask for allocation of additional foodgrains from the Central Government, which, as directed above, shall provide the additional foodgrains to the State. The State shall consider and bring an appropriate scheme, which may be implemented on or before 31‑07‑2021. Such scheme may be continued and operated till the current pandemic (COVID‑19) continues., One Nation One Ration Card is a scheme implemented by the Government of India providing for nation‑wide portability of the National Food Security Act ration card. Several States have been integrated under the One Nation One Ration Card cluster at the national level. In the affidavit, the Department of Expenditure, Ministry of Finance, has granted additional drawing permission to States for completing the One Nation One Ration Card system. One Nation One Ration Card is an important citizen‑centric reform. Its implementation ensures availability of ration to beneficiaries under the National Food Security Act and other welfare schemes, especially to migrant workers and their families at any Fair Price Shop across the country. To ensure seamless inter‑State portability of the ration card, Aadhaar seeding of all ration cards as well as biometric authentication of beneficiaries through automation of all Fair Price Shops with installation of electronic Point of Sale devices are necessary., As stated above, the Union of India, Department of Expenditure has permitted State‑wise additional borrowing for completion of the One Nation One Ration Card scheme. Shri Tushar Mehta, learned Solicitor General, submitted that four States have not yet implemented the One Nation One Ration Card scheme, namely Assam, Chhattisgarh, Delhi and West Bengal.
id_45	1	Learned counsel appearing for Delhi submits that the Government of the National Capital Territory of Delhi has implemented the One Nation One Ration Card Scheme. Shri Tushar Mehta's submission is that the Government of the National Capital Territory of Delhi has not implemented the scheme fully and only in one circle, i.e., Circle No.63, Seemapuri, where only a handful of transactions with 42 e‑POS machines have been done. The One Nation One Ration Card Scheme is an important welfare measure to extend food security to migrants who are covered under the National Food Security Act. When migrant workers are spread throughout the country, each State has to implement the scheme, which is a necessary welfare measure towards food security for this class of persons. The States are duty‑bound to implement this scheme in the interest of poor and marginal sections of society. When a migrant labourer reaches a particular State for work and is covered by the National Food Security Act, the receiving State must ensure that his rights and entitlement under the Act are not denied merely because he is not in his native State where the ration card was issued., We are of the view that those States which have not yet implemented the One Nation One Ration Card Scheme should do so. The States that have not implemented the scheme are directed to implement it no later than 31 July 2021., Coverage of Rural and Urban population under the National Food Security Act, 2013., Section 3 of the National Food Security Act, 2013 provides for the right to receive foodgrains at subsidised prices by persons belonging to eligible households under the Targeted Public Distribution System. (1) Every person belonging to priority households, identified under subsection (1) of section 10, shall be entitled to receive five kilograms of foodgrains per person per month at subsidised prices specified in Schedule I from the State Government. Households covered under Antyodaya Anna Yojana shall, to the extent specified by the Central Government for each State, be entitled to thirty‑five kilograms of foodgrains per household per month at the prices specified in Schedule I. If the annual allocation of foodgrains to any State under the Act is less than the average annual off‑take of foodgrains for the last three years under the normal Targeted Public Distribution System, the allocation shall be protected at prices determined by the Central Government and the State shall be allocated foodgrains as specified in Schedule IV. (2) The entitlements of the persons belonging to the eligible households shall extend up to seventy‑five per cent of the rural population and up to fifty per cent of the urban population., Section 9 provides for the coverage of population under the Targeted Public Distribution System, which is to be determined by the Central Government. The total number of persons to be covered in rural and urban areas of each State shall be calculated on the basis of population estimates as per the census. The State‑wise coverage under the National Food Security Act was determined by the then Planning Commission (now Niti Aayog) using the National Sample Survey Household Consumption Survey data for 2011‑2012. More than ten years have elapsed since that determination. The Central Government should undertake a fresh determination of State‑wise coverage under the Act, which will increase the number of beneficiaries and benefit a large number of eligible persons., Inter‑State Migrant Workman (Regulation of Employment and Conditions of Service) Act, 1979., The Parliament enacted the Act with the laudable object of protecting migrant workers from a large number of ill‑practices. The Statement of Objects and Reasons notes that the system of employment of inter‑State migrant labour (known in Orissa as Dadan Labour) is exploitative. Dadan Labour is recruited from various parts of the State through contractors or agents called Sardars/Khatadars for work outside the State in large construction projects. The system lends itself to various abuses: promised wages on a piece‑rate basis are often not paid; workers are taken to distant places on payment of railway fare only; no fixed working hours are provided; workers must work every day under extremely poor conditions; and the provisions of various labour laws are not observed., The Twenty‑eighth Session of the Labour Ministers' Conference (New Delhi, 26 October 1976) recommended setting up a small Compact Committee to examine the question and suggest measures for eliminating the abuses. The Committee, constituted in February 1977, recommended a separate Central legislation to regulate the employment of inter‑State migrant workmen, as the provisions of the Contract Labour (Regulation and Abolition) Act, 1970, even after amendment, would not adequately address the malpractices of contractors, Sardars, and Khatadars. The main features of the Bill are: (i) it applies to every establishment employing five or more inter‑State migrant workmen on any day of the preceding twelve months, and to every contractor employing five or more such workmen; (ii) establishments must be registered with officers appointed under the Central or State Government, as applicable; (iii) contractors must obtain licences from both the home State and the host State; (iv) contractors must furnish particulars of the workmen in the prescribed form and issue a pass book to each workman; (v) specific guidelines on wages, displacement allowance, journey allowance, suitable residential accommodation, medical facilities, protective clothing, and other amenities are prescribed; (vi) inspectors are appointed by the appropriate Government to ensure compliance, with power for the home State Government to appoint inspectors in consultation with the host State Government; (vii) inter‑State migrant workmen may raise industrial disputes in either the host State or the home State and may apply for transfer of proceedings; (viii) deterrent punishments are proposed for contraventions., Section 1(4) provides that the Act applies (a) to every establishment in which five or more inter‑State migrant workmen (whether or not in addition to other workmen) are employed or were employed on any day of the preceding twelve months, and (b) to every contractor who employs or employed five or more inter‑State migrant workmen on any day of the preceding twelve months., Section 2 is a definition clause. Sub‑clause (b) defines \contractor\ as a person who, in relation to an establishment, undertakes to produce a given result for the establishment, other than a mere supply of goods, by the employment of workmen or by supplying workmen, and includes a sub‑contractor, Khatadar, Sardar, agent or any other person who recruits or employs workmen. Sub‑clause (e) defines \inter‑State migrant workman\ as any person who is recruited by or through a contractor in one State under an agreement or other arrangement for employment in an establishment in another State, whether or not the principal employer of the establishment is aware of the arrangement., Chapter II deals with the registration of establishments employing inter‑State migrant workmen. Section 6 provides that no principal employer shall employ inter‑State migrant workmen unless a certificate of registration for the establishment is issued under the Act. Chapter III deals with the licensing of contractors. Section 8(2) provides that a licence may contain the terms and conditions of the agreement, remuneration, hours of work, fixation of wages and other essential amenities for the inter‑State migrant workmen. Section 12 imposes a duty on every contractor to furnish particulars in the prescribed form to the specified authority in both the home State and the host State within fifteen days of recruitment or employment., The Inter‑State Migrant Workmen (Regulation of Employment and Conditions of Service) Central Rules, 1980, Rule 21 requires every contractor to furnish the particulars of recruiting and employment of migrant workmen in Form X, either by personal delivery or by registered post, to the specified authorities., Learned counsel appearing for different applicants and intervenors have contended that although the 1979 enactment has been implemented by several States, there is neither proper licensing of contractors nor registration of establishments, resulting in migrant workers being unable to reap the benefits to which they are entitled. References to the State of Karnataka (2017) and the State of Kerala (2018) indicate that the 1979 enactment has not been implemented in those jurisdictions. The legislation, enacted by Parliament as a welfare measure for migrant workers, needs to be strictly implemented. The affidavits filed on behalf of various States and Union Territories do not provide facts and figures on implementation. Non‑implementation adversely affects the rights of migrant workers. Accordingly, a direction is needed for all States and Union Territories to register all establishments and licence all contractors under the Act and to ensure that the statutory duty imposed on contractors to give particulars of migrant workers is fully complied with. The competent authority may also impose conditions relating to service conditions, journey allowance and other facilities as set out in Chapter V of the Act., Registration of Unorganised Workers., In orders passed by this Court on 9 June 2020 and 31 July 2020, we referred to the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 and the Unorganised Workers Social Security Act, 2008. The 1996 Act was enacted by Parliament to regulate the employment and conditions of service of building and other construction workers and to provide for their safety, health and welfare. The Act provides for registration of establishments and for registration of building workers as beneficiaries, with issuance of identity cards. Section 12 of the 1996 Act states that every building worker aged between eighteen and sixty years who has been engaged in any building or other construction work for not less than ninety days during the preceding twelve months shall be eligible for registration as a beneficiary. Applications must be made in the prescribed form, accompanied by a fee not exceeding fifty rupees, and may be appealed within thirty days to the Secretary of the Board. Section 13 mandates that the Board issue an identity card with the worker’s photograph and details of the work performed, which the worker must produce whenever demanded by any officer, inspector or authority., The Unorganised Workers Social Security Act, 2008 was enacted to provide social security and welfare to workers in the unorganised sector, which constitutes more than ninety‑four per cent of total employment in the country. The Statement of Objects and Reasons notes that unorganised workers do not receive adequate social security and that existing welfare schemes for specific groups (beedi workers, non‑coal mine workers, cine workers, handloom weavers, fishermen, etc.) are insufficient. The Unorganised Workers' Social Security Bill, 2007 proposes: (i) a National Social Security Advisory Board to recommend welfare schemes; (ii) State Social Security Advisory Boards to recommend state‑level schemes; (iii) eligibility for social security benefits for registered unorganised workers, who shall be issued a smart identity card with a unique identification number; and (iv) power for the Central and State Governments to make rules to implement the Bill., The Unorganised Workers constitute ninety‑four per cent of the workforce, belonging to poor, less‑educated strata and often unaware of their rights. Section 10 of the Act provides that every unorganised worker who has completed fourteen years of age and makes a self‑declaration of being an unorganised worker shall be eligible for registration. The worker must apply in the prescribed form to the District Administration, which shall register the worker and issue a smart identity card. If a scheme requires a contribution from the worker, benefits are payable only upon payment of such contribution; where the scheme requires a contribution from the Central or State Government, the respective government shall make the contribution regularly., Although the Code on Social Security, 2020 received Presidential assent in August 2020, it has not yet been enforced except for the provision on the use of Aadhaar. Consequently, registration under the 1996 Act and the 2008 Act must continue until the provisions of the Code on Social Security, 2020 are enforced. Registration is pivotal because only after registration can unorganised workers access welfare schemes of the Central and State Governments., We have, in various orders in these proceedings, asked the States and Union Territories to file affidavits regarding the status of registration of workers under the various legislations. The affidavits filed provide details of the steps taken by each jurisdiction., In the affidavit dated 8 June 2021 filed on behalf of the State of the National Capital Territory of Delhi, no details were provided regarding the process of registration of construction workers, inter‑State migrant workers and unorganised workers. However, a note dated 14 June 2021 stated that an online portal for registration of establishments employing migrant workers has been in place since December 2019. The Delhi Inter‑State Migrant Workmen (Regulation of Employment and Conditions of Service) Rules, 1982 were notified on 4 June 1982. Under Section 2(e) of the Act, migrant workers themselves cannot register; the contractor must register them. Regarding the 1996 Act, the Delhi Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Rules, 2002 have been notified, and notices are being issued to employers to register under the Act. Concerning the Unorganised Workers Social Security Act, 2008, it has been subsumed in the Code on Social Security, 2020. The Labour Department, GNCTD is drafting rules under the Code, the Central Government is preparing a National Database of Unorganised Workers (NDUW) and an integrated portal for social security schemes, and a job portal was launched by GNCTD on 27 July 2020 to connect employers with prospective job‑seekers., The State of Gujarat submitted that an estimated 23 lakh inter‑State migrant workers are engaged in various industries, establishments and factories. The e‑nirman portal was launched by the Hon’ble Chief Minister of Gujarat on 8 June 2021 and made operational. Through this portal, construction workers are provided with a smart card containing their details, replacing the earlier physical passbook. The smart card enables workers to directly avail benefits of more than twenty government schemes, including maternity assistance, death and permanent disability assistance, educational assistance and hostel facilities. Simultaneously, Gujarat launched a portal (gujaratuwin.csccloud.in) for registration of unorganised workers, also on 8 June 2021, integrated with over 21,290 Common Service Centres. This portal issues Unorganised Worker Identity Number (U‑WIN) cards and the data will be integrated with the National Database of Unorganised Workers project. District‑wise pockets of unorganised workers such as street vendors, retail workers, fishermen, textile market workers, wiremen, rickshaw drivers, kite makers, vegetable sellers, bidi makers and tailors have been identified, and a registration drive will be carried out to bring the process to their doorstep., The State of Telangana stated that the registration of workers and issuance of identity cards to unorganised workers will be processed soon after receiving the Registration Module from the Government of India, Ministry of Labour and Employment, New Delhi., The State of Chhattisgarh reported that, in compliance with the orders of this Court, approximately 434,658 migrant workers who returned to the State from other states have been benefited according to their eligibility under various Central and State Government schemes. Registration of unorganised workers is being done through an online portal, and approximately 1,433,702 unorganised workers have been registered., The State of Uttar Pradesh is maintaining a robust system of registration of migrant workers as they enter the State. A portal on the website of the Relief Commissioner has been created, on which all relevant details of migrant workers are uploaded in real time. According to the Director, Training and Employment, Uttar Pradesh, 3,784,255 migrant workers returned to their native places during the entire COVID‑19 pandemic period. Their skill mapping has been completed and 1,044,710 labourers have already been given employment in various State Government schemes. As of 8 June 2021, details of 379,220 migrant workers have been registered and their skills mapped on the rahat.up.nic.in portal since 1 April 2021. The portal is also being used to identify workers other than the registered ones for availing the sustenance allowance of Rs 1,000 per month announced by the State Cabinet on 15 May 2021. As of 8 June 2021, data of 1,292,247 persons have been uploaded on the rahat portal since 18 May 2021., The State of Jharkhand submitted that during the second phase of lockdown, an additional 39,853 persons were registered under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 (BOCW Act). Benefits have been extended to 22,830 beneficiaries, and a total of Rs 13,98,15,919 has been disbursed under various schemes run by the Jharkhand Building and Other Construction Workers Welfare Board, Ranchi.
id_45	2	It is further submitted that directions have been issued to Officers in the State by Labour Commissioner, Jharkhand vide letter No.557 dated 28.05.2021 and letter No.577 dated 08.06.2021 to complete the process of registration of unorganised workers in the area under their jurisdictions and the following steps have been taken: Under Unorganised Workers Social Security Act, 2008, 14.71 lakhs unorganized workers have been registered till now. Five Schemes have been launched by the State for the benefit of unorganized workers. In the financial year 2020-2021 total number of registered beneficiaries sum of Rs.51,50,650/- has been disbursed under different schemes., The State of Bihar has submitted details regarding registration of migrant labourers in the affidavit dated 21.05.2021. About 19 lakh migrant labourers were registered and brought under skill mapping through the portal app on their arrival at their blocks/Block Quarantine Camps. About 11 lakh migrant labourers were registered under Shramik Panjikaran Portal of the Labour Resource Department. About 2 lakh unorganized workers have been enrolled under Pradhan Mantri Shram Yogi Maandhan Yojana., Regarding the development of National Data Base for the Unorganised Workers (NDUW), it is respectfully submitted that the Ministry of Labour and Employment, Government of India vide its letter D.O.No. M16011/1/2019-SS-III dated 28.10.2020 has informed the State Government that it has started the development of a comprehensive National Data Base for the Unorganized Workers (NDUW) including migrant and construction workers. The portal may be used for the delivery of various Social Security/Welfare Schemes. It was also informed that the NDUW portal is being developed under the technical guidance of the National Informatics Centre., It is further submitted that it was expected from the department to provide a comprehensive action plan for the registration of unorganized workers along with the details of two Nodal Officers. The department through its letter No.1/UL.10-05/2020-21 dated 08.04.2021 nominated the Labour Commissioner, Bihar and Joint Labour Commissioner, Bihar as the nodal officers for the implementation of the National Data Base for the Unorganised Workers (NDUW). Further, the department also provided the comprehensive action plan for the registration of unorganized workers to the Ministry of Labour and Employment vide letter No.-1/UL.10-05/2020107 dated 16.04.2021., The Karnataka Building and Other Construction Workers Welfare Board under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996 has computerized the registration process and the eligible building and other construction workers are registered through the Seva Sindhu portal. Once registered, smart cards with unique identity numbers are provided to the workers. The note submitted on behalf of the State of Karnataka also refers to 19 welfare schemes formulated by the Karnataka Building and Other Construction Workers Board. With regard to the Unorganised Workers Social Security Act, 2008, it has been stated that the Karnataka State Unorganised Workers Social Security Board is functioning under the Labour Department of the State of Karnataka in registering 11 categories of unorganised sector workers on the web portal ksuwssb.in., The Government of West Bengal in its affidavit has referred to a scheme under which a cash benefit of Rs.1,000/- was transferred to the unorganized workers who were permanent residents of West Bengal and not receiving any benefit from any Government scheme. No details have been given regarding the process of registration under the aforesaid two Acts., With regard to registration of migrant workers, the following is stated: The Panchayat and Rural Development Department through Gram Panchayat machinery in rural areas and the Urban Administration Department through their urban local bodies in urban areas are in process of compiling information with respect to all categories of migrants and their families returning to their residences. A portal named PRAVASISHAMIK has been launched wherein migrants returning to their residences in Madhya Pradesh are registered by the Panchayat and urban body local staff respectively. A total of 41,392 migrant workers have been registered on this portal till 01.06.2021. Besides the above, registration of unorganized workers had started in the State in the year 2018 under the Mukhyamantri Jan Kalyan (SAMBAL) Yojana. Under the said scheme, approximately 1.47 lakh unorganised workers with complete database have so far been registered., With regard to registration of unorganized workers, it has been stated that under the Unorganised Workers Social Security Act, 2008, Maharashtra Unorganised Workers Social Security Rules, 2013 have been framed. The Maharashtra Social Security Board was constituted on 03.04.2018. Registration under the Unorganised Workers Social Security Act, 2008 has yet to start, but to date, around 588,304 workers have been enrolled under Pradhan Mantri Shram Yogi Maandhan Yojana through Common Service Centres since March 2019. Further, the unorganized workers will also be given benefits of various schemes by the State Government, such as provident fund, financial assistance in case of injury at workplace, housing schemes, scholarship scheme for children, skill development, funeral benefits, and old age homes., In exercise of Section 18 of the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996, the State has constituted the Maharashtra Building and Other Construction Workers Welfare Board. The Board has undertaken various measures to register construction workers. It has implemented four special registration drives in the last two years across Maharashtra. The monthly contribution of registered construction workers is reduced to Rs.1/- per month from Rs.5/- per month. The Board is taking help of NGOs, workers’ unions and local representatives for registration of construction workers. Monitoring committees under the chairmanship of district collectors are also constituted for registration, renewal and benefit distribution. Benefit distribution programmes were conducted in the presence of the Chief Minister, Labour Minister, Guardian Minister of the concerned district and a local representative. As a result, the total registration of construction workers till 15.05.2021 is 2,553,519 and active registered construction workers are 72., In our last order, we referred to an earlier order of the Supreme Court of India dated 21.08.2018 passed in Special Leave Petition (Criminal) No. 150 of 2012. The Supreme Court of India directed the Ministry of Labour and Employment to make available the module to all States and Union Territories for purposes of registration under the Unorganised Workers Social Security Act, 2008. The order stated: Mr. Vinod Kumar, Director, Ministry of Labour and Employment and Mr. Ajit Kumar Dung Dung, Under Secretary, RSBY, are present before the Supreme Court of India. The Ministry of Labour and Employment is now involved in the process of finalising a registration module for unorganized workers and after the security audit it will be ready by the end of December 2018. Thereafter it will be made available to the States/Union Territories for further process of registration and issuance of paper identity cards. The Chief Secretary of all the States and Administrators of all the Union Territories were directed to start registering 10 % of the estimated number of workers every month starting from January 2019 and submit a report to the Supreme Court of India by 31.01.2019., In spite of the above direction issued on 21.08.2018, the Ministry of Labour and Employment has not yet been able to provide the module to all States and Union Territories for the purpose of registration. Several States have stated in their affidavits that they are waiting for the module to be provided by the Ministry of Labour and Employment to proceed further with the registration of unorganized workers. A press release dated 05.05.2021 of the Ministry of Labour and Employment states: Section 142 of the Social Security Code, 2020 has been notified by the Ministry of Labour and Employment covering applicability of Aadhaar. The notification will enable the Ministry to collect Aadhaar details for the database of beneficiaries under various social security schemes. The National Data Base for unorganised workers (NDUW) is at an advanced stage of development by the National Informatics Centre. The portal is aimed at collection of data for unorganised workers including migrant workers for the purpose of giving benefits of the various schemes of the Government. An interstate migrant worker can register himself on the portal on the basis of submission of Aadhaar alone. Union Minister of State (Independent Charge) for Labour and Employment Shri Santosh Gangwar has clarified that the section under the Social Security Code has been notified only for collection of data of workers including migrant workers. No benefit will be denied to workers for lack of Aadhaar., We specifically directed the Union of India by our order dated 24.05.2021 to file a detailed affidavit with regard to the process of registration of unorganized workers as undertaken by the Ministry of Labour and Employment. In pursuance of our direction, an affidavit was filed by the Union of India dated 09.06.2021. Paragraphs 16, 17 and 18 of the affidavit state: 16. The major technical as well as other operational issues have been resolved and development of the portal had commenced. However, the recent outbreak of COVID-19 has impacted the development of the portal as many of the personnel associated with the project were affected. The Ministry of Labour and Employment has already released the first installment of Rs.45.39 crore to National Informatics Centre Services Inc. in January/February 2021 for required development work and necessary purchases of hardware and software. 17. National Informatics Centre has been tasked to prepare and hand over the NDUW portal at the earliest, preferably in the next three to four months, to the State/UT governments to carry out the registration of unorganised workers through their districts and state level administrative machinery. It will be the responsibility of State/UT governments to populate the data by mobilising unorganised workers to register in their respective States/UTs through Common Service Centres, State Seva Kendras, Labour Facilitation Centres, Digital Seva Kendras under Department of Posts etc. A comprehensive action plan is being prepared in the Ministry along with monthly measurable milestones to monitor the registration work. Workers will also be able to register themselves through a mobile app or the NDUW portal in a self‑mode or assisted mode. 18. The Central Government is committed to developing a comprehensive, dynamic and useful National Database for Unorganised Workers (NDUW) including migrant workers, gig workers, platform workers, building/construction workers, domestic workers and similar other workers, in order to ensure that they can be the rightful beneficiaries of the various schemes/benefits by the Central Government and the State Governments., Regarding registration of unorganized workers, the stand taken by the Union of India does not commend us. The Supreme Court of India as early as 21.08.2018 directed the Ministry of Labour and Employment to make available a module to the States/Union Territories for the purpose of registration. No exception can be taken to the Central Government deciding to create the NDUW portal for facilitating the States and Union Territories to register so that a national database of unorganised workers may become available. The affidavit states that National Informatics Centre has been required to develop a portal for which an amount of Rs.45.39 crore was released in January/February 2021. When unorganized workers are waiting for registration and to reap the benefit of various welfare schemes, the apathy and lackadaisical attitude of the Ministry of Labour and Employment is unpardonable. There was urgency in finalising the portal looking to the pandemic and the dire need of unorganized workers to receive benefits. The Ministry’s failure to complete the module even though directed as early as 21.08.2018 shows that the Ministry is not alive to the concern of migrant workers and the non‑action of the Ministry is strongly disapproved. We further direct the Secretary, Ministry of Labour and Employment to ensure that the NDUW portal is finalised and implementation commences on or before 31.07.2021. The Secretary should file a report to that effect within one month thereafter., To provide access to migrant workers to different schemes of the State Government and Central Government, registration is a must. We impress upon the Central Government as well as States and Union Territories to complete the portal for registration under the National Database for Unorganised Workers (NDUW) project and implement the same, which may commence not later than 31.07.2021. After registration is complete, correction and updating of the data should always be possible as part of the process. Only after registration of the workers can the States and the Centre extend the benefits of the welfare schemes to them. Prior to that, unless registration is complete, claims by the States and Union Territories that they have implemented various welfare schemes for migrant workers and unorganized workers remain only on paper without giving any benefit to unorganized workers., Most of the States during this pandemic have been running community kitchens for migrant labourers and other persons who needed two meals a day due to various reasons including cessation of employment. The Supreme Court of India had also directed the States to run community kitchens for migrant labourers. States in their affidavits have given details regarding the running of community kitchens. The State of Karnataka states that community kitchens called Indira Canteens are being run in the City Corporation/Municipal Corporation limits. The State of Kerala is providing community kitchens to stranded migrant workers during the COVID‑19 pandemic in 2020 as per Government orders dated 26.03.2020 and 03.04.2020. Kerala Government has issued combined guidelines for the operation of the scheme Hunger Free Kerala – Janakeeya Hotel and Community Kitchens under the Local Self‑Government Institutions for providing food packets to eligible categories. On 11.05.2021 further guidelines were issued for the operation of Janakeeya Hotels and Community Kitchens. The State of Punjab submits that 38 community kitchens are working in different districts of Punjab. The State of Telangana reports that 140 Annapurna Canteens are available in Greater Hyderabad Municipal Corporation limits where food is given at Rs.5 per meal. The State of Tamil Nadu states that, as per Government policy, everyone can avail food free of cost during the lockdown period at Government‑run canteens functioning as community kitchens in various Municipal Corporations of Tamil Nadu. The Government of NCT of Delhi states that, in view of the curfew and lockdown announced on 19.04.2021, the Government of NCT of Delhi made various arrangements for the relief and welfare of migrant labourers. Hunger Relief Centres for migrant workers, daily workers and other needy persons have been established in all 11 districts of Delhi. Food packets are being provided at construction sites. The State of Uttar Pradesh, vide G.O. dated 15.04.2021, directed temporary shelter camps/quarantine facilities/screening camps to be set up to accommodate migrant workers returning to their native places during the second wave of the pandemic, whereby in temporary camps two complete meals a day were provided. In West Bengal, the Maa Community Kitchen Scheme is in operation in Kolkata Municipal Corporation area and other municipalities/corporations since March 2021 where good food at a subsidised rate of Rs.5 per meal is provided, which scheme can be availed by anyone. There are 150 canteens running across 23 districts. The State of Madhya Pradesh states that under the Deendayal Antyoday Rasoi Scheme 100 kitchen centres are operating since February 2021 in 52 district headquarters and in six other prominent religious towns. The State of Maharashtra submits that presently there are no migrant workers stranded in the State, hence there is no question of providing community kitchens to stranded migrant workers. The State refers to a scheme titled Shiv Bhojan Thali, which provides meals to the public at Rs.10., It is true that after relaxation of lockdown and restrictions, all industries have started functioning, providing employment to a large number of people including migrant workers but still there are migrant labourers who have not got any employment. The States have been running community kitchens during the pandemic. We are of the view that the State should run community kitchens at prominent places where large numbers of migrant labourers are present, and these community kitchens should be continued at least till the pandemic continues. The States should advertise places where facilities of community kitchens/subsidised meals are provided so that no migrant labourer who is unable to arrange his two meals can remain hungry., All States have filed their affidavits and most of the States have made direct bank transfers to construction workers who are registered under the Building and Other Construction Workers (Regulation of Employment and Conditions of Service) Act, 1996. The amount ranging from Rs.1,000 to Rs.6,000 has been transferred to the construction workers. Few States have also made transfers to other categories including auto‑rickshaw drivers and some other categories. The right of direct bank transfer flows from a particular scheme framed by a State. In event a person including a migrant labourer is entitled to any direct bank transfer from any scheme, he can claim such entitlement. No State has pleaded on record a scheme where a conscious decision has been taken to make direct bank transfers to migrant labourers. The direct bank transfer being a matter of policy and within the domain of the State, no direction can be issued by the Supreme Court of India for any direct bank transfer as claimed by certain applicants/intervenors. We only observe that if any person is entitled to direct bank transfer as per an existing scheme in any State, he can avail the benefit by the mechanism provided in the policy decision., In view of the foregoing discussions and our conclusions, we dispose of the writ petitions with the following directions: (i) The Central Government is directed to develop the portal in consultation with the National Informatics Centre for registration of unorganized labourers/migrant workers. The Central Government as well as the respective States and Union Territories are directed to complete the process of the portal for registration under the National Data Base for Unorganised Workers (NDUW Project) and implement the same, which may commence not later than 31.07.2021. The process of registration of unorganized labourers/migrant workers is to be completed at the earliest, but not later than 31.12.2021. All concerned States/Union Territories and the licence holders/contractors and others shall cooperate with the Central Government to complete the registration of migrant workers and unorganized labourers so that the benefits of the welfare schemes declared by the Central Government/State Governments/Union Territories be available to them. (ii) The Central Government, having undertaken to distribute additional quantity of foodgrains as demanded by the States/Union Territories for distribution to migrant labourers under some scheme framed by the States, is directed to allocate and distribute foodgrains as per the demand of additional foodgrains from the States for disbursement of dry foodgrains to migrant labourers. (iii) The States are directed to bring in place an appropriate scheme for distribution of dry ration to migrant labourers, which shall be open for States to ask for allocation of additional foodgrains from the Central Government, which shall provide the additional foodgrains to the State. The scheme may be implemented on or before 31.07.2021 and may be continued till the current pandemic (COVID‑19) continues. (iv) The States that have not yet implemented the One Nation One Ration Card scheme are directed to implement the same by 31.07.2021. (v) The Central Government may undertake exercise under Section 9 of the National Food Security Act, 2013 to re‑determine the total number of persons to be covered in the rural and urban areas of the State. (vi) All the States/Union Territories are directed to register all establishments and licence all contractors under the Contract Labour (Regulation and Abolition) Act, 1979 and ensure that the statutory duty imposed on the contractors to give particulars of migrant workers is fully complied with. (vii) The State/Union Territories are directed to run community kitchens at prominent places where large numbers of migrant labourers are found for feeding those migrant labourers who do not have sufficient means to procure two meals a day. The running of the community kitchens should be continued at least till the pandemic (COVID‑19) continues., In view of the above directions, this writ petition and Writ Petition (C) No. 916 of 2020 are disposed of.
id_450	0	By presenting this petition under Section 25 of the Code of Civil Procedure, 1908, the petitioner-wife seeks transfer of proceedings instituted by the respondent-husband under Section 25 of the Guardianship Act, 1890, from the Family Court, West District, New Delhi or any other court of competent jurisdiction at New Delhi, on the grounds urged therein., This transfer petition was considered by an Honourable Judge on 14 August 2023. In the third paragraph it has been recorded that the petitioner-wife is residing in New Delhi. According to the petitioner-wife, she has been residing in Chandigarh although she has her office in Panchkula., Since there has been an erroneous recording of the place of residence of the petitioner-wife in the third paragraph of the order dated under the Guardians and Wards Act, 1890 bearing Case No. GW 3/2023, titled , from the Court of the Civil Judge, Senior Division, Chandigarh to 14 August 2023, an application (Interim Application No. 171122 of 2023) has been moved on her behalf for rectification of the said order dated 14 August 2023., Interim Application No. 171122 of 2023 stands disposed of by clarifying that the order dated 14 August 2023 recording that the place of residence of the petitioner-wife is Delhi should be read as Chandigarh., By the said order dated 14 August 2023, notice was issued to the respondent-husband. He has entered appearance and has also filed a counter affidavit., In the presence of the learned counsel for the parties, the transfer petition is taken up for consideration. The prayer for transfer is essentially based on the apprehension of the petitioner-wife that since she has been serving on a transferable post and there is an imminent possibility of her transfer out of Panchkula, the proceedings of GW 3/2023 may be transferred to the courts at New Delhi where matrimonial proceedings between the parties are pending., The aforesaid prayer of the petitioner-wife is vehemently opposed by learned counsel for the respondent-husband. According to him, the child of the parties is presently in the custody of the petitioner-wife and he has been residing with her in Chandigarh; and, without caring for the interest of the child, the petitioner-wife seeks to have the proceedings transferred from a court which is 2 kilometres away from his child's residence to a court which is 250 kilometres away., Having bestowed serious consideration to the rival contentions, the Family Court, West District, New Delhi is of the view that no order for transfer ought to be passed on mere assumptions and apprehensions of the parties. As at present, Panchkula remains to be the place of office of the petitioner-wife and it is also not in dispute that Chandigarh is the place of her residence as well as that of the child. The interest of the child being of paramount importance, at this stage, this Court finds no reason to grant the prayer for transfer., The Transfer Petition stands dismissed, without costs. Pending application(s), if any, shall stand disposed of., Transfer Petition(s) (Civil) No(s). 2154/2023 Date: 22 September 2023. This matter was called on for hearing today. For petitioner(s): Mr. Akanksha Sisodia, Advocate; Mr. Pulkit Tare, Assistant Officer Representative. For respondent(s): Mr. Setu Niket, Advocate; Ms. Esha Mazumdar, Advocate; Mr. Azmat Hayat Amanullah, Assistant Officer Representative; Mr. Chaitanya Kamal, Advocate. Upon hearing the counsel the Family Court, West District, New Delhi made the following: Interim Application No. 171122 of 2023 (application for rectification) stands disposed of. The Transfer Petition stands dismissed in terms of the signed order. Pending application(s), if any, shall stand disposed of.
id_451	0	The petitioner in this writ petition is seeking the following reliefs: a) issue a writ of mandamus or any other writ or order or direction the Respondent No.1 and 2 to follow representation of the Petitioner at Annexure-L dated 29.08.2013 and release the funds that are kept aside by the Respondent No.2 Bank Branch. b) issue a writ of mandamus or any other writ or order or direction directing the Respondent No.1 Bank to compensate a sum of Rs.10,00,000/- (Rupees Ten Lakhs) for the damages caused to the petitioner and also the interest payable to the said amount. c) to grant such other relief/s as this Honourable Supreme Court of India deems fit to grant in the circumstances of the case, in the interest of justice and equity., It is the case of the petitioner – MANSA Centre for Development and Social Action that it is a registered society under the Societies Registration Act, 1860. The petitioner has obtained permanent registration bearing No.094520845 under the Foreign Contribution (Regulation) Act, 2010 (for short) from the Ministry of Home Affairs, having the designated Savings Bank account with Respondent No.2 Bank branch bearing No.03810900000195. It is stated that even though there was sufficient funds in the aforementioned account, Respondent No.2 has dishonoured the cheque citing insufficient funds and has rejected certain cheques issued from the above account. On enquiry, Respondent No.2, by handing over a letter to the petitioner, has stated that an amount of Rs.29,12,890.96 has been kept aside and that any remittance being received from \Dan Church Aid\ can be credited to the petitioner’s account only after receiving appropriate approvals/clearance from the Ministry of Home Affairs and as such, the bank was constrained to freeze the credit in the petitioner’s account. The petitioner states that a representation has been given to Respondent No.2 Branch Manager, that the petitioner organisation has completely utilised the funds received by the \Dan Church Aid\ and conducted several programmes and the said project agreement with the \Dan Church Aid\ is complete and closed on 31.12.2012 and thereafter, the petitioner has not received any amount from \Dan Church Aid\ and the funds in the account were of other funding agencies including Action Aid and, as such, the petitioner was entitled to the amount., It is stated in the petition that since the amount has already been utilised and the petitioner’s account shows that the funds now frozen by the respondent bank are the funds that the petitioner organisation has received from other donors and not the fund of Dan Church Aid. As such, the action of Respondent No.1 organisation, freezing the fund is highly arbitrary and high‑handedness on the part of Respondent No.1., Respondent Nos.1 and 2 have filed their statement of objections, inter alia, contending that the action on the part of the respondents is in view of the fact that the Government of India, Ministry of Home Affairs, Foreign Contribution (Regulation) Act unit has directed the respondents not to credit the amount received from Dan Church Aid into their account till further instructions from the ministry. In view of the instruction issued under Section 46 of the Foreign Contribution (Regulation) Act, 2010, the same has been followed and further, it is stated that the Reserve Bank of India (RBI) has directed to withhold the amounts received from \Dan Church Aid\ without clearance of the Ministry of Home Affairs as per the Regulations 35(A) of the Banking Regulation Act, 1949 and the respondents have withheld the credit amount received from \Dan Church Aid\. It is the contention of the respondents that merely having a permanent registration under the Foreign Contribution (Regulation) Act, 2010 does not automatically get the amount credited to the designated account; it is subject to the clearance by the Ministry of Home Affairs., Learned counsel for Respondent No.4 along with a memo has produced the copy of the letter dated 20.11.2018 issued by the Director (Monitoring Unit), Foreigners Division, (Foreign Contribution (Regulation) Act Wing) Ministry of Home Affairs, Government of India addressed to the Additional Solicitor General of India; the said memo annexed with document is placed on record., Heard Sri Siji Malayil, learned counsel for the petitioner; Sri V.K. Sreenath, learned counsel for Respondent Nos.1 and 2 and Sri H. Shanthi Bhushan, learned Deputy Solicitor General for Respondent No.4 and perused the entire material on record., Supreme Court of India has carefully considered the rival contentions urged by the learned counsel for the parties and perused the entire material on record., The Foreign Contribution (Regulation) Act, 1976 (49 of 1976) was enacted noticing that some of the foreign countries were funding individuals, associations, political parties, candidates for elections, correspondence, columnists, editors, owners, printers or publishers of newspapers and they were extending hospitality. The effects of such funding and hospitality were quite noticeable and to have control over such funding and hospitality and to regulate the acceptance and utilisation of the foreign contribution or foreign hospitality, by certain persons or associations, with a view to ensuring that parliamentary institutions, political associations and academic and other voluntary organisations as well as individuals working in the important areas of national life may function in a manner consistent with the values of a sovereign democratic republic, and for matters connected therewith or incidental thereto the said Act was enacted. Since its enactment in 1976, several deficiencies had been found and it was proposed to enact a fresh law on the subject by repealing the Act 49 of 1976. Accordingly, the Foreign Contribution (Regulation) Bill was introduced in Parliament and by the Act 42 of 2010, the Foreign Contribution (Regulation) Bill having been passed by both the Houses of Parliament received the assent of the President on 26.09.2010 and it came on the Statute Book., The object of the Foreign Contribution (Regulation) Act, 2010 (42 of 2010) is to consolidate the law to regulate the acceptance and utilisation of foreign contribution or foreign hospitality by certain individuals or associations or companies and to prohibit acceptance and utilisation of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected therewith or incidental thereto. The definition of the Foreign Contribution is mentioned under Section 2(h) of the said Act, which reads as under: 2(h) \foreign contribution\ means the donation, delivery or transfer made by any foreign source, (i) of any article, not being an article given to a person as a gift for his personal use, if the market value, in India, of such article, on the date of such gift, is not more than such sum as may be specified from time‑to‑time by the Central Government by the rules made by it in this behalf; (ii) of any currency, whether Indian or foreign; (iii) of any security as defined in clause (h) of Section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956) and includes any foreign security as defined in clause (o) of Section 2 of the Foreign Exchange Management Act, 1999 (42 of 1999)., Section 2(m) of the Act defines the \person\ which reads as under: 2(m) \person\ includes (i) an individual; (ii) a Hindu undivided family; (iii) an association; (iv) a company registered under Section 25 of the Companies Act, 1956. Relevant sections to be considered in this petition of the Foreign Contribution (Regulation) Act are Sections 3, 4 and 9 of Chapter II and Sections 11 and 12 of Chapter III., Section 3 reads as under: 3. Prohibition to accept foreign contribution. - (1) No foreign contribution shall be accepted by any (a) candidate for election; (b) correspondent, columnist, cartoonist, editor, owner, printer or publisher of a registered newspaper; (c) public servant, Judge, Government servant or employee of any corporation or any other body controlled or owned by the Government; (d) member of any Legislature; (e) political party or office‑bearer thereof; (f) organisation of a political nature as may be specified under sub‑section (1) of Section 5 by the Central Government; (g) association or company engaged in the production or broadcast of audio news or audio‑visual news or current affairs programmes through any electronic mode, or any other electronic form as defined in clause (r) of sub‑section (1) of Section 2 of the Information Technology Act, 2000 (21 of 2000) or any other mode of mass communication; (h) correspondent or columnist, cartoonist, editor, owner of the association or company referred to in clause (g)., Section 4 reads as under: 4. Persons to whom Section 3 shall not apply. - Nothing contained in Section 3 shall apply to the acceptance, by any person specified in that section, of any foreign contribution where such contribution is accepted by him, subject to the provisions of Section 10, (a) by way of salary, wages or other remuneration due to him or to any group of persons working under him, from any foreign source or by way of payment in the ordinary course of business transacted in India by such foreign source; or (b) by way of payment, in the course of international trade or commerce, or in the ordinary course of business transacted by him outside India; or (c) as an agent of a foreign source in relation to any transaction made by such foreign source with the Central Government or State Government; or (d) by way of a gift or presentation made to him as a member of any Indian delegation, provided that such gift or present was accepted in accordance with the rules made by the Central Government with regard to the acceptance or retention of such gift or presentation; or (e) from his relative; or (f) by way of remittance received, in the ordinary course of business through any official channel, post office, or any authorised person in foreign exchange under the Foreign Exchange Management Act, 1999 (42 of 1999); or (g) by way of any scholarship, stipend or any payment of like nature: Provided that in case any foreign contribution received by any person specified under Section 3, for any of the purposes other than those specified under this section, such contribution shall be deemed to have been accepted in contravention of the provisions of Section 3., Section 9 reads as under: 9. Power of Central Government to prohibit receipt of foreign contribution, etc., in certain cases. - The Central Government may (a) prohibit any person or organisation, not specified in Section 3, from accepting any foreign contribution; (b) require any person or class of persons, not specified in Section 6, to obtain prior permission of the Central Government before accepting any foreign hospitality; (c) require any person or class of persons not specified in Section 11, to furnish intimation within such time and in such manner as may be prescribed as to the amount of any foreign contribution received by such person or class of persons as the case may be, and the source from which and the manner in which such contribution was received and the purpose for which and the manner in which such foreign contribution was utilised; (d) without prejudice to the provisions of subsection (1) of Section 11, require any person or class of persons specified in that sub‑section to obtain prior permission of the Central Government before accepting any foreign contribution; (e) require any person or class of persons, not specified in Section 6, to furnish intimation, within such time and in such manner as may be prescribed, as to the receipt of any foreign hospitality, the source from which and the manner in which such hospitality was received: Provided that no such prohibition or requirement shall be made unless the Central Government is satisfied that the acceptance of foreign contribution by such person or class of persons, as the case may be, or the acceptance of foreign hospitality by such person, is likely to affect prejudicially (i) the sovereignty and integrity of India; (ii) public interest; (iii) freedom or fairness of election to any Legislature; (iv) friendly relations with any foreign State; or (v) harmony between religious, racial, social, linguistic or regional groups, castes or communities. The Central Government under Section 9 has been authorised to: (i) prohibit any person or organisation, not specified in Section 3, from accepting any foreign contribution; (ii) require any person or class of persons, not specified in Section 6, to obtain prior permission of the Central Government before accepting any foreign hospitality; (iii) require any person or class of persons not specified in Section 11, to furnish intimation within the specified time and in the specified manner, as to the amount of any foreign contribution received by such person or class of persons and the source from which and the manner in which such contribution was received and the purpose for which and the manner in which such foreign contribution was utilised., Section 11 of Chapter III states about the registration of certain persons with the Central Government which reads as under: 11. Registration of certain persons with Central Government. - (1) Save as otherwise provided in this Act, no person having a definite cultural, economic, educational, religious or social programme shall accept foreign contribution unless such person obtains a certificate of registration from the Central Government: Provided that any association registered with the Central Government under Section 6 or granted prior permission under that section of the Foreign Contribution (Regulation) Act, 1976 (49 of 1976), as it stood immediately before the commencement of this Act, shall be deemed to have been registered or granted prior permission, as the case may be, under this Act and such registration shall be valid for a period of five years from the date on which this section comes into force. (2) Every person referred to in subsection (1) may, if it is not registered with the Central Government under that sub‑section, accept any foreign contribution only after obtaining the prior permission of the Central Government and such prior permission shall be valid for the specific purpose for which it is obtained and from the specific source: Provided that the Central Government, on the basis of any information or report, and after holding a summary inquiry, has reason to believe that a person who has been granted prior permission has contravened any of the provisions of this Act, it may, pending any further inquiry, direct that such person shall not utilise the unutilised foreign contribution or receive the remaining portion of foreign contribution which has not been received or, as the case may be, any additional foreign contribution, without prior approval of the Central Government: Provided further that if the person referred to in sub‑section (1) or in this subsection has been found guilty of violation of any of the provisions of this Act or the Foreign Contribution (Regulation) Act, 1976 (49 of 1976), the unutilised or unreceived amount of foreign contribution shall not be utilised or received, as the case may be, without the prior approval of the Central Government. (3) Notwithstanding anything contained in this Act, the Central Government may, by notification in the Official Gazette, specify (i) the person or class of persons who shall obtain its prior permission before accepting the foreign contribution; or (ii) the area or areas in which the foreign contribution shall be accepted and utilised with the prior permission of the Central Government; or (iii) the purpose or purposes for which the foreign contribution shall be utilised with the prior permission of the Central Government; or (iv) the source or sources from which the foreign contribution shall be accepted with the prior permission of the Central Government., Section 12 reads as under: 12. Grant of certificate of registration. - (1) An application by a person, referred to in Section 11 for grant of certificate or giving prior permission, shall be made to the Central Government in such form and manner and along with such fee, as may be prescribed. (1A) Every person who makes an application under sub‑section (1) shall be required to open \FCRA Account\ in the manner specified in Section 17 and mention details of such account in his application. (2) On receipt of an application under sub‑section (1), the Central Government shall, by an order, if the application is not in the prescribed form or does not contain any of the particulars specified in that form, reject the application. (3) If on receipt of an application for grant of certificate or giving prior permission and after making such inquiry as the Central Government deems fit, it is of the opinion that the conditions specified in sub‑section (4) are satisfied, it may, ordinarily within ninety days from the date of receipt of application under sub‑section (1), register such person and grant him a certificate or give him prior permission, as the case may be, subject to such terms and conditions as may be prescribed: Provided that in case the Central Government does not grant, within the said period of ninety days, a certificate or give prior permission, it shall communicate the reasons therefor to the applicant: Provided further that a person shall not be eligible for grant of certificate or giving prior permission, if his certificate has been suspended and such suspension of certificate continues on the date of making application. (4) The following shall be the conditions for the purposes of sub‑section (3), namely: (a) the person making an application for registration or grant of prior permission under sub‑section (1), (i) is not fictitious or benami; (ii) has not been prosecuted or convicted for indulging in activities aimed at conversion through inducement or force, either directly or indirectly, from one religious faith to another; (iii) has not been prosecuted or convicted for creating communal tension or disharmony in any specified district or any other part of the country; (iv) has not been found guilty of diversion or mis‑utilisation of its funds; (v) is not engaged or likely to engage in propagation of sedition or advocate violent methods to achieve its ends; (vi) is not likely to use the foreign contribution for personal gains or divert it for undesirable purposes; (vii) has not contravened any of the provisions of this Act; (viii) has not been prohibited from accepting foreign contribution; (b) the person making an application for registration under sub‑section (1) has undertaken reasonable activity in its chosen field for the benefit of the society for which the foreign contribution is proposed to be utilised; (c) the person making an application for giving prior permission under subsection (1) has prepared a reasonable project for the benefit of the society for which the foreign contribution is proposed to be utilised; (d) in case the person being an individual, such individual has neither been convicted under any law for the time being in force nor any prosecution for any offence pending against him; (e) in case the person being other than an individual, any of its directors or office bearers has neither been convicted under any law for the time being in force nor any prosecution for any offence is pending against him; (f) the acceptance of foreign contribution by the person referred to in sub‑section (1) is not likely to affect prejudicially (i) the sovereignty and integrity of India; (ii) the security, strategic, scientific or economic interest of the State; (iii) the public interest; (iv) freedom or fairness of election to any Legislature; (v) friendly relation with any foreign State; (vi) harmony between religious, racial, social, linguistic, regional groups, castes or communities; (g) the acceptance of foreign contribution referred to in sub‑section (1), (i) shall not lead to incitement of an offence; (ii) shall not endanger the life or physical safety of any person. (5) Where the Central Government refuses the grant of certificate or does not give prior permission, it shall record in its order the reasons therefor and furnish a copy thereof to the applicant: Provided that the Central Government may not communicate the reasons for refusal for grant of certificate or for not giving prior permission to the applicant under this section in cases where there is no obligation to give any information or documents or records or papers under the Right to Information Act, 2005 (22 of 2005). (6) The certificate granted under subsection (3) shall be valid for a period of five years and the prior permission shall be valid for the specific purpose or specific amount of foreign contribution proposed to be received, as the case may be., Section 17 of Chapter IV of the Foreign Contribution (Regulation) Act reads as under: 17. Foreign contribution through scheduled bank. - (1) Every person who has been granted certificate or prior permission under Section 12 shall receive foreign contribution only in an account designated as FCRA Account by the bank, which shall be opened by him for the purpose of remittances of foreign contribution in such branch of the State Bank of India at New Delhi, as the Central Government may, by notification, specify in this behalf: Provided that such person may also open another FCRA Account in any of the scheduled banks of his choice for the purpose of keeping or utilising the foreign contribution which has been received from his FCRA Account in the specified branch of State Bank of India at New Delhi: Provided further that such person may also open one or more accounts in one or more scheduled banks of his choice to which he may transfer for utilising any foreign contribution received by him in his FCRA Account in the specified branch of the State Bank of India at New Delhi or kept by him in another FCRA Account in a scheduled bank of his choice: Provided also that no funds other than foreign contribution shall be received or deposited in any such account. (2) The specified branch of the State Bank of India at New Delhi or the branch of the scheduled bank where the person referred to in sub‑section (1) has opened his foreign contribution account or the authorised person in foreign exchange, shall report to such authority as may be specified, (a) the prescribed amount of foreign remittance; (b) the source and manner in which the foreign remittance was received; and (c) other particulars, in such form and manner as may be prescribed., The contention of the petitioner that the petitioner has obtained permanent registration under the Foreign Contribution (Regulation) Act, 2010 does not create a right in favour of the petitioner to get the amounts credited to the designated savings bank account and it has to be always subject to the clearance by the Ministry of Home Affairs. Respondent No.4, by way of a memo, has produced document No.1, wherein the Government of India, Ministry of Home Affairs, Foreign Division (Foreign Contribution (Regulation) Act Wing), Monitoring Unit has written a letter to the Additional Solicitor General on 20.11.2018 wherein at paragraph Nos.2, 3, 4 and 6 it has stated as under: 2. It is stated that based on the feedbacks/inputs of the Field/Security Agencies, the answering respondent takes a decision to place the Foreign Donor(s) into the Prior Reference/Permission Category under the relevant provisions of the Foreign Contribution (Regulation) Act, 2010. The detail(s) of such Prior Reference/Permission Category is/are further communicated to the Reserve Bank of India under Section 46 of the Foreign Contribution (Regulation) Act, 2010 for instructing all the Banks and their branches to ensure that any fund flow from any Organisation/Person/Agency mentioned in the Prior Reference/Permission Category to any Bank Account in India will be brought to the notice of the petitioner so that such funds are allowed to be credited in the accounts of the recipient only after due clearance from the Ministry of Home Affairs. 3. It is stated that the feedbacks/inputs of the Field/Security Agencies is/are explicitly exempted from the purview of the Right to Information Act, 2005 by virtue of Section 24(1) read with the Second Schedule and is mentioned at the 1st entry of the Second Schedule of the Right to Information Act, 2005. However, same may be produced before the Honourable Supreme Court of India in a sealed envelope on demand being secret in nature. 4. In the instant matter, it is stated that on the basis of feedbacks/inputs of the Field/Security Agency Dan Church Aid was placed under Prior Reference/Permission Category by the answering respondent and further communicated to the Reserve Bank of India, Mumbai vide letter No.11/21022/58 (015)/2013-FCRA (MU) dated 03rd April, 2013 to instruct all the Banks and their Branches to ensure that any fund flow to any individuals/entities in India from Dan Church Aid is brought into the notice of this Ministry for clearance before crediting into the account of the recipient NGOs/associations. The same information was further conveyed to all Banks and their branches by the Reserve Bank of India, Mumbai vide its secret circular No.DBOD.AML No.1463/14-08-001/2012-13 dated 12th April, 2013 for strict compliance. x x x 6. It is stated that DCB Limited, accordingly sought the clearance of this Ministry for crediting of the above‑mentioned inward remittance into the account of Manasa Centre for Development and Social Action, Bangalore. However, keeping in view the adverse inputs/feedback of the Field/Security Agency against the Dan Church Aid, Development Credit Bank Limited, Mumbai was informed vide this Ministry’s letter dated 30th October, 2013 not to credit the above‑mentioned foreign contribution into the account of Manasa Centre for Development and Social Action, Bangalore till further instructions from this Ministry (Appendix‑A). However, the answering respondent also craves leave of the Honourable Supreme Court of India to file a counter affidavit in due course of time, if need be. (Emphasis supplied), The perusal of the letter issued by the Government of India taking the feedbacks and inputs from the field/security agency would take a decision to place a foreign donor(s) into the Prior Reference/Permission Category under the relevant provisions of the Foreign Contribution (Regulation) Act, 2010. The details of such Prior Reference/Permission Category is/are further communicated to the Reserve Bank of India under Section 46 of the Foreign Contribution (Regulation) Act, 2010 for instructing all the Banks and their branches to ensure that any fund flow from any organisation/person/agency mentioned in the Prior Reference/Permission Category to any bank account in India will be brought to the notice, so that such funds are allowed to be credited in the accounts of the recipient only after due clearance from the Ministry of Home Affairs. The Prior Reference/Permission Category by the Union was communicated to the RBI in the year 2013, which in turn directed all the banks and their branches to ensure that any fund flow to any individuals/entities in India from Dan Church Aid is brought into notice of this Ministry for clearance before crediting into the account of the recipient, NGOs, associations and the same has to be conveyed to all the banks and their branches., Since the petitioner received two inward remittances from the \Dan Church Aid\ in their account being operated in the DCB Bank M.G. Road, Bangalore, to the extent of Rs.5,23,549.34 and Rs.23,89,343.62 were credited. Accordingly, the clearance was sought by the DCB Bank from the Ministry for crediting of the aforementioned inward remittance into the account of MANASA Centre for Development and Social Action petitioner herein. Keeping in view the adverse inputs and feedback of the field (Security Agencies) against the Dan Church Aid, the respondent bank DCB was informed by the Ministry dated 31.10.2013 not to credit the above‑mentioned foreign contribution into the account of MANASA Centre for Development and Social Action, Bangalore till further instructions from this Ministry. The said document is at Annexure R‑1, which reads as under: Government of India Ministry of Home Affairs Foreigners Division Foreign Contribution (Regulation) Act (Monitoring Unit) A‑Wing, Ground Floor, NOCC‑II Building, Jai Singh Road, Near Jantar Mantar, New Delhi To Shri Sachin Patange Chief Compliance Officer & Principal Officer, Anti Money Laundering, Development Credit Bank Limited, 6th Floor, Tower A, Peninsula Business Park, Senapati Bapat Marg, Lower Parel, Mumbai 400013. Subject: – Foreign Contribution (Regulation) Act, 2010 inward remittance from Dan Church Aid case of Manasa Centre for Development and Social Action, Bangalore. Sir, I am to refer to your letter dated 2nd May, 2013 on the subject mentioned above and to state that the inward remittance received from Dan Church Aid in favour of Manasa Centre for Development and Social Action, Bangalore may not be credited into their account till further instruction from this Ministry. Yours faithfully, (Ashutosh Kumar Sinha) Director (MU & I) Ph: 23438176 Copy for information to The Chief General Manager, Department of Banking Operations & Development, Reserve Bank of India, Central Office, Anti Money Laundering Cell, World Trade Centre, Coffee Parade, Mumbai 400005 w.r.t. their letter No.DBOD AML No.18195/14.05.02/2012-13 dated 19th June, 2013., Thus, mere possession of the permanent registration under the Foreign Contribution (Regulation) Act, 2010 does not permit the petitioner to get the amounts credited to the designated savings bank account, which is always subject to the clearance of the Ministry of Home Affairs, as stated supra and also the letter of the Ministry of Home Affairs dated 31.10.2013 clearly instructing the respondent bank not to credit the amount received from Dan Church Aid to the account of the petitioner till further instructions of the Ministry of Home Affairs, unless a clearance has been granted by the Ministry, the petitioner is not entitled to the said amount., For the foregoing reasons, Supreme Court of India is of the considered view that the petition lacks merit and Supreme Court of India passes the following: Writ petition is dismissed as devoid of merit.
id_452	0	In the Court of Chief Judicial Magistrate/Special Judge for Prevention of Corruption Act Cases, Dindigul. Present: Thirumathi J. Mohana, M.L., Special Judge for Prevention of Corruption Act Cases (Chief Judicial Magistrate), Dindigul. Tuesday, the 06th day of February 2024. Criminal Miscellaneous Petition No. 1587/2024. Ankit Tiwari, age 37, son of Rajendrakumar Tiwari, Enforcement Officer, Enforcement Directorate, Sub‑Zonal Office, Madurai, petitioner/accused versus the State through Deputy Superintendent of Police, Vigilance and Anti‑Corruption, Dindigul, Crime No. 06/2023, respondent/complainant., This bail petition was listed for hearing on 06‑02‑2024 before the Special Judge. Counsel for the petitioner, Advocate A. Selvam, and Special Public Prosecutor R. Anuradha, representing the respondent, were present. After hearing arguments of both sides and perusing the records, the Court proceeds as follows., The petitioner’s counsel submits that the petitioner was arrested for alleged offences under Section 7(a) of the Prevention of Corruption Act, 1988, as amended in 2018, and was remanded to judicial custody on 01‑12‑2023. He has been in custody for 61 days. The prosecution alleges that the petitioner, employed as Enforcement Officer in the Enforcement Directorate, Government of India, has been in custody from 01‑12‑2023 to 29‑01‑2024. Section 167(2) of the Criminal Procedure Code provides that the accused must be released on bail after ninety days where the investigation relates to an offence punishable with death, life imprisonment or imprisonment for not less than ten years, and after sixty days where the investigation relates to any other offence, if no charge sheet is filed. No charge sheet has been filed by the respondent police; therefore the petitioner is eligible for bail under Section 167(2) Criminal Procedure Code without prejudice to the respondent. The Director of the Enforcement Department filed a petition before the Honourable Supreme Court of India, which on 25‑01‑2024 ordered that further investigation in FIR No. 6/2023 dated 30‑11‑2023, registered at Dindigul Vigilance & Anti‑Corruption Police Station, shall remain stayed. Consequently, the Directorate of Enforcement will not proceed with the investigation or tamper with prosecution witnesses, and the petitioner prays for release on bail., The Additional Public Prosecutor, Vigilance and Anti‑Corruption, filed a reply stating that an earlier bail petition was dismissed by this Court on 05‑12‑2023. A bail petition filed before the Madurai Bench of the Madras High Court was dismissed on 20‑12‑2023 on the ground that granting bail would hamper investigation. A petition filed by the Enforcement Directorate in Criminal Miscellaneous Petition No. 58/2024 seeking permission to examine the accused under Section 50(2) of the Prevention of Money Laundering Act, 2002, was dismissed by this Court on 12‑01‑2024 because the Directorate provided only a vague reason for the enquiry and did not show strong cause. The investigation of Crime No. 06/2023 by the respondent police was stayed by the Honourable Supreme Court of India on 25‑01‑2024. Hence, the statutory period fixed under Section 167(2) Criminal Procedure Code for completing investigation does not apply, and the petitioner cannot claim bail as a mandatory right. The prosecution argues that continued judicial custody is necessary to prevent tampering with evidence, inducement of witnesses, or any other obstruction of justice. Therefore, the prosecution objects to the release of the accused on bail., The Court heard both sides. The petitioner claims a right to statutory bail. As no charge sheet has been filed within sixty days of arrest, bail should be granted under Section 167(2) Criminal Procedure Code. The date of arrest is 01‑12‑2023, and the stay order was issued by the Honourable Supreme Court of India on 25‑01‑2024., The stay order falls on the 55th day from the date of arrest, after which the respondent could not continue investigation, resulting in the inability to file a charge sheet. The petitioner cited authorities in support of his argument. This Court has the power to release the accused on statutory bail under Section 167(2) Criminal Procedure Code, but it cannot exceed the statutory limits. The authorities cited by the petitioner are not deemed relevant to this case. Considering the arguments, statutory bail under Section 167(2) Criminal Procedure Code would apply only if the sixty‑day period from the date of arrest had elapsed without reasonable cause. Since the Supreme Court stay prevented further investigation after the 55th day, the prosecution’s concerns are valid. Consequently, the petition is dismissed., In the result, the petition is dismissed. Order pronounced by the Special Judge for Prevention of Corruption, Dindigul, on the 06th day of February 2024.
id_453	0	High Court of Judicature for Rajasthan, Jaipur Bench. Civil Writ Petition No. 8155 of 2016. Phoolmati, wife of Shri Avdhesh, aged about 21 years, Petitioner versus 1. The State of Rajasthan through Principal Health Secretary, Government of Rajasthan, Government Secretariat, Jaipur; 2. Director, Child Health, Directorate of Medical Health Services, Swasthaya Bhawan, Tilak Marg, Jaipur; 3. Chief Medical and Health Officer, Bharatpur, District Bharatpur; 4. Chief Medical and Health Officer, Alwar, District Alwar; 5. Government Community Health Centre, Khedli, District Alwar through its head; 6. Government Mahila Zila Hospital, Bharatpur through its head; 7. Union of India through its Secretary, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi 110108., For the petitioner: Mr. Sudhindra Kumawat, Advocate. For the respondents: Mr. R. D. Rastogi, Additional Solicitor General assisted by Mr. C. S. Sinha, Advocate for Union of India. Mr. Bharat Saini, Additional Government Counsel for the State., Honourable Justice Anoop Kumar Dhandre reserved on 12 February 2024 and pronounced on 20 February 2024., ‘Sarve Bhavantu Sukhinah, Sarve Santu Niramaya, Sarve Bhadrani Pashyantu, Maa Kaashchiddukhbhag Bharete.’ It is believed worldwide that the above verse belongs to the Brihadaranyaka Upanishad. The shloka means: May all be prosperous and happy; may all be free from infirmities and illness; may all see good; may no one suffer in any way., A heart‑breaking, nerve‑cracking, conscious shocking and society‑rocking tragic incident occurred when the welfare State and the Union of India failed to discharge their duties and the petitioner was forced to deliver twin children in the middle of the road in the market on 07 April 2016. Due to reckless and negligent behaviour of the officials posted at the Community Health Centre (CHC) at Khedli, District Alwar, the newly born twin children lost their lives in the absence of required urgent medical attention. On that day the petitioner suffered labour pain and was taken to the CHC, Khedli. The staff asked her for the MAMTA Card to provide treatment, but in the absence of the card, treatment was not provided. Only certain medicines were prescribed on paper and were not supplied at the CHC. The husband brought the medicines from a shop outside the CHC. Meanwhile the petitioner’s labour pain increased and no one provided her the required medical attention, so she left the premises of the CHC. In the absence of any transport facility, the pregnant petitioner walked towards a bus stop and, while crossing the road, the pain became unbearable and she delivered twin children in the middle of the market at around 11:30 a.m. Women nearby gathered and covered the scene with sarees, dupattas and bedsheets. The petitioner and her newborn twins were taken to the CHC, Khedli, but they were referred to the higher centre, Mahila Zanana Hospital, Bharatpur, because of their critical condition. One child died on the way to the hospital and the other child was admitted, but a huge amount of money was demanded from the family, which they could not arrange, and around 11:00 p.m. the second child also died for want of medical attention and required treatment., Despite the existence of several schemes such as Janani Suraksha Yojana (JSY), Pradhan Mantri Surakshit Matritva Abhiyan (PMSMA) and Janani Shishu Suraksha Karyakaram (JSSK), the petitioner did not receive free treatment or medicines and unfortunately lost her newborn twin children due to grave negligence of the respondents. Consequently, the petitioner has filed this writ petition invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, praying that the Court may call for the entire record pertaining to the case and: (a) issue a writ directing the respondents to ensure effective implementation of the Janani Shishu Suraksha Karyakaram and Janani Suraksha Yojana and to ensure safe institutional deliveries; (b) direct the respondents to take appropriate action against the guilty persons, conduct a detailed enquiry by constituting a high‑level committee, and take reformative steps to prosecute the responsible persons; (c) award compensation of Rs. 2 lakh for the death of each newborn child; (d) reimburse the petitioner Rs. 25,000 for any expenditure incurred in violation of the JSSK and JSY schemes; (e) direct strict monitoring of the work of Accredited Social Health Activists and Auxiliary Nurse Midwives at brick kilns and registration of pregnant women at their nearest Anganwadi Centre; (f) make special provisions for migrant workers, especially brick‑kiln workers, to receive free health‑care services from government facilities without hassles and to ensure proper implementation of Indian Public Health Standards and spread awareness about JSSK and JSY; and any other appropriate order the Court deems just and proper., Janani Suraksha Yojana (JSY) is a centrally sponsored scheme implemented to reduce maternal and infant mortality by promoting institutional delivery among pregnant women. Under JSY, eligible pregnant women are entitled to cash assistance irrespective of the age of the mother and number of children for giving birth in a government or accredited private health facility. The scheme focuses on poor pregnant women with a special dispensation for states that have low institutional delivery rates, including Rajasthan. The scheme also provides performance‑based incentives to Accredited Social Health Activists for promoting institutional delivery. Cash assistance for institutional delivery is Rs. 1,400 for rural areas and Rs. 600 for urban areas in low‑performing states, and Rs. 700 for rural and Rs. 600 for urban areas in high‑performing states. Cash assistance for home delivery is Rs. 500 per delivery for BPL pregnant women., Pradhan Mantri Surakshit Matritva Abhiyan (PMSMA) was launched by the Ministry of Health and Family Welfare to provide assured, comprehensive and quality antenatal care free of cost to all pregnant women on the ninth of every month. PMSMA guarantees a minimum package of antenatal services to women in their second or third trimesters at government health facilities, with risk‑based stickers (green for no risk, red for high risk) and a national portal and mobile application for easy access., Pradhan Mantri Matru Vandana Yojana (PMMVY), earlier known as Indira Gandhi Matritva Sahyog Yojana, provides a cash incentive of Rs. 5,000 in three installments directly to pregnant women and lactating mothers for the first living child of the family, partially compensating wage loss and supporting rest before and after delivery. The cost sharing pattern between centre and state is 60:40., Janani Shishu Suraksha Karyakaram (JSSK) was launched with the objective to eliminate out‑of‑pocket expenses for both pregnant women and sick infants accessing public health institutions for treatment. Entitlements for pregnant women include free delivery and cesarean section, free drugs and consumables, free essential diagnostics, free diet during stay (up to three days for normal delivery and seven days for cesarean), free provision of blood, free transport from home to health institutions and between facilities in case of referral, and exemption from all user charges. Entitlements for sick infants up to one year after birth include free treatment, free drugs and consumables, free diagnostics, free provision of blood, free transport, and exemption from user charges., Indira Gandhi Matritva Poshan Yojana (IGMPY) is a conditional cash transfer scheme in the five most vulnerable districts of Rajasthan (Udaipur, Pratapgarh, Bhilwara, Banswara and Dungarpur). It provides financial assistance of Rs. 6,000 in five installments to pregnant women with a second child: Rs. 1,000 at the time of first antenatal check‑up, Rs. 1,000 upon completion of two antenatal check‑ups within six months, Rs. 1,000 at the time of childbirth in hospital, Rs. 2,000 upon completion of all vaccinations for the child, and Rs. 1,000 on taking permanent family planning., Rajasthan Janani‑Shishu Suraksha Yojana (RJSSY) is a state‑formulated scheme that assures nil out‑of‑pocket expenses in all government health institutions for pregnant women and newborns. Entitlements for pregnant women include free delivery, free cesarean section, free drugs and consumables, free diagnostics, free diet during stay, free provision of blood, free transport from home to health institutions and between facilities in case of referral, and exemption from all user charges. Entitlements for sick newborns up to 30 days after birth include free treatment, free drugs and consumables, free diagnostics, free provision of blood, free transport, and exemption from user charges., The right to life under Article 21 of the Constitution of India includes the right to lead a dignified and meaningful life, and the right to health is an integral facet of this right. In C.E.S.C. Ltd. & Ors. v. Subhash Chandra Bose & Ors. (1992) 1 SCC 441, the Supreme Court held that the right to health must be considered an aspect of social justice inferred not only from Article 21 but also from the Directive Principles of State Policy and international conventions to which India is a party. The bare minimum obligation of the State is to ensure the preservation of the right to life and health., In Bandhua Mukti Morcha v. Union of India & Ors. (1984) 3 SCC 161, the Supreme Court underlined the obligation of the State to ensure that the fundamental rights of weaker sections of society are not exploited because of their position., The right to health as an inalienable component of the right to life under Article 21 has been settled in Pt. Paramanand Katara v. Union of India (1989) 4 SCC 286 and Paschim Banga Khet Majoor Samiti v. State of West Bengal (1996) 4 SCC 37. The orders in PUCL v. Union of India in WP (C) No. 196/2001 continue the Supreme Court’s efforts to protect and enforce the right to health of mother and child, underscoring its inter‑relatedness with the right to food., Article 25 of the Universal Declaration of Human Rights declares that everyone has the right to a standard of living adequate for health and well‑being, including medical care, and that motherhood and childhood are entitled to special care and assistance. The International Covenant on Economic, Social and Cultural Rights (ICESCR), ratified by India, provides for the widest possible protection and assistance to families, special protection for mothers before and after childbirth, and the right of everyone to the highest attainable standard of physical and mental health, including reduction of still‑birth and infant mortality, improvement of environmental hygiene, and provision of medical services., The Committee on Economic, Social and Cultural Rights, in General Comment No. 14 (2000), explained that the right to health includes both freedoms (such as freedom from non‑consensual medical treatment) and entitlements (such as a system of health protection providing equality of opportunity to enjoy the highest attainable level of health). It extends to underlying determinants of health such as safe water, adequate sanitation, nutrition, housing, and health education, and requires participation of the population in health‑related decision‑making., The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by India, obliges States Parties to eliminate discrimination against women in health care, ensure appropriate services in connection with pregnancy, confinement and the post‑natal period, and take into account the particular problems faced by rural women, guaranteeing their participation in development planning, access to health care, social security, education, and economic opportunities., The Convention on the Rights of the Child, also ratified by India, recognizes the right of the child to the highest attainable standard of health and to facilities for treatment of illness and rehabilitation. It obliges States Parties to diminish infant and child mortality, ensure necessary medical assistance, combat disease and malnutrition, provide appropriate prenatal and post‑natal health care for mothers, and promote education on child health and nutrition., The Protection of Human Rights Act, 1993 recognises that the international conventions are part of Indian human rights law. Section 2(d) defines ‘human rights’ as rights relating to life, liberty, equality and dignity guaranteed by the Constitution or embodied in international covenants and enforceable by courts in India. Section 2(f) defines ‘International Covenants’ as the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights., In spite of recognizing the right to health as a component of the right to life under Article 21, the respondents have failed to discharge their obligations and provide the benefits of the aforementioned schemes to the petitioner and her two infant children, who lost their lives due to gross negligence of the officials, causing the petitioner grave physical and mental agony which cannot be compensated in any terms., An enquiry conducted by the Chief Medical and Health Officer, Alwar, found negligence of two nursing staff, Smt. Mitilesh and Dhannalal, and Dr. Ramavtar Bansal, as per enquiry reports dated 13 April 2016 and 18 May 2017, which were forwarded to the Joint Director, Medical and Health, Jaipur Zone for necessary action. No documents have been placed on record to show whether any action has been taken against the delinquent persons, and a departmental enquiry is required against each delinquent person in accordance with law, providing them adequate opportunity of hearing., The Constitution envisages the establishment of a welfare state at both the federal and state levels. In a welfare state, the primary duty of the government is to secure the welfare of the people, including providing adequate medical facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Failure of a government hospital and its staff to provide timely medical treatment results in gross violation of the right to life guaranteed under Article 21. In the present case, this right to life of the petitioner and her newborn infants has been grossly violated by the respondents who failed to implement the beneficial schemes meant to save pregnant women and infants from mortality., Although health is a subject in the State List, the responsibility for maintaining good health rests squarely on the shoulders of the Union of India, which has formulated national schemes such as JSY, JSSK, PMSMA, PMMVY, and IGMPY. The implementation of these schemes depends on the State governments, but cooperation between the Union and the State is indispensable. The Union cannot limit its obligation to mere enactment of a scheme without ensuring its realization and implementation., Because the petitioner was compelled to give birth to twin children in the middle of a market road due to denial of minimum benefits under the schemes, the Union of India and the State Government are jointly and severely liable to pay her compensation of Rs. 4 lakh within three months.
id_453	1	The said amount will be deposited in a Fixed Deposit in the name of the petitioner for a period of three years in an account to be opened in a nearby nationalised bank with the facility of transferring the interest accrued thereon every quarter to her savings account, which can be withdrawn by her. The petitioner will be able to encash the Fixed Deposit only after the completion of the three‑year period., The Supreme Court of India notes that there are several shortcomings in the various schemes of the Union of India and the Government of Rajasthan, which are liable to be rectified at their own level by constituting a Joint High Powered Committee. Accordingly, the following directions are issued to the respondents: Schemes such as Janani Suraksha Yojana, Janani Shishu Suraksha Karyakram, Pradhan Mantri Surakshit Matritva Abhiyan, Pradhan Mantri Matru Vandana Yojana, Indira Gandhi Matritva Sahyog Yojana and Rajasthan Janani Suraksha Yojana are not widely circulated in the public domain, and the public at large is not aware of their benefits; therefore, the respondents are directed to advertise these schemes in public places by putting up hoardings, posters and banners, and to circulate awareness through television, radio, newspapers and social media. The cash amount given to pregnant females before and after delivery is inadequate in view of current price rises, and the respondents shall increase the amount by taking a policy decision. The respondents are directed to ensure that the benefits of the aforementioned schemes are not denied to beneficiaries and that assistance is provided promptly at the nearest point of access. The Health Department of the Union of India and the Government of Rajasthan shall devise formats of registers to be maintained by medical officers and nursing staff posted in government hospitals, community health centres and various health centres supervising the work of the schemes; each officer shall maintain a proper log book of all pregnant females and a checklist of the benefits to be given under the schemes, including antenatal care, child health and family planning. Every nursing and other staff shall report to the medical officer if any beneficiary declines assistance, refuses medicines or is reluctant to undergo institutional delivery, and a record shall be maintained and necessary medical assistance provided as required. A review shall be undertaken of the issuance of any medical cards for obtaining the benefits of these schemes, and it shall be ensured that every eligible person, family or child is granted the benefits of such medical cards. Special dedicated cells shall be set up within the health department of the Central and State governments to monitor the implementation of the schemes on a regular basis. Mobile applications for immediate assistance of pregnant females shall be introduced and effectively maintained; medical officers, nursing staff and other staff posted in hospitals and health centres shall be sensitised by proper and adequate training to take special care of pregnant females before and after delivery, and they shall apprise all pregnant females about the benefits of the schemes. The Government of India and the Government of Rajasthan shall immediately issue corrected directions to increase the cash amount to the beneficiaries of the various schemes. The respondents are directed to conclude the departmental enquiry against delinquent persons in accordance with law and pass appropriate orders after affording them an opportunity of hearing. The respondents are further directed to pay compensation of Rupees four lakh to the petitioner by way of depositing the same in a Fixed Deposit, and the quarterly interest accrued thereon shall be paid to her., The Secretary, Ministry of Health and Family Welfare, Government of India, as well as the Chief Secretary of the State of Rajasthan, is directed to constitute a Joint High Powered Committee including the Secretary of the Department of Medical and Health of the Centre and the State to make necessary amendments in the above schemes for effective implementation., The respondents are directed to pay a cost of Rupees twenty‑five thousand to the petitioner within a period of three months from today and to submit the receipt of payment on the record of this case., The respondents shall submit affidavits complying with the above directions within three months from the date of receipt of the certified copy of this order. The instant writ petition stands disposed of with the above directions. The stay application and all pending applications also stand disposed of.
id_454	0	Criminal Miscellaneous Petition No. 257 of 2012. Petitioners: Umesh Kumar, Deepti Srivastava, G. C. Sinha (Gopal Chandra Sinha), Archna Sinha. Opposite Parties: The State of Jharkhand, Monika Srivastava., For the Petitioners: Mr. Rajesh Kumar, Advocate. For Opposite Party No. 2: Mr. Lalan Kumar Singh, Advocate. For the State: Mr. Shailesh Kumar Sinha, Additional Public Prosecutor. Heard on 12 June 2023., This petition has been filed for quashing the entire criminal proceedings, including the order taking cognizance dated 29 September 2011, passed in connection with Police Crime Report No. 123 of 2010, pending in the court of the learned Chief Judicial Magistrate, Sahibganj., The complaint was filed by the complainant, Opposite Party No. 2, alleging that her marriage was solemnised with Piyush Srivastava on 19 February 1999 at Jhansi, Uttar Pradesh. After marriage she and her husband lived a peaceful conjugal life for several years, but subsequently the husband began to quarrel with her on trivial grounds, assaulting her with fists and slaps. The husband demanded a sum of Rs 5 lakh for allowing her to live decently in his house. The complainant’s family had already paid Rs 2,50,000 on his demand, and at the time of marriage her family had also given her gold ornaments weighing 25 bhari. It was further alleged that other accused persons visited Sahibganj, instigated the husband to demand the amount from her family, and, on refusal, advised him to divorce her through legal process. They last visited Sahibganj on 11 April 2010. Despite attempts by the complainant and her family to reconcile, the accused persons continued to instigate the husband to cut off relations and divorce her, leading to the registration of Police Crime Report No. 123 of 2010., Mr. Rajesh Kumar, learned counsel for the petitioners, submits that the learned court had earlier taken cognizance only against the husband vide order dated 8 September 2010. That order was challenged by Opposite Party No. 2 in Criminal Revision No. 71 of 2010, and the learned Sessions Judge, by setting aside the order, remanded the matter to the learned court for fresh consideration. The petitioners are brothers‑in‑law and sisters‑in‑law of the complainant and reside in Lucknow. The petitioners contend that only general and omnibus allegations exist against them, yet the learned court took cognizance on the remand order, observing that a prima facie case was made out. Accordingly, they pray that the entire criminal proceedings be quashed., Mr. Lalan Kumar Singh, learned counsel for Opposite Party No. 2, submits that there is a direct allegation against the petitioners and that the trial court erred in taking cognizance only against the petitioners. The order taking cognizance was challenged before the learned Sessions Judge, who set it aside and remanded the matter for fresh decision, after which the learned court again took cognizance against the petitioners. He asserts that there is no illegality in the order taking cognizance., The Honorable High Court of Jharkhand, having considered the materials on record, including the complaint and the solemn affirmation, notes that only general and omnibus allegations are made against the petitioners, and the nature of any torture alleged has not been disclosed. The learned court initially took cognizance against the husband vide order dated 8 September 2010 and, after remand by the Sessions Judge, extended cognizance to all accused named in the complaint., Section 498‑A of the Indian Penal Code was enacted to punish cruelty by a husband or his relatives, but it is now frequently misused, as observed by several High Courts and the Honourable Supreme Court of India. The Supreme Court considered the misuse of the provision in Arnesh Kumar v. State of Bihar & Another [(2014) 8 SCC 273]., 32. It is a matter of common experience that most of these complaints under Section 498‑A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.\n\n33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under Section 498‑A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.\n\n34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.\n\n35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinised with great care and circumspection.\n\n36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful., The Court’s concern regarding general and omnibus allegations where family members are roped in under Section 498‑A was expressed by the Honourable Supreme Court in Geeta Mehrotra & Another v. State of Uttar Pradesh & Another [(2012) 10 SCC 741]., The issue of distant relatives being implicated was considered by the Supreme Court in K. Subba Rao v. State of Telangana [(2018) 14 SCC 452]., Returning to the facts, the petitioners, who are brothers‑in‑law and sisters‑in‑law of the complainant, face only general and omnibus allegations. The learned court, after remand by the Sessions Judge, took cognizance against them, observing a prima facie case. No allegation is made against the husband in this petition., Considering the presence of general and omnibus allegations, the Honorable High Court of Jharkhand finds that it is appropriate to exercise the power under Section 482 of the Criminal Procedure Code., Accordingly, the entire criminal proceedings, including the order taking cognizance dated 29 September 2011 in connection with Police Crime Report No. 123 of 2010, pending before the learned Chief Judicial Magistrate, Sahibganj, are quashed., It is clarified that this Court has not interfered with the complaint or the order taking cognizance as regards the husband of the complainant, and the trial against the husband will proceed in accordance with law., The petition is allowed in the above terms and disposed of. (Sanjay Kumar Dwivedi, Judge).
id_455	0	Reserved on : 20.09.2023 Pronounced on : 06.10.2023 These contempt petitions (criminal) having been heard and reserved for orders, coming on for pronouncement this day, Hon'ble Shri Justice Vishal Mishra passed the following:, These suo motu contempt proceedings have been initiated against respondent Narinder Singh Poonia as per the order given by the then Hon'ble Acting Chief Justice dated 09.07.2013., It is undisputed that the respondent was the Founder, Editor and Publisher of a journal titled Lost Justice. He had published certain articles in Lost Justice, Volume 03 Issue No.03 of July to September 2010, making allegations against certain sitting Judges of this Court, indicating and commenting about the manner in which certain cases were decided by them. Finding the publication to amount to contempt of court, after due approval of the Acting Chief Justice on 09.07.2013, suo motu proceedings have been initiated against the respondent under Section 2(c)(i) and (ii) of the Contempt of Courts Act, 1971., The comments published in the journal clearly scandalise the image of the judiciary and High Court Judges in the State of Madhya Pradesh., On notice being issued, a detailed reply was filed by the respondent on 16.09.2013 denying the allegations. He contended that he had not committed any contempt, neither civil nor criminal. At the same time, Interim Application No.21216 of 2013 was filed seeking reopening of all the cases in the matter which are under the reference of Contempt No.12 of 2013. By order dated 04.02.2016, this application as well as ten other applications were rejected on merits., Thereafter, by order dated 17.01.2018 passed in Contempt No.12 of 2013, it was found that the charges as contemplated under Section 15(2) of the Contempt of Courts Act, 1971 had not been framed against the respondent. Therefore, the charges were framed so as to enable the respondent to answer each one of them. The charges read as follows:, 1. Whatever reached High Court was judicially killed paving path for hoarders around the country. Questionable rulings were relied upon to generate questionable judgments and it should continue. The menace should extend to all the essential commodities and those around the country. 2. This is how the system as a whole protects and promotes crime, money‑grabbing, property‑grabbing, hoarding, black‑marketing, market‑inflation and everything which crushes the poor public. 3. Essential Commodities Act, 1955 was flouted by 57 dealers in every manner. Courtesy senior advocates who appear on behalf of offenders only to mislead the court, the government advocates who gain more by keeping their mouths shut and the High Court Judges who can even argue and generate evidence in favour of offenders. 4. This seniormost Judge of Madhya Pradesh High Court at Jabalpur (Justice R.S. Garg on behalf of DB) created a disastrous foundation by giving a clean chit to an outlaw in every respect—a judgment which influenced junior colleagues even at other benches of the court. 5. Performance of Justice R.S. Garg (at Jabalpur) and of Justice S.S. Dwivedi (at Gwalior) tarnished the image of the Madhya Pradesh High Court and of the judiciary, whereby offenders escaped at the expense of public rights—those rights which were demolished and humiliated. 6. Justice S.S. Dwivedi deserves to be impeached for his overall performance. One Judge is not more important than the nation as a whole, and a Judge (Justice R.S. Garg) after retirement is also accountable being still richly nourished by the nation. 7. Strange are the ways of advocacy. Books say advocates are officers of the court whose only function is to assist administration of justice but, instantly, every senior advocate of the State deployed his professional skill to shield the richly paying offenders by misdirecting the issue, to mislead and influence the High Court Judges. 8. For this judgment, the author would not blame Justice S.S. Jha. As junior‑companion of Justice R.S. Garg in the DB he must have nothing to do except to sign on the order passed by his senior; in fact, almost every junior of Justice Garg has been doing that. 9. Justice R.S. Garg, the most frequently transferred Judge of Indian High Courts, has shown this judicial responsibility when he was acting Chief Justice and around his days of retirement after fifteen years of service. He ignored the mandate of licence for traders (Clause 3), the limit of fifteen days for applying for the licence (Clause 4) even when sugar of the petitioner was seized after the deadline, and the consequences of contravening the terms of the licence (Clause 8) which provides for prosecution. How amendment of 29.08.2009 alters all the provisions of Order 2009? Was it the crown‑and‑title of the person (trader or non‑trader) which was to decide, or the circumstance reflecting his acts as per Essential Commodities Act, 1955? 10. His jurisprudence as senior judge of the DB traveling through single benches of the Madhya Pradesh High Court must prove disastrous for the country as a whole. The author possesses more data about quality of justice delivery by Justice R.S. Garg in the past including his article 2009. 3 Lost J 222‑30 during his service tenure. There is no reason such retired functionaries should be kept richly nourished by the same nation of which he demolished the interests and rights during his tenure, and for times to come. In the matter of full relief to sugar hoarders in Madhya Pradesh, administration and judiciary are both accountable. 11. Subsequently at the Indore bench, this point was raised towards the disposal of thirty‑three criminal revisions and, in the matter referred by the single bench, the DB (Criminal Reference Nos. 1 to 3/2010) decided in the negative. The verdict runs as follows: In view of the foregoing discussion, we answer the reference in the negative by holding that for confiscation proceedings mens rea is not an essential ingredient. Competent authority has to proceed for confiscation if the conditions prescribed under Section 6A of the Essential Commodities Act, 1955 are fulfilled. Let the papers be placed before the learned single judge along with this order for decision of the criminal revisions on merit in accordance with law. 12. Again the same Judge, Justice S.S. Dwivedi, decided this bunch of petitions. The same type of justice was delivered as for Bunch No.1. More energy was spent for shielding the offenders and for creating the evidence. Instead of passing a suo motu order for prosecution of the petitioners under Section 8(1) of Order 2009, their confiscated material was directed to be returned with five percent interest in case the sugar was already auctioned. There was overall protection for the petitioners despite the judgment being self‑conflicting. 13. How far is it wrong to impeach such a Judge? A prudent analyst wonders why a High Court should expend mental exercise to disprove a proved case that gives a clean chit to offenders. The Bar in the State is not sitting with eyes and ears closed. The fifty‑seven beneficiaries must have already talked to thousands in society about the manipulations in getting judicially de‑hooked. Judicial corruption as an answer gets into the mind of everybody and most understand that it irreparably hits the image of a High Court and the judiciary in general. The author would say, aside from the speculations of judicial corruption, there has been a strong element of judicial incompetence too. The judgment of the DB at Jabalpur Bench was also not binding on the Single Bench at Indore. Firstly, the circumstances for the bunch of thirty‑five petitioners differed widely and were clearly different from that associated with a single party reviewed at Jabalpur. If the jurisprudence of the Single Bench collided with that of the DB then the bunch of cases should have been referred to a Full Bench. Moreover, basic issues vanished in the case decided by the Jabalpur Seat and this vacuum was dragged for cases at Gwalior as well as at Indore., The aforesaid charges were read out and explained to the respondent and he was asked whether he wishes to say anything else. He pleaded not guilty. His plea was recorded. Since the publication is admitted, opportunity was granted to him to produce evidence, if any, in support of his defence. On 16.08.2019, the statement of the respondent was recorded and by order dated 01.11.2019, the submission of the accused was recorded to the effect that he does not want to file any evidence by way of an affidavit but reserves his right to file a written statement., It is pertinent to note that by order dated 17.01.2018 passed in Contempt No.12 of 2013, as the respondent had filed numerous documents after initiation of contempt proceedings, the office was directed to examine the documents which have contemptuous comments disclosing criminal contempt so as to initiate separate criminal proceedings in respect of all documents which disclose criminal contempt within the meaning of Section 2(c) of the Contempt of Courts Act, 1971. In compliance, the documents were examined and three documents were found to contain contemptuous comments. Accordingly, a separate contempt petition (criminal) was registered as Contempt No.04 of 2018, which is also being decided by this common order., The statement of the contemnor was recorded on 16.08.2019; however, by order dated 20.09.2023, learned counsel for the contemnor submitted that he withdraws all his pleadings with regard to the merits of this petition. He only submitted that his unconditional apology may be accepted as the contemnor is about 85 years old and is suffering from serious ailments., The question that arises for consideration before the Madhya Pradesh High Court is whether the comments made by the respondent with respect to the judgments passed by the Hon'ble Judges of the Madhya Pradesh High Court come under the definition of criminal contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971. The relevant provision is: Criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, 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., Therefore, a tendency to scandalise the court, to lower the authority of the court, to interfere with or obstruct the administration of justice, or to challenge the authority or majesty of justice, would be criminal contempt. Any conduct of the contemnor which has the tendency to bring the Judge or court into contempt or to lower the authority of the court would also be contempt of the court., Perusal of the charges levelled against the respondent virtually amount to attempting to scandalise the image of the court and its functioning. The comments are not a fair and dispassionate critique but are couched in intemperate language with undesirable expletives. Charge no.6 expresses that the Hon'ble Judge deserves to be impeached for his overall performance and that the rights of the public have been demolished and humiliated. Thus, it was a deliberate attempt by the respondent‑contemnor to scandalise the image of the court, which falls under the definition of criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971., Recently, the Hon'ble Supreme Court of India, in the case of Prashant Bhushan and another, Reference Suo Motu Contempt Petition (Criminal) 1 of 2020 decided on 14 August 2020 and reported in (2021) 1 SCC 745, considered the definition of Section 2(c) and held that hostile criticism of judges as judges or of the judiciary amounts to scandalising the court. Personal attacks on a judge in connection with the office he holds are dealt with under libel or slander, but defamatory publication concerning the judge as a judge brings the court into contempt, a serious impediment to justice and an inroad on the majesty of justice. Any caricature of a judge calculated to lower the dignity of the court would undermine public confidence in the administration of justice. Imputing partiality, corruption, bias, or improper motives to a judge is scandalisation of the court and would be contempt of the court., The Hon'ble Supreme Court, in D.C. Saxena (Dr) vs. Hon'ble Chief Justice of India, reported in (1996) 5 SCC 216, deprecated the growing tendency to scandalise the court, stating that scandalising the court means hostile criticism of judges as judges or of the judiciary. Personal attacks are dealt with under libel or slander, but defamatory publication concerning the judge as a judge brings the court into contempt. Any caricature calculated to lower the dignity of the court destroys public confidence. Imputing partiality, corruption, bias, or improper motives to a judge is scandalisation of the court and would be contempt of the court. Even imputation of lack of impartiality or fairness to a judge in the discharge of his official duties amounts to contempt., A Constitution Bench of the Hon'ble Supreme Court, in Baradakanta Mishra vs. High Court of Orissa, reported in (1974) 1 SCC 374, held that scandalisation of the court is a species of contempt and may take several forms. Vilification of a judge as a judge attracts contempt jurisdiction, whereas vilification of a judge as an individual does not. The Court will consider the degree of harm to the administration of justice; if the harm is slight, courts will not punish for contempt, as per Section 13 of the Contempt of Courts Act, 1971. The jurisdiction is not intended to uphold the personal dignity of judges; their integrity and authority are indivisible in the context of administration of justice., From the aforesaid judgments of the Hon'ble Supreme Court and the definition under Section 2(c) of the Contempt of Courts Act, 1971, it is clear that even an attempt to scandalise or lower the authority of a court falls within the definition of criminal contempt., Looking to the articles in question published by the respondent‑contemnor coupled with the definition of criminal contempt, the act done by the respondent‑contemnor clearly falls under the definition of criminal contempt. Under these circumstances, he is held guilty of criminal contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971 and is liable to be punished under Section 12 of the Contempt of Courts Act., The matter was heard on the question of punishment., On being asked to address the quantum of punishment, counsel for the contemnor submitted that he withdrew all pleadings with regard to the merits and tendered an unconditional apology. It was submitted that the contemnor, aged 85 years, is virtually bedridden, suffering from paralysis, unilateral hemiplegia and loss of speech due to multiple cerebral strokes. Considering his age and health, it was argued that he may not be sent to jail but a fine may be imposed instead of imprisonment., The court considered the arguments. The respondent‑contemnor is 85 years old, bedridden, unable to walk, with paralysis of right arm and leg and slurring of speech. Applications seeking exemption from personal appearance were allowed by order dated 20.09.2023. Considering the totality of facts, age and health, the court held that it would be just and appropriate to impose a punishment of payment of fine., For all the aforesaid reasons, the court orders: (i) The respondent‑contemnor is held guilty of having committed a criminal contempt as defined under Section 2(c) of the Contempt of Courts Act, 1971. (ii) He shall pay a fine of Rs.4,000 (Rs.2,000 each towards the two contempt proceedings) before the Registry of this Court within fifteen days from the date of this order, failing which he is directed to undergo simple imprisonment of ten days. He is further warned to remain cautious in future., Accordingly, these contempt petitions are disposed of finally.
id_456	0	Petitioner who joined the Five Year Bachelor of Arts and Bachelor of Laws (Honours) Course in the respondent University from the Academic Year 2017‑18 is declared to have secured F Grade in Child Rights Law examination held on 13 March 2020 since he was not given any mark because of alleged plagiarism of the Project Work in question; he was also not allowed to take the Special Repeat Examination of the third trimester in the third year, allegedly in breach of assurance of the University., Aggrieved by the above action of the respondent University, petitioner has approached the High Court with the following prayers: to call for the records relating to issue of the impugned endorsement by the second respondent University dated 01 August 2020 vide Annexure‑H and the order dated 10 August 2020, passed by the first respondent against the appeal of the petitioner (vide Annexure‑L1) denying the petitioner admission to Fourth Year Bachelor of Arts and Bachelor of Laws (Honours) for the Academic Year 2020‑21 and, after perusal, set aside the same; and to direct the respondent University to await the result of the extra seminar course that the petitioner is permitted to pursue in July 2020 and to get him promoted to the next year., After service of notice, the respondents, having entered appearance through their advocate, filed a Statement of Objections on 17 October 2020 and made submissions in justification of the impugned action., Having heard the learned counsel for the parties and having perused the petition papers, the High Court is inclined to grant relief to the petitioner as under and for the following reasons., The essential grievance of the petitioner emanates from the so‑called admitted charge of plagiarism and therefore reference to the extant Regulations concerning the same becomes relevant; Clause 4 of Regulation III of the Bachelor of Arts and Bachelor of Laws (Honours) Academic and Examination Regulations of 2009 reads as follows: (4) Plagiarism: a) Any evidence of plagiarism, if found by the subject teacher, in the form of non‑citation of sources or copying from another student’s project or from his/her own earlier project without acknowledgment, will result in the matter being referred to the University Grants Commission Chairperson by the subject teacher in writing as also a written intimation to the student in this regard by the teacher. b) If the matter is referred to the University Grants Commission Chairperson by the teacher, the Chairperson shall refer the matter to the Vice Chancellor immediately. The Vice Chancellor, in turn, shall look into the matter and decide whether to refer the matter to the Disciplinary Matters Advisory Review and Investigation Committee for disciplinary action at the earliest. In the event that the Vice Chancellor decides not to refer the matter to the Committee, he shall record his reasons in writing for the same. c) Pending the decision of the Vice Chancellor or the Committee, if referred thereto, viva voce for the project shall be conducted. d) If the student is found guilty of plagiarism, he/she shall be punished as per the Regulations., These Regulations do not define plagiarism, which is not in dispute; in fact, the University Circular dated 04 October 2019 at Annexure‑R9 to the Statutory Order states: From the second term of Academic Year 2019‑20, the University Grants Commission Council will clarify the concept and application of plagiarism rules through FAQs to be circulated in the first fortnight of this term. The Academic and Examination Regulations 2009 will be applied in full from November 2019; therefore the concept needs to be understood in common parlance. Ramanatha Aiyar’s Advanced Law Lexicon, 3rd Edition, Wadhwa Nagpur defines plagiarism as publishing borrowed thoughts as original; stealing literary matter from the work of another author. The learned lexicographer also mentions Paul Goldstein’s Copyright’s Highway 12 (1994) which explains that plagiarism, commonly thought to relate to copyright, is in fact an ethical offence enforceable by academic authorities, not courts. Plagiarism occurs when a hurried student, a neglectful professor, or an unscrupulous writer falsely claims another’s words, whether copyrighted or not, as his own. Of course, if the plagiarised work is protected by copyright, the unauthorised reproduction is also a copyright infringement., Plagiarism is a very serious matter that involves the ethics and reputation of the student concerned; proven plagiarism operates as a hazardous stigma on campus and the person concerned is ordinarily shunned, which may affect his educational and employment opportunities. That is why the respondent University has taken appreciable pains in meticulously structuring the provision in the extant Regulations so that the innocent are not victimised; however, it has not adhered to the minimum fairness standards enacted therein. There is absolutely no material on record to show that the subject teacher having found evidence of plagiarism referred the matter to the University Grants Commission Chairperson in writing and sent a written intimation to the student. The petitioner came to know of the alleged plagiarism only after enquiry with the Registry of the University when his exam result was not announced; this act of the University constitutes a grave error apparent on the face of the record., The entire episode of the alleged plagiarism is framed on the basis of a few cryptic mails exchanged between the Course Teacher and the Examination Department, detrimentally keeping the petitioner in darkness; the said mails are printed on a short paper at Annexure‑R7 to the Statutory Order and are reproduced hereunder: Subject: FW: Turnitin report reg. From: Suchithra Menon C. <suchithra@nls.ac.in> Date: Wed, 12 February 2020 at 1:09 PM Subject: Re: Turnitin report reg. To: Third Year LLB <thirdllb@nls.ac.in> Yes, the projects are plagiarised. On Fri, 7 February 2020 at 10:57 AM Third Year LLB <thirdllb@nls.ac.in> wrote: Madam, Pl, indicate if the project is plagiarised and send the report. With best regards, D.K. Keshavamurthy, Exam Department. On Tue, 4 February 2020 at 4:47 PM Dr. Suchithra Menon C. <suchithra@nls.ac.in> wrote: Thanks for the mail. On Tue, 4 February 2020 at 4:39 PM Third Year LLB <thirdllb@nls.ac.in> wrote: Madam, PFA, the following students having similarity index more than 30 %. Pl, indicate the remarks. With best regards, D.K. Keshavamurthy, Exam Department., The vehement contention of the University counsel that the petitioner in his mail dated 02 March 2020 admitted the offence of plagiarism is difficult to accept; the petitioner did send a mail as shown in Annexure‑R5, which is a representation to reconsider his case of plagiarism and not an admission. It is true that a few stray sentences such as “This is my first plagiarism violation” appear, but they are followed by explanations as to why it is not a case of plagiarism. He specifically stated that certain things needed to be mentioned as they are and that would not amount to plagiarism; even in his mail dated 28 February 2020 at Annexure‑R1 to the Statutory Order, he wrote “This is my first violation” followed by a denial in the same paragraph., It has been a long‑settled position of law that a stray sentence giving the impression of admission of guilt shall not be interpreted in isolation when the rest of the representation suggests the contrary; a holistic impression must be gathered from reading the entire text. An acclaimed jurist of earlier decades, Mr. Rupert Cross, in his treatise Evidence (3rd Edition, London: Butterworths 1967) at page 433 states: An admission is any statement adverse to a party’s case; the conditions of admissibility, when the statement emanates from the party himself, concern the capacity in which he is acting and the reception of the entirety of the statement; this is especially relevant when dealing with the educational career of a young mind such as the petitioner. Loose and lavish wording of the representations must be given due discount; the respondent University is not justified in seeking shelter under a weak umbrella of a poor student., What intrigues the High Court is the enormity of unfair treatment meted out to the petitioner by the Law University in this serious matter; it is anguishing that the University did not afford an opportunity of personal hearing despite his written request dated 02 March 2020 at Annexure‑R5 to the Statutory Order. Procedural fairness is a constitutional mandate when the answering respondent is an instrumentality of the State under Article 12 of the Constitution; it is high time that this University of national repute be reminded that it is dealing with our children and not other chattel., The last contention of the learned counsel for the University that it has shown leniency in not taking stringent action for the act of plagiarism and therefore its action of not awarding any mark to the project work of the petitioner cannot be accepted; the punitive action of not awarding any mark is founded on the wrongly assumed admission of guilt, whereas the petitioner’s mails show the contrary. No Regulation or rule is cited that authorises zeroing of a student’s performance value without a finding of guilt arrived after holding a due enquiry when the charge is apparently serious. Moreover, the University has not articulated the principles on which a charge of plagiarism is to be founded; there is absolutely no justification for not holding even a preliminary enquiry. Since the matter is being decided on merits after a lengthy hearing, it is not desirable to remit the same for reconsideration by the University., In the above circumstances, this writ petition succeeds; a writ of certiorari is issued quashing the impugned orders at Annexures‑H and L1; a writ of mandamus is issued to the respondent University to assess and award marks to the petitioner’s project work in question; the petitioner shall be allowed to continue the term by way of carry‑over/carry‑forward, disregarding any attendance shortage, if any.
id_457	0	Date of institution: 13 May 2022. Date of order: 18 May 2022. In the case of Union Territory of Jammu and Kashmir, through Traffic Police, Srinagar, through Assistant Public Prosecutor Ms. Nighat Maqbool versus Zahid Iqbal Wani, son of Mohammad Iqbal Wani, resident of Shalimar, Srinagar (the violator), through Advocate Aqib Hussain Bhat. The instant challan was heard today. Learned counsel and the violator were present. Assistant Public Prosecutor Ms. Nighat Maqbool, representing the Union Territory, was present. Perusal of the challan reveals that it has been issued against the violator for modifying the vehicle in contravention of the provisions of the Motor Vehicle Act, 1988 without permission from the concerned authority. The vehicle has been seized and is presently in the custody of the Traffic Police, Srinagar., The violator modified his vehicle, a Mahindra Thar, by installing a hard top, crash guard with winch, new large tyres, four roof‑top lights on the front side, four roof‑top lights on the rear side, four LED lights on the front, two LED lights on the side mirrors, extra bumpers and other accessories. The structure of the vehicle has been completely altered from its original condition as specified in the Registration Certificate., The violator appeared before the Hon'ble Court, and his statement was recorded. He pleaded guilty to having modified and altered the vehicle from its original condition as specified in the Registration Certificate., Section 52 of the Motor Vehicle Act, 1988 provides: (1) No owner of a motor vehicle shall alter the vehicle so that the particulars contained in the Registration Certificate are at variance with those originally specified by the manufacturer, provided that where the owner makes modification of the engine or any part thereof for facilitating operation by a different type of fuel or source of energy, such modification shall be carried out subject to conditions prescribed. The Central Government may prescribe specifications, conditions for approval, retrofitment and related matters for alteration of motor vehicles, and the warranty granted by the manufacturer shall not be considered void for the purposes of such alteration. The Central Government may also grant exemption for alteration of vehicles for any specific purpose. (2) Notwithstanding anything contained in sub‑section (1), any person may, with the subsequent approval of the registering authority, alter or cause to be altered any vehicle owned by him to be converted into an adapted vehicle, provided that such alteration complies with conditions prescribed by the Central Government. (3) Where any alteration has been made in a motor vehicle without the approval of the registering authority, the owner shall, within fourteen days of the alteration, report it to the registering authority having jurisdiction, forward the Registration Certificate together with the prescribed fee, and the authority shall enter the particulars in the register and communicate the details to the original registering authority. (4) Subject to the provisions of sub‑sections (1) to (3), no person holding a vehicle under a hire‑purchase agreement shall make any alteration to the vehicle except with the written consent of the registered owner. Explanation: For the purposes of this section, “alteration” means a change in the structure of a vehicle which results in a change in its basic feature., The purpose of Section 52 is to prohibit alteration of a vehicle in a manner that makes the particulars in the Registration Certificate differ from those originally specified by the manufacturer. The proviso to sub‑section (1) permits modification of the engine or any part thereof for operation by a different type of fuel or energy source, subject to prescribed conditions. Another proviso empowers the Central Government to prescribe specifications, conditions for approval, retrofitment and related matters for conversion kits, and to grant specific exemptions. Sub‑section (2) allows alteration of a vehicle into an adapted vehicle with the subsequent approval of the registering authority, provided the conditions prescribed by the Central Government are met. Sub‑section (3) requires the owner to report any unauthorised alteration within fourteen days and to have the details entered in the Registration Certificate. The explanation clarifies that “alteration” means a structural change affecting the basic features of the vehicle., The Hon'ble Supreme Court, in Regional Transport Officer v. K. Jayachandra (9 January 2019), held that a vehicle must comply with the provisions of Rule 92(1) of the Central Motor Vehicle Rules, which is subordinate to Section 52 of the Motor Vehicle Act. The rules in Chapter V of the Central Rules provide additional safeguards to prevent alteration of the original specifications entered in the Registration Certificate. Rule 126 requires that a prototype of every type of vehicle be tested for fitness before being deployed on the road. Rule 93 deals with overall dimensions such as width, length, height and overhang. While the vehicle must conform to these rules, they cannot be interpreted to permit alterations prohibited under Section 52(1). Modifications not specifically covered by Section 52(1) may be permitted under the provisions of Section 52(2), (3) and (5) and the applicable rules., Since the vehicle has been modified in contravention of the Motor Vehicle Act and the Rules, and the violator has pleaded guilty, the Regional Transport Office, Srinagar, is directed to remove all unauthorised modifications and to restore the Mahindra Thar to its original condition as specified in the Registration Certificate. The cost of removing the modifications and restoring the vehicle shall be recovered from the violator. The equipment removed shall be returned to the violator against a proper receipt. The entire incident shall be videographed and the video submitted to this Court. After restoration, the vehicle shall be released to the violator or the rightful owner., In view of the violation and considering that no previous violation has been proved, a fine of Rs 5,000 is imposed. In default of payment of the fine, the violator shall suffer simple imprisonment for one month. The challan is accordingly disposed of and shall be consigned to the records after completion., It has been observed that across the country the modification of vehicles in contravention of the law has become commonplace. Dealers openly sell and buy modified vehicles, and authorities rarely take action. Lack of awareness and the absence of strict enforcement are the main reasons for such violations. Therefore, the Deputy Inspector General of Traffic, Kashmir, is directed to take strict action against persons who modify vehicles in contravention of the law and to proceed against those involved in facilitating such modifications, which amount to aiding and abetting violations of the Motor Vehicle Act and the Rules.
id_459	0	9 March 2023\nPresident and Office Bearers\nNew Delhi Bar Association\nPatiala House Courts\nNew Delhi\nEmail: info@ndba.co\nCarbon Copy: Bar Council of Delhi\n2/6, Siri Fort Institutional Area, Khel Gaon Marg, New Delhi -49, Sirs,\nRe: Objectionable Holi Milan celebrations\nAt the outset, we wish you a happy Holi. We are all lawyers in various fora in the city of Delhi. As you know, this year Holi fell on Women’s Day which has been the cause for much celebration and many inspiring messages are being circulated on all media on the greatness of women, how much they can achieve, how far they have come in the world in every field, and other such uplifting messages., Unfortunately yesterday we also came across some video clippings of a celebration organized by the Delhi Bar Association on the occasion of Holi, featuring scantily‑clad women dancers, performing what can best be described as inappropriate dance numbers. For the sake of clarity, the two videos are attached. This letter is not directed against the dancers themselves, who were doing their job and no disrespect is intended to them. However, an event of this nature being hosted by a Bar Association is shocking. It is even more appalling that this celebration was held in the premises of Patiala House Courts. It is totally inappropriate, sexist, and unbecoming of lawyers to host such an event under the official name of any Bar Association and in the premises of a court., As lawyers we ought to uphold the Constitution and work towards gender equality in the workplace. These actions lower the majesty of Patiala House Courts and also amount to various other legal wrongs. Further, you must also be aware that the hosting of this function in the court premises amounts to sexual harassment of a non‑verbal nature that creates a hostile work environment for women lawyers, judicial officers, and staff who frequent Patiala House Courts. We are especially offended by this incident as we take pride in our profession and do not want to see it being denigrated in this manner., Aside from the legality of such an event, it is in very poor taste given that, less than a kilometre away at the Supreme Court of India, the Honorable Chief Justice of India has been talking about encouraging the participation of women lawyers in the legal profession in India. Hosting events of this nature that objectify women and reduce them to devices for entertainment and pleasure are directly contrary to all goals of a modern society in a country that aims to be a world leader. It is not only misogynistic, it brings disrepute to the country, because it tarnishes the image of India that a Bar Association in the capital city would think of hosting such a vulgar event., Please do not organise such events in the future. It is uncivilized and unconstitutional. All lawyers in this city, including women, deserve better. We have marked a copy of this letter to the Bar Council of Delhi so that an enquiry may be conducted on who was responsible for organizing such an event, and appropriate action may be taken against such individuals. We expect that you, as Office Bearers of the New Delhi Bar Association, will issue a statement expressing your regret for this gross and vulgar incident., Sincerely,
id_460	0	Reportable Criminal Appeal No 697 of 2021 @ Special Leave Petition (Criminal) No 4009 of 2021 The State of Kerala Petitioner Versus K. Ajith & Others Respondents And With Criminal Appeal No 698 of 2021 @ Special Leave Petition (Criminal) No 4481 of 2021 Dr Dhananjaya Y Chandrachud, J, This judgment has been divided into the following sections to facilitate analysis: A. Factual Background B. Submissions of Parties C. Issues and Analysis C.1 Withdrawal of prosecution C.2 Immunities and Privileges of Members of Legislative Assembly C.2.1 Position in the United Kingdom C.2.2 Position in India C.3 Privilege to commit acts of public destruction An incongruous proposition C.4 Sanction of Speaker C.5 Claiming privilege and inadmissibility of video recordings as evidence C.5.1 Immunity from publication of proceedings of the House C.5.2 Inadmissibility of the video recording as evidence, Leave granted. The appeals arise out of a judgment of a Single Judge of the High Court of Kerala dated 12 March 2021. The High Court, in the exercise of its revisional jurisdiction under Section 397 of the Code of Criminal Procedure, 1973, upheld the order of the Chief Judicial Magistrate, Thiruvananthapuram, declining to grant permission to the Public Prosecutor to withdraw the prosecution of the first to sixth respondents under Section 321 of the Code of Criminal Procedure., On 13 March 2015, the then Finance Minister was presenting the budget for the financial year 2015-2016 in the Kerala Legislative Assembly. The respondents‑accused, who at the time were Members of Legislative Assembly belonging to the party in opposition, disrupted the presentation of the budget, climbed onto the Speaker’s dais and damaged furniture and articles including the Speaker’s chair, computer, microphone, emergency lamp and electronic panel, causing a loss of Rs. 2,20,093. The incident was reported to the Museum Police Station by the Legislative Secretary. Crime No. 236 of 2015 was registered under Sections 447 and 427 read with Section 34 of the Indian Penal Code, 1860 and Section 3(1) of the Prevention of Damage to Public Property Act, 1984. On the completion of the investigation, the final report under Section 173 of the Code of Criminal Procedure was submitted and cognizance was taken by the Additional Chief Judicial Magistrate, Ernakulam, of the said offences., On 21 July 2018, an application was filed by the Assistant Public Prosecutor under Section 321 of the Code of Criminal Procedure seeking sanction to withdraw the case against all the respondents‑accused. The Prosecutor gave the following reasons for withdrawing the prosecution: (i) Immunities and privileges: The events transpired during a session of the Legislative Assembly when certain Members of Legislative Assembly protested against the budget presentation. The protest by the Members of Legislative Assembly is protected by the immunities and privileges under Article 194(3) of the Constitution of India; (ii) Breach of privilege: A violation of the rights and immunities granted to Members of Legislative Assembly is a breach of privilege and the Legislative Assembly is empowered to punish such actions which are offences against its authority and of disobedience of its legitimate commands. A breach of privilege is a contempt of the House, which falls under the exclusive jurisdiction of the Speaker of the Assembly; (iii) Sanction of the Speaker: An offence which is committed in the Assembly, during a session or in its vicinity by Members of Legislative Assembly, cannot be registered by the police without the permission of the Speaker. Police officers require authorization from the competent authority to investigate a breach of law if it occurs in the precincts of the Legislative Assembly; (iv) Public interest: The freedoms granted to Members of Legislative Assembly are necessary for the functioning of democracy and are subject to the powers of the Speaker or the criminal courts with the sanction of the Speaker. The continuance of the trial of the Members of Legislative Assembly absent the sanction of the Speaker lowers the dignity of the Assembly amongst citizens, thereby affecting public interest; (v) Absence of mens rea: According to the charge sheet, the incident occurred during a protest by the party in opposition against the presentation of the budget. Thus, it is difficult to assess the intention of the offence; (vi) Lack of evidence: The statements of witnesses under Section 161 of the Code of Criminal Procedure are vague and there is an absence of proper identification of the persons involved and their participation in the commission of the alleged offence. The Investigating Officer has failed to record the statement of natural eye witnesses, that is, the Members of Legislative Assembly who were present in the Assembly Hall, despite the permission of the Speaker. Although this casts doubt on the nature of the investigation conducted, it nonetheless indicates that the prosecution has a remote chance to prove its case; (vii) A copy of the video recording of the incident was procured from the Electronic Control Room of the Legislative Assembly without the sanction of the Speaker. The video footage lacks certification under Section 65B of the Indian Evidence Act, 1872 and the admissibility of this evidence would be under challenge in the trial; and (viii) The Government of Kerala, which owned the property that was destroyed, had by an order dated 9 February 2018 consented to the withdrawal of the prosecution and hence, the larger public interest would be served if the case is withdrawn early., The case was transferred to the court of the Chief Judicial Magistrate, Thiruvananthapuram. By an order dated 22 September 2020, the Chief Judicial Magistrate declined to give consent to the application of the Prosecutor for the following reasons: (i) Immunity can be claimed by Members of Legislative Assembly only in exercise of free speech and voting as held by the Supreme Court of India in P.V. Narasimha Rao vs State (CBI/SPE) etc. The alleged offence committed by the respondents‑accused did not have any nexus with their speech or vote; (ii) The case against the Members of Legislative Assembly was registered at the instance of the Secretary of the Legislative Assembly and thus, it can be assumed that this was within the knowledge of the Speaker of the Assembly. Accordingly, the argument that the case was registered without the permission of the Speaker does not hold ground; (iii) Although the Government of Kerala had consented to the withdrawal of the prosecution, it is erroneous to suggest that the loss of public property is a loss accruing to the Government. Damage to public property causes a loss to the public exchequer. The alleged offences are of a serious nature; and (iv) The role of the court under Section 321 is to assess whether the application is made in good faith, in the interests of justice and public policy, and not to stifle the process of law. The application of the Prosecutor fails to inform the court how the withdrawal of prosecution in this case would achieve these objectives. Thus, it is presumed that the application is filed without good faith and is based on external influence., The State of Kerala filed a criminal revision petition before the High Court of Kerala. The High Court, by its order dated 12 March 2021, dismissed the petition and affirmed the order of the Chief Judicial Magistrate. In doing so, the High Court rejected the argument of the State that prosecuting the Members of Legislative Assembly will lower the prestige of the Assembly, and thereby impact public interest. The High Court observed that: (i) The conduct of the Members of Legislative Assembly cannot be deemed to be in furtherance of the functioning of a free democracy, and does not warrant the invocation of the immunities and privileges granted to Members of Legislative Assembly; (ii) There is no provision, either in the Constitution, or in the Rules of Procedure and Conduct of Business in the Kerala Assembly, made pursuant to Article 208(1) of the Constitution, that mandates the police to seek permission or sanction of the Speaker before registering a crime against the Members of Legislative Assembly; and (iii) Insofar as the prosecution raised arguments regarding inadequacy of evidence for successful conviction of the respondents‑accused, the judgment of the Supreme Court of India in Sheonandan Paswan vs State of Bihar & Others indicates that such arguments must be raised by the respondent‑accused while seeking a discharge before the Magistrate., While dismissing the petition, the High Court observed that the application under Section 321 of the Code of Criminal Procedure had been rejected by the Chief Judicial Magistrate for valid reasons. However, the High Court did not find any justification for the presumption in the order that the petition was filed without good faith and on extraneous influence., The State of Kerala and the respondents‑accused have filed independent Special Leave Petitions against the order of the High Court before the Supreme Court of India., Submissions of Parties. Mr Ranjit Kumar, Senior Counsel appearing on behalf of the State of Kerala made the following submissions in support of the appeals: (i) The power of the Public Prosecutor to withdraw from the prosecution for one or more offences of which the accused is tried can be exercised in furtherance of public justice, social, economic and political considerations as held in Rajendra Kumar Jain vs State through Special Police Establishment & Others. The offence that the respondents are accused of committing occurred during the presentation of the State budget, in the premises of the Legislative Assembly. Their actions are manifestations of effective political participation, and are in furtherance of a political purpose which is a valid ground for withdrawal of the prosecution in view of the above decision; (ii) The court granting permission for withdrawal from prosecution performs a supervisory and not an adjudicatory function. It must not take it upon itself the burden to review the reasons advanced by the Public Prosecutor but must only determine if the Public Prosecutor has applied the mind as a free agent, uninfluenced by irrelevant and extraneous considerations; (iii) The High Court while deciding the revision against the order of the Chief Judicial Magistrate has erroneously relied on the dissent of Chief Justice Bhagwati in Sheonandan Paswan (supra). The majority opinion in Sheonandan Paswan (supra) was authored by Justice Khalid and Justice Natarajan, while Justice Venkataramiah authored a separate but concurring judgment; (iv) The incident in relation to which the complaint was filed took place on the floor of the Kerala Legislative Assembly during the presentation of the budget by the Finance Minister. Since the incident happened inside the House, prosecution cannot be initiated without the sanction of the Speaker, who is the presiding officer of the Legislative Assembly. The dictum in P.V. Narasimha Rao (supra) that the sanction of the Speaker of the House is required for the registration of an offence against any Member of Legislative Assembly is not restricted to offences under the Prevention of Corruption Act, 1988; (v) The genesis of the incident lies in a political protest inside the House. Certain women Members of Legislative Assembly had been physically assaulted leading to an FIR being registered. There was a protest against the Finance Minister during the presentation of the budget and the incident was a manifestation of that protest. In this backdrop a decision was taken to bring a quietus to the incident, and the Government considered it appropriate to advise the Public Prosecutor to withdraw the prosecution; (vi) The actions of the respondents‑accused are a manifestation of their right to protest which is a facet of the freedom of speech and expression. Article 194 of the Constitution provides that no proceedings shall be initiated in the court for the exercise of the freedom of speech by Members of Legislative Assembly inside the precincts of the Legislative Assembly. Moreover, these actions took place during the course of the budget presentation and bear a close nexus to the right to vote which is protected under Article 194. Further, the video of the incident of 13 March 2015 that was procured from the Electronic Control Room is a publication of the proceedings of the House. Under Article 194(2), no member shall be held liable in respect of publication of any proceedings inside the House; and (vii) The High Court despite finding that no mala fides can be attributed to the petition for withdrawal initiated by the Public Prosecutor, upheld the order of the Chief Judicial Magistrate declining consent for the withdrawal. By doing so, the High Court has exercised an adjudicatory function, reviewing the grounds provided by the Public Prosecutor as opposed to the established principles laid down in Rajendra Kumar Jain (supra) and Sheonandan Paswan (supra) where it has been held that the court can only exercise a supervisory jurisdiction., Mr Jaideep Gupta, learned Senior Counsel appearing on behalf of the respondents‑accused and in support of the appeal in the companion case, urged that: (i) There is a clear difference in the approach of the majority and the minority judgments in Sheonandan Paswan (supra). The judgments of the majority require the court to determine whether the Public Prosecutor has improperly exercised his powers, interfered with the normal course of justice or exercised powers for illegitimate purposes. The minority cuts down the scope of Section 321 by imposing conditions which are not accepted by the majority opinions. While the majority focuses on the function of the Public Prosecutor, the minority dwelt on the purity of the administration of justice; (ii) Since the Chief Judicial Magistrate did not apply the correct principles, the High Court in the exercise of its revisional jurisdiction under Section 397 of the Code of Criminal Procedure ought to have intervened to correct the decision; (iii) The real test is whether the decision of the Public Prosecutor will destroy the administration of justice. This has to be answered in the negative and hence the application for withdrawal ought to be allowed., On the other hand, Mr Mahesh Jethmalani and Mr V. Chitambaresh, Senior Counsel, and Mr Ramesh Babu, Advocate‑On‑Record, appearing on behalf of Respondent Nos 7 and 8, opposed the stand of the appellants and the respondents‑accused, urging that: (i) The exercise of the freedom of speech by the Members of Legislative Assembly inside the House does not embrace the right to destroy property. The privileges under Article 194 cannot be used as a cover for violent actions of members in the precincts of the legislative assembly; (ii) The decision of the Supreme Court of India in Lokayukta, Justice Ripusudan Dayal (Retired) and Others vs State of Madhya Pradesh & Others holds that a privilege can only be provided to the extent required so as to allow the members to perform their functions without hindrance. A claim of privilege cannot be used as a shield to circumvent the application of criminal law since no person enjoys a privilege against criminal prosecution; (iii) The observation in P.V. Narasimha Rao (supra) on the mandatory prior sanction of the Speaker was only made with specific reference to Section 13 of the Prevention of Corruption Act, 1988. Section 19 provides that for the prosecution of a public servant for offences under the Act, the sanction of the authority competent to remove the said person is required. Since no such authority is specified for Members of Parliament, three judges in P.V. Narasimha Rao (supra) held that until Parliament so specifies, the Speaker would be competent to grant a sanction to prosecute under Section 19. The observation cannot be construed to have a general application to mean that the prior sanction of the Speaker is required to prosecute the members of the House for any offence, other than under the Prevention of Corruption Act, 1988; (iv) Section 197 of the Code of Criminal Procedure is not applicable to Members of Legislative Assembly since they cannot be removed from office by or with the sanction of the Government, which is a prerequisite for the application of the provision. Even otherwise, the sanction under Section 197 of the Code of Criminal Procedure is not required at the initial stage of commencing prosecution but only at a later stage after cognizance is taken; (v) The High Court has incorrectly relied on the minority opinion authored by Justice Bhagwati in Sheonandan Paswan (supra). However, both Justice Khalid in his majority opinion, and Justice Venkataramiah in his concurring opinion held that the Supreme Court of India must restrain itself from interfering with the concurrent findings of the lower courts, either accepting or rejecting the withdrawal petition filed by the Public Prosecutor. Since the Chief Judicial Magistrate dismissed the withdrawal petition in the present case and the High Court dismissed the revision petition against the order of the Chief Judicial Magistrate, the Supreme Court of India must refrain from interfering with the concurrent findings of the courts below under Article 136 of the Constitution; (vi) In the present case the Supreme Court of India must be guided by: (a) the concurrent findings on the illegality of the application for withdrawal; (b) the overriding aspect of public interest; and (c) the object of the law. The provisions of the legislation enacted by Parliament for prosecuting damage to public property make its intent clear. Section 3 of the Prevention of Damage to Public Property Act, 1984 provides a minimum sentence of six months and Section 5 has adopted a special provision on bail, whereby it is necessary to give prosecution an opportunity to oppose the application for bail. These provisions are similar to provisions for bail in the Narcotic Drugs and Psychotropic Substances Act, 1951, which indicate the intention of Parliament to consider damage to public property as a grave offence., Issues and Analysis. Having adverted to the submissions of the parties, we shall now turn to the issues raised before the Supreme Court of India. The question before the Supreme Court of India is centred on the exercise of power by the Public Prosecutor under Section 321 of the Code of Criminal Procedure and the exercise of jurisdiction by the Chief Judicial Magistrate. Before assessing the submissions of the parties, we find it necessary to discuss the position of the law on this point., Withdrawal of prosecution. Section 321 of the Code of Criminal Procedure reads as follows: \321. Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal, (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences. Provided that where such offence (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946, or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before granting consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution.\, The powers under Section 321 of the Code of Criminal Procedure have been interpreted by the Supreme Court of India on a number of occasions. In State of Bihar vs Ram Naresh Pandey & Another, a three‑judge Bench of the Supreme Court of India analysed Section 494 of the earlier Code of Criminal Procedure, 1898 (similar to Section 321 of the Code of Criminal Procedure). Justice B. Jagannadha Das observed that in granting consent to withdraw a prosecution, the court exercises a judicial function. However, in doing so, the court need not determine the matter judicially. The court only needs to be satisfied that the executive function of the Public Prosecutor has not been improperly exercised, or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. This Court also observed that the Magistrate’s power under Section 494 was to prevent abuse of power of the executive. Addressing the question of whether insufficiency of evidence is a ground for withdrawal of prosecution, the Court held that it was difficult to appreciate why the opinion arrived at by both the trial court and the Sessions Court that the view taken of that material by the Public Prosecutor viz. that it was meagre evidence on which no conviction could be asked for, should be said to be so improper that the consent of the Court under Section 494 of the Code of Criminal Procedure has to be withheld., In M.N. Sankarayaraynan Nair vs P.V. Balakrishnan, the Supreme Court of India held that the powers conferred on the Prosecutor under Section 494 of the Code of Criminal Procedure, 1898 are to be exercised in furtherance of the object of law. On the power of the court to grant consent, Justice P. Jaganmohan Reddy observed that the Court should not grant permission as a mere formality. It may do so only if it is satisfied on the materials placed before it that the grant of it subserves the administration of justice and that permission was not being sought covertly with an ulterior purpose unconnected with the vindication of the law which the executive organs are in duty bound to further and maintain., In Rajendra Kumar Jain vs State through Special Police Establishment and Others, there was an application for the withdrawal of the prosecution against Mr George Fernandes, Chairman of the Socialist Party of India. Mr Fernandes had been accused of rousing resistance against the Emergency imposed in 1975 and of participating in a conspiracy to do acts which may have resulted in the destruction of property. After the Emergency was revoked, the Special Public Prosecutor filed an application under Section 321 of the Code of Criminal Procedure in view of the changed circumstances and public interest. Given the political background of the dispute, a two‑judge bench of the Supreme Court of India, speaking through Justice O. Chinnappa Reddy, highlighted the importance of the independence of the Public Prosecutor in exercising the power under Section 321 of the Code of Criminal Procedure. In the context of a withdrawal of prosecution where matters of public policy are involved, the Court held that it is often expedient and necessary in the public interest for the public prosecutor to withdraw from prosecutions arising out of mass agitations, communal riots, regional disputes, industrial conflicts, student unrest etc. Wherever issues involve emotions and there is a surcharge of violence in the atmosphere, it has often been found necessary to withdraw from prosecutions in order to restore peace, to free the atmosphere from the surcharge of violence, to bring about a peaceful settlement of issues and to preserve the calm which may follow the storm. To persist with prosecutions where emotive issues are involved in the name of vindicating the law may even be utterly counter‑productive. An elected Government, sensitive and responsive to the feelings and emotions of the people, will be amply justified if for the purpose of creating an atmosphere of goodwill or for the purpose of not disturbing a calm which has descended it decides not to prosecute the offenders involved or not to proceed further with prosecution already launched. In such matters who but the Government can and should decide, in the first instance, whether it should be baneful or beneficial to launch or continue prosecutions. If the Government decides that it would be in the public interest to withdraw from prosecutions, how is the Government to go about this task? Under the Code of Criminal Procedure it is the Public Prosecutor that has to withdraw from the prosecution and it is the court that has to give its consent to such withdrawal. It is he who is entrusted with the task of initiating the proceeding for withdrawal from the prosecution. But, where such large and sensitive issues of public policy are involved, he must, if he is right‑minded, seek advice and guidance from the policy makers. His sources of information and resources are of a very limited nature unlike those of the policy‑makers. If the policy makers themselves move in the matter in the first instance, as indeed it is proper that they should where matters of momentous public policy are involved, and if they advise the Public Prosecutor to withdraw from the prosecution, it is not for the court to say that the initiative comes from the Government and therefore the Public Prosecutor cannot be said to have exercised a free mind. Nor can there be any quibbling over words. If ill‑informed but well‑meaning bureaucrats choose to use expressions like the Public Prosecutor is directed or the Public Prosecutor is instructed, the court will not on that ground alone stultify the larger issue of public policy by refusing its consent on the ground that the Public Prosecutor did not act as a free agent when he sought withdrawal from the prosecution. What is at stake is not the language of the letter or the prestige of the Public Prosecutor but a wider question of policy. The court, in such a situation, is to make an effort to elicit the reasons for withdrawal and satisfy itself that the Public Prosecutor too was satisfied that he should withdraw from the prosecution for good and relevant reasons. Thus the fact that the withdrawal was initiated by the government was held not to vitiate the application, so long as the Public Prosecutor had independently applied his mind. Elaborating on the scope of withdrawal on the ground of public justice, and in particular the ambit of the expression political offence, the Court held: \For our present purpose it is really unnecessary for us to enter into a discussion as to what are political offences except in a sketchy way. It is sufficient to say that politics are about Government and therefore, a political offence is one committed with the object of changing the Government of a State or inducing it to change its policy. Mahatma Gandhi, the father of the Nation, was convicted and jailed for offences against the municipal laws; so was his spiritual son and the first Prime Minister of our country. To say that an offence is of a political character is not to absolve the offender of the offence. But the question is, is it a valid ground for the Government to advise the Public Prosecutor to withdraw from the prosecution?\
id_460	1	We mentioned earlier that the Public Prosecutor may withdraw from the prosecution of a case not merely on the ground of paucity of evidence but also in order to further the broad ends of public justice, and that such broad ends of public justice may include appropriate social, economic and political purposes. It is now a matter of history that the motivating force of the party which was formed to fight the elections in 1977 was the same as the motivating force of the criminal conspiracy alleged in the order sanctioning the prosecution; only the means were different. The party which came to power as a result of the 1977 elections chose to interpret the result of the elections as a mandate of the people against the politics and the policy of the party led by Shrimati Gandhi. Subsequent events leading up to the 1980 elections, which reversed the result of the 1977 elections, may cast a doubt whether such interpretation was correct; only history can tell. If the Government of the day interpreted the result of the 1977 elections as a mandate of the people and, on that basis, advised the Public Prosecutor to withdraw from the prosecution, one cannot say that the Public Prosecutor was activated by any improper motive in withdrawing nor can one say that the Magistrate failed to exercise the supervisory function vested in him in giving his consent., The locus classicus on the interpretation of the powers conferred by Section 321 of the Criminal Procedure Code is the decision of the Constitution Bench in Sheonandan Paswan. In that case, the Board of Directors of the Patna Urban Cooperative Bank was charged with misdemeanours such as misappropriation of the bank's funds by giving multiple loans to the same person under different names and approving loans for fictitious persons. The Registrar of Cooperative Societies, at the instance of the Reserve Bank of India, directed legal action against the stakeholders. On investigation, statements were made against Dr. Jagannath Mishra, the ex‑Chief Minister of Bihar, alleging that he misused his office and made illegal personal gains while holding the office of Chief Minister. A charge sheet was filed and the Chief Judicial Magistrate took cognizance of the matter. Before the case could progress further, Dr. Mishra again took oath as Chief Minister of Bihar and a communication was issued by the Government that it had decided to withdraw the case. A withdrawal application was filed by the Public Prosecutor on grounds of lack of evidence, implication due to political vendetta, and that the prosecution would be against public policy and public interest. The Chief Judicial Magistrate gave consent for the withdrawal, and the High Court affirmed the order of the Chief Judicial Magistrate., When the matter came up before the Supreme Court of India, the appeal was dismissed by a 2:1 majority. A review petition was allowed, and the scope of Section 321 of the Criminal Procedure Code was addressed by a Constitution Bench. Chief Justice Bhagwati, in his minority opinion, held that where a withdrawal petition is filed on the ground of paucity of evidence after the charge sheet has been filed but before the charge has been framed in a warrant case, the exercise of power by the court granting consent is similar to the power of the court to discharge the accused under Section 239 of the Criminal Procedure Code. Hence, in such cases it would not be competent for the Public Prosecutor to file a withdrawal petition unless there is a material change in the evidence. The Chief Justice was of the opinion that the court must take up the exercise of discharge in such cases since it would carry greater conviction with the people., Justice Khalid, speaking for himself and Justice Natarajan, rendered the majority opinion holding that the power of the court to grant consent for a withdrawal petition is similar to the power under Section 320 of the Criminal Procedure Code to compound offences. The court in both cases will not have to enquire into the issue of conviction or acquittal of the accused person, and will only need to restrict itself to providing consent through the exercise of jurisdiction in a supervisory manner. It was held that although Section 321 does not provide any grounds for seeking withdrawal, public policy, interest of administration, inexpediency to proceed with the prosecution for reasons of State, and paucity of evidence are considered valid grounds for seeking withdrawal., The court, in deciding to grant consent to the withdrawal petition, must restrict itself to determining if the Prosecutor has exercised the power for the above legitimate reasons. When an application under Section 321 of the Criminal Procedure Code is made, it is not necessary for the court to assess the evidence to discover whether the case would end in conviction or acquittal. To contend that the court, when it exercises its limited power of giving consent under Section 321, has to assess the evidence and find out whether the case would end in acquittal or conviction would be to rewrite Section 321 and to concede a power which the scheme of Section 321 does not contemplate. The court only has to see whether the application is made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law. After considering these facets, the court must see whether the application suffers from improprieties or illegalities that would cause manifest injustice if consent is given. In the present case, having read the application for withdrawal, the order of consent and the attendant circumstances, I have no hesitation to hold that the application for withdrawal and the order giving consent were proper and strictly within the confines of Section 321 of the Criminal Procedure Code., The Supreme Court of India has repeatedly emphasized that an order passed under Section 321 comes to this Court by special leave under Article 136 of the Constitution of India. The Court has a declared policy not to embark upon a roving enquiry into the facts and evidence of cases like this or into an order of discharge. This Court will not allow itself to be converted into a court of facts and evidence. Any departure from this self‑imposed restraint is not a healthy practice. It is necessary for the Supreme Court of India, as the apex court, to remember that any observation on merits or on facts and evidence of a case which has to go back to the courts below would seriously prejudice the party affected, and therefore the Court should not tread upon this prohibited ground., An instance of the application of the Sheonandan Paswan principle was the withdrawal of prosecution of an MLA for offences involving misappropriation of public money in Yerneni Raja Ramchandar v. State of Andhra Pradesh. The appellant, an MLA, was accused of fabricating hospital records to repeatedly claim medical reimbursement for sums of Rs 289,489, Rs 60,000 and Rs 60,000. Charges of misappropriation were levelled against him. The matter was referred to the Ethics Committee of the Legislative Assembly, where the appellant tendered an apology and refunded Rs 60,000 to the Government. The Ethics Committee recommended withdrawal of the prosecution, and the State Government issued an order directing the District Collector to direct the Prosecutor to withdraw the case. Multiple applications for withdrawal were initially dismissed by the Magistrate but were ultimately allowed by the High Court. The Supreme Court of India, while refusing to allow the withdrawal, held that the power of judicial review of the High Court was limited to error of law committed by the Magistrate, and considered the implications of the Ethics Committee's disciplinary action., Justice S.B. Sinha, speaking for a two‑judge Bench, observed that the Ethics Committee of the legislature of the State of Andhra Pradesh was empowered to deal with disciplinary action against Members of the Legislative Assembly, but a criminal case against a Member should ordinarily be allowed to continue on its own merit. The High Court had monitored the investigation and directed the trial judge to complete the trial within three months. The State Government issued an order in accordance with the Ethics Committee's recommendation, although the Committee had no jurisdiction to make such recommendations. The Court held that the State's action, based on an unauthorised recommendation, was vitiated in law and attracted the doctrine of malice, and that the State, as protector of law, must act in accordance with procedure established by law, especially where public funds are concerned., In Bairam Muralidhar v. State of Andhra Pradesh, the Prosecutor sought withdrawal of the prosecution against a police officer accused of demanding a bribe to avoid implicating an individual in a kidnapping case and of reducing charges against the individual's son. The officer was charged under Sections 7 and 13(1) of the Prevention of Corruption Act, 1988. An application under Section 321 of the Criminal Procedure Code was filed on the basis that the Government had issued an order for withdrawal, citing the officer's meritorious service and directing that the case be placed before the Administrative Tribunal for disciplinary proceedings. The Supreme Court of India affirmed the concurrent findings of the High Court and the Trial Court and rejected the application for withdrawal, observing that the Public Prosecutor had merely mechanically stated the conditions precedent without independently perusing the materials or forming an independent opinion. The Court noted that the Anti‑Corruption Bureau had found no justification for withdrawal and that there was no ground to show that such withdrawal would advance the cause of justice or serve the public interest., The principles that emerge from the decisions of the Supreme Court of India on withdrawal of prosecution under Section 321 of the Criminal Procedure Code can now be formulated: (i) Section 321 entrusts the decision to withdraw from a prosecution to the Public Prosecutor, but the consent of the court is required; (ii) the Public Prosecutor may withdraw not merely on the ground of paucity of evidence but also to further the broad ends of public justice; (iii) the Public Prosecutor must formulate an independent opinion before seeking the court's consent; (iv) while the initiative may come from the Government, the court must elicit the reasons for withdrawal to ensure that the withdrawal is necessary for good and relevant reasons; (v) the court exercises a supervisory judicial function in granting consent and must be satisfied that the Prosecutor's function has not been improperly exercised, that the application is made in good faith and in the interest of public policy and justice, that it does not suffer from improprieties causing manifest injustice, that the consent sub‑serves the administration of justice, and that there is no ulterior purpose; (vi) in determining whether withdrawal sub‑serves the administration of justice, the court may scrutinise the nature and gravity of the offence and its impact on public life, especially where public funds and public trust are involved; and (vii) where both the trial judge and the revisional court have concurred in granting or refusing consent, the Supreme Court of India, while exercising its jurisdiction under Article 136, will exercise caution before disturbing concurrent findings, intervening only where there has been a failure to apply the correct principles., Articles 105 and 194 of the Constitution provide, in similar terms, for the privileges and immunities of Members of Parliament and Members of Legislative Assemblies respectively. Article 194 reads: (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees thereof, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of Section 26 of the Constitution (Forty‑fourth Amendment) Act, 1978. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature., Clause 1 of Article 194 recognises the freedom of speech in the legislature of every State, subject to the Constitution and the standing orders. Clause 2 enunciates immunity protecting a member from court proceedings in respect of anything said or any vote given in the legislature or its committees, and shields against liability for publications made by the House. Clause 3 provides that, in other respects, the privileges and immunities are those defined by law; until such law is enacted, they are the privileges that existed before Section 26 of the Forty‑fourth Amendment came into force. Clause 4 extends these privileges to persons who have the right to speak in and participate in the proceedings of the House or its committees., At the time of the adoption of the Constitution, clause 3 of Article 194 provided that the privileges, immunities and powers of a State Legislature and its members would be those of the House of Commons of the Parliament of the United Kingdom at the commencement of the Constitution. By Section 34 of the Forty‑second Amendment, clause 3 was amended to provide a transitory provision that, until the powers, privileges and immunities were defined by a law, they would be those of the British House of Commons and could evolve over time. However, Section 34 was never brought into force, and subsequently clause 3 was substituted by Section 26 of the Constitution (Forty‑fourth Amendment) Act, 1978, effective 20 June 1979. The present position is that the ultimate source of the powers, privileges and immunities of a State Legislature and its members will be determined by legislation; until such legislation is enacted, the position as it stood immediately before the coming into force of Section 26 of the Forty‑fourth Amendment governs., In the United Kingdom, the privileges and immunities of the House of Commons have evolved through three phases as described in Erskine May's Parliamentary Practice. The first phase concerned the conflict between Parliament and the courts, with the House asserting that only it could judge the extent and application of its privileges, not the courts. The second phase, in the nineteenth century, saw recognition that the law of Parliament formed part of the general law and could be examined by courts, while still maintaining a sphere of exclusive jurisdiction for the House. The third phase, in the early and mid‑twentieth century, established that proceedings wholly within the House were outside the jurisdiction of the courts unless criminal acts were involved, but actions affecting rights outside the House could be subject to judicial scrutiny.
id_460	2	In the later twentieth century, the House of Commons came to a significant conclusion about the limits of the phrase and the protection afforded to proceedings in Parliament. The privileges of the British House of Commons at the commencement of the Constitution as embodied in clause (3) of Article 194 as it then stood have significant consequences. First, the nature and extent of the privileges enjoyed by the members was to be decided by the courts and not by the legislature, following the English principle that the courts have the power to determine whether the House possessed a particular privilege. Second, the courts had the power to determine whether any of the privileges of the British House of Commons that existed at the date of the commencement of the Constitution had become inconsistent with the provisions of the Constitution. As mentioned above, since Parliament is yet to enact a law on the subject of parliamentary privileges, according to Article 194(3) of the Constitution, the Member of Legislative Assembly shall possess privileges that the members of the House of Commons possessed at the time of enactment of the Constitution. It is thus imperative to refer to judgments of the United Kingdom on whether criminal offences committed within the precincts of the House of Commons are covered under parliamentary privileges, receiving immunity from prosecution., In Regina v Eliot, Holles and Valentine (1629) 3 St Tr 292‑336, Sir John Eliot and his fellows in the House of Commons protested against the Arminian movement in the English Church in the House. During the protest, three members of the House used force to hold the Speaker down, preventing him from adjourning the House. They were charged with seditious speech and assault. The King's Bench rejected the argument of the members that only the House had exclusive jurisdiction to examine their conduct and imposed fines and sentenced them to imprisonment. The House of Lords reversed the judgment of the King's Bench on the writ of error. One of the errors specified was that the charge of seditious speech and assault on the Speaker should not have been disposed of by the same judgment. It was observed that while the former was within the exclusive jurisdiction of the House, the latter could perhaps be tried by the courts. It was not expressly and categorically stated that the assault inside the House could only be tried by the House., In Bradlaugh v Gosset, an elected member of the House of Commons prevented the Speaker from administering the oath. Subsequently, the Sergeant‑at‑Arms exerted physical force to remove the member from the precincts of the House. The elected member initiated action against the Sergeant and the same was dismissed. Justice Stephen, in his concurring judgment, observed that the House, similar to a private person, has an exercisable right to use force to prevent a trespasser from entering the House, and to authorise others to carry out its order. He stated: 'The only force which comes in question in this case is such force as any private man might employ to prevent a trespass on his own land. I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice.' Justice Stephen sought to differentiate ordinary crimes from crimes. By the former, he referred to criminal offences that are committed within the precincts of the House but bear no nexus to the effective participation in essential parliamentary functions., In Regina v Chaytor and others, the United Kingdom Supreme Court dealt with four accused persons who were charged with false accounting in relation to parliamentary expenses and claimed immunity from legal proceedings as it infringed their parliamentary privilege. Disciplinary proceedings were initiated by the House. Article 9 of the Bill of Rights 1689 provides that the freedom of speech and debates or proceedings in Parliament must not be questioned by any court or place outside Parliament. The question before the Supreme Court was what constituted proceedings in Parliament. Lord Phillips observed: 'The House does not assert an exclusive jurisdiction to deal with criminal conduct, even where this relates to or interferes with proceedings in committee or in the House. Where it is considered appropriate the police will be invited to intervene with a view to prosecution in the courts. Furthermore, criminal proceedings are unlikely to be possible without the cooperation of Parliament. Before a prosecution can take place it is necessary to investigate the facts and obtain evidence.' The Law Lord further held that the submission of claims is incidental to the administration of the Parliament and not proceedings of the Parliament: 'Where the House becomes aware of the possibility that criminal offences may have been committed by a Member in relation to the administration of the business of Parliament in circumstances that fall outside the absolute privilege conferred by article 9, the considerations of policy require that the House should be able to refer the matter to the police for consideration of criminal proceedings, or to cooperate with the police in an inquiry into the relevant facts.' Referring to the distinction made by Justice Stephen in Bradlaugh, Lord Loder observed: 'If the offences with which the appellants are charged are to be regarded as ordinary crimes, then even assuming that they are alleged to have been committed entirely within the precincts of the House the appellants can be prosecuted in the Crown Court. The only question, therefore, is whether there is any aspect of the offences which takes them out of the category of ordinary crime and into the narrower category of conduct in respect of which the House would claim a privilege of exclusive cognizance.', From the above cases it is evident that a person committing a criminal offence within the precincts of the House does not hold an absolute privilege. Instead, he would possess a qualified privilege and would receive immunity only if the action bears a nexus to the effective participation of the member in the House., The immunity available to Members of Parliament under Article 105(2) of the Constitution from liability to any proceedings in any court in respect of anything said or any vote given by him in Parliament (similar to Article 194(2) for Members of Legislative Assembly) became the subject matter of the decision of the Constitution Bench in P. V. Narasimha Rao. The judgment of the Constitution Bench, which consisted of Justice S. C. Agrawal, Justice G. N. Ray, Justice A. S. Anand, Justice S. P. Bharucha and Justice S. Rajendra Babu, comprised three opinions. The first opinion was by Justice S. C. Agrawal (on behalf of himself and Justice A. S. Anand), the second by Justice S. P. Bharucha (on behalf of himself and Justice S. Rajendra Babu) and the third by Justice G. N. Ray., In understanding the judgment of the Constitution Bench, it becomes necessary to dwell on the decision of Justice G. N. Ray. He agreed with the reasoning of Justice S. C. Agrawal that (i) a Member of Parliament is a public servant under Section 2(c) of the Prevention of Corruption Act 1988; and (ii) since there is no authority to grant sanction for the prosecution of a Member of Parliament under Section 19(1) of the Prevention of Corruption Act 1988, the Supreme Court of India can take cognizance of the offences mentioned in Section 19(1) in the absence of sanction. However, before filing a charge sheet in respect of an offence punishable under Sections 7, 10, 11, 12 and 15 against a Member of Parliament in a criminal court, the prosecuting agency must obtain the sanction of the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha as the case may be., On 26 July 1993, a Motion of No Confidence was moved in the Lok Sabha against the minority government of Shri P. V. Narasimha Rao. The support of fourteen members was needed to defeat the No Confidence Motion. The Motion was sought on 28 July 1993. Two hundred fifty‑one members voted in support, while two hundred sixty‑five voted against the Motion. It was alleged that certain Members of Parliament agreed to and received bribes from certain other Members of Parliament. A prosecution was launched against the bribe givers and the bribe takers and cognizance was taken by the Special Judge, Delhi., Before the Constitution Bench, a question was raised as to whether the legal proceedings against the said Members of Parliament would be protected under the privileges and immunities granted under Article 105(3) of the Constitution in respect of anything said or any vote given by a Member. Justice S. P. Bharucha, speaking for himself and Justice S. Rajendra Babu, held that Article 105(2) protects a Member of Parliament against court proceedings that relate to, or concern, or have a connection or nexus with anything said or any vote given by him in Parliament. He observed: 'It is difficult to agree with the learned Attorney General that though the words in respect of must receive a broad meaning, the protection under Article 105(2) is limited to court proceedings that impugn the speech that is given or the vote that is cast or arises thereout or that the object of the protection would be fully satisfied thereby. The object of the protection is to enable Members to speak their mind in Parliament and vote in the same way, freed of the fear of being made answerable on that account in a court of law. It is not enough that Members should be protected against civil action and criminal proceedings, the cause of action of which is their speech or their vote. To enable Members to participate fearlessly in parliamentary debates, Members need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote. It is for that reason that a Member is not liable to any proceedings in any court in respect of anything said or any vote given by him.', Justice S. C. Agrawal and Justice A. S. Anand reached a contrary conclusion: they held that a Member of Parliament does not enjoy immunity under Article 105(2) or Article 105(3) from being prosecuted before a criminal court for an offence involving offer or acceptance of bribe for the purpose of speaking or by giving his vote in Parliament or in any committees thereof. They reiterated that a Member of Parliament is a public servant under Section 2(c) of the Prevention of Corruption Act 1988 and, since there is no authority competent to remove a Member of Parliament and to grant sanction for his prosecution under Section 19(1) of the Prevention of Corruption Act 1988, the Supreme Court of India can take cognizance of the offences in the absence of sanction, but until Parliament provides a suitable amendment, the prosecuting agency must obtain the permission of the Chairman of the Rajya Sabha or the Speaker of the Lok Sabha before filing a charge sheet for offences punishable under Sections 7, 10, 11, 13 and 15 of the 1988 Act., The majority judgment noted that the charge against the alleged bribe takers was that they were party to a criminal conspiracy in pursuit of which they had agreed to accept bribes to defeat the No Confidence Motion on the floor of the House. In pursuit of the conspiracy, it was alleged that the bribe givers had passed on bribes to the alleged bribe takers. The Court observed that the nexus between the alleged conspiracy, the bribe and the No Confidence Motion was explicit. The expression 'in respect of' under Article 105(2) must receive a broad meaning, and the alleged conspiracy and bribe had a nexus to, and were in respect of, those votes, making the proposed criminal inquiry relevant to their votes in the motion of no confidence., The next judgment of significance is the decision of the Constitution Bench in Raja Ram Pal versus Honorable Speaker, Lok Sabha. The case, popularly known as the cash for query case, involved a sting operation that depicted certain Members of Parliament accepting money either directly or through middlemen as consideration for raising questions in the House. Another telecast alleged improper conduct of a Member of Parliament in relation to the implementation of the MP LADS Scheme. Following an enquiry by the committees of the House, the Members were expelled, leading to writ petitions challenging the expulsion. The issues for determination were: (1) whether the Supreme Court of India, within the constitutional scheme, has jurisdiction to decide the content and scope of powers, privileges and immunities of the legislatures and its Members; (2) if so, whether the powers and privileges of the legislatures in India, particularly with reference to Article 105, include the power of expulsion of their Members; and (3) whether the Court's jurisdiction to interfere in the exercise of such power or privilege is circumscribed by certain limits., Chief Justice Y. K. Sabharwal, speaking for the majority (Justice C. K. Thaker concurring), held: 'In view of the clear enunciation of law by Constitution Benches of the Supreme Court of India in case after case, there ought not be any doubt that whenever Parliament, or any State Legislature, claims any power or privilege in terms of the provisions contained in Article 105(3) or Article 194(3), it is the Court which has the authority and jurisdiction to examine, on grievance being brought before it, whether the particular power or privilege claimed or asserted by the legislature was contemplated by the constitutional provisions or, simply, whether it was such a power or privilege as was vested in the House of Commons of the Parliament of the United Kingdom at the date of commencement of the Constitution of India so as to become available to the Indian legislatures.', The principle that emerges emphatically from this judgment is that whenever a claim of privilege or immunity is raised in the context of Article 105(3) or Article 194(3), the Supreme Court of India is entrusted with the authority and jurisdiction to determine whether the claim is sustainable under the constitutional provision. The Constitution Bench held that neither Parliament nor the State legislatures in India can assert the power of self‑composition, i.e., the power to regulate their own constitution in the manner claimed by the House of Commons in the United Kingdom. The decision therefore emphasizes the doctrine of constitutional supremacy in India as distinct from parliamentary supremacy., A three‑judge bench of this Court made a distinction between legislative functions and non‑legislative functions of the members of the House for determination of the scope of the privileges. In Lokayukta, Justice Ripusudan Dayal (Retired) observed that the petitioner had initiated action against certain officers of the State Legislative Assembly for indulging in corruption relating to construction work and had initiated criminal proceedings against the officials. The Speaker of the House issued a letter to the petitioner alleging breach of privilege, against which the petitioner filed a writ petition before this Court. Allowing the petition, Chief Justice P. Sathasivam, speaking for the three‑judge bench, observed that privileges are available only as far as they are essential for the members to carry out their legislative functions. He held that the scope of the privileges must be determined based on the need for them. The Court stated: 'The scope of the privileges enjoyed depends upon the need for privileges, i.e., why they have been provided for. The basic premise for the privileges enjoyed by the Members is to allow them to perform their functions as Members and no hindrance is caused to the functioning of the House. The Committee of Privileges of the Tenth Lok Sabha noted that the basic concept is that the privileges are those rights without which the House cannot perform its legislative functions. They do not exempt the Members from their obligations under any statute which continues to apply to them like any other law applicable to ordinary citizens. Thus, enquiry or investigation into an allegation of corruption against some officers of the Legislative Assembly cannot be said to interfere with the legislative functions of the Assembly. No one enjoys any privilege against criminal prosecution.', The essence of the present case is whether the application made by the Public Prosecutor under Section 321 of the Code of Criminal Procedure falls within the interpretative understanding of Section 321 as elucidated by the decisions of this Court. The Chief Judicial Magistrate held that the application could not be allowed and the High Court, in the exercise of its revisional jurisdiction, affirmed the finding of the Chief Judicial Magistrate. In approaching this task under Article 136 of the Constitution, the Supreme Court of India must bear in mind the caution expressed in the majority decision of the Constitution Bench in Sheo nandan Paswan, namely that the Court should not embark upon a roving enquiry into the facts and evidence of a case, as any observation on merits would cause serious prejudice to parties at trial. Both the Chief Judicial Magistrate and the High Court concluded that the application for withdrawal made by the public prosecutor under Section 321 should not be allowed. The issue is whether these findings suffer from a palpable error or perversity that would warrant interference by this Court., We must at the outset clear two grounds raised by the appellants. First, the High Court, in its decision, cited observations in the minority opinion of Chief Justice Bhagwati in Sheo nandan Paswan, treating them as the view of the Court. Undoubtedly, that judgment expresses a minority opinion; the majority view is reflected in the judgment of Justice V. Khalid (speaking for himself and Justice S. Natarajan) and the concurring opinion of Justice E. S. Venkataramiah. Before we accede to the appellants' submission to displace the High Court's judgment on this count, we must consider whether it is consistent with the majority decision in Sheo nandan Paswan. The second aspect is that the High Court accepted the fact that no mala fides can be attributed to the application for withdrawal. We will consider whether this circumstance alone should have resulted in allowing the application for permission to withdraw the prosecution under Section 321, or whether other considerations must also be satisfied., Shorn of detail, the allegations against the accused need to be recapitulated. At the material time in March 2015, the respondents‑accused were elected members of the State Legislative Assembly belonging to the party in opposition. On 13 March 2015, when the Finance Minister was presenting the annual budget, the Members of Legislative Assembly in question are alleged to have disrupted the presentation of the budget. They are attributed with climbing onto the dais of the Speaker and damaging furniture and articles including the Speaker’s chair, computer, microphone, emergency lamp and an electric panel, amounting to a loss of Rs 2,20,093. Following this incident, Crime No. 236 of 2015 was registered at the behest of the Legislative Secretary of the State Assembly for offences punishable under Sections 427 and 447 read with Section 34 of the Indian Penal Code and Section 3(1) of the Prevention of Damage to Public Property Act 1984. A final report under Section 173 of the Code of Criminal Procedure was submitted by the police and cognizance was taken by the Chief Judicial Magistrate., The Prevention of Damage to Public Property Act 1984 was enacted by Parliament to provide for prevention of damage to public property and for matters connected therewith. Section 2(b) defines public property as any property, whether immovable or movable (including any machinery) which is owned by, or in the possession of, or under the control of (i) the Central Government; (ii) any State Government; (iii) any local authority; (iv) any corporation established by, or under, a Central, Provincial or State Act; (v) any company as defined in section 617 of the Companies Act, 1956; or (vi) any institution, concern or undertaking which the Central Government may, by notification in the Official Gazette, specify in this behalf, provided that the Central Government shall not specify any institution, concern or undertaking unless such institution, concern or undertaking is financed wholly or substantially by funds provided directly or indirectly by the Central Government or by one or more State Governments, or partly by the Central Government and partly by one or more State Governments. Section 427 provides for mischief causing damage of fifty rupees or upwards, punishable with imprisonment up to two years, fine, or both. Section 447 provides for criminal trespass, punishable with imprisonment up to three months, fine up to five hundred rupees, or both. The Statement of Objects and Reasons contains the rationale for the Ordinance promulgated by the President on 28 January 1984, which was enacted as a statute to curb acts of vandalism and damage to public property, including destruction during riots and public commotion. Section 3 of the Act, invoked in the present case, provides: '(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in sub‑section (2), shall be punished with imprisonment for a term which may extend to five years and with fine. (2) Whoever commits mischief by doing any act in respect of any public property being (a) any building, installation or other property used in connection with the production, distribution or supply of water, light, power or energy; (b) any oil installations; (c) any sewage works; (d) any mine or factory; (e) any means of public transportation or of tele‑communications, or any building, installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term not less than six months but which may extend to five years and with fine, provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.'
id_460	3	The expression mischief is defined in Section 2(a) to have the meaning ascribed to it in Section 425 of the Indian Penal Code (1860). The ingredients of Section 425 are: (a) causing destruction of any property with an intent to cause, or knowing the likelihood of causing, wrongful loss or damage to the public or to any person; and (b) any change in the property or its situation which destroys or diminishes its value or utility or affects it injuriously., The Prevention of Damage to Public Property Act, 1984 penalises the commission of mischief, as defined in Section 425 of the Indian Penal Code, by any act affecting public property. Section 3(1) provides that whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any change in the property or its situation that destroys or diminishes its value or utility or affects it injuriously, commits mischief. Explanation 1 states that it is not essential that the offender intend to cause loss or damage to the owner of the property; it is sufficient that he intends to cause, or knows he is likely to cause, wrongful loss or damage to any person by injuring any property, whether it belongs to that person or not. Explanation 2 provides that mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly., The following examples illustrate mischief: (a) A voluntarily burns a valuable security belonging to Z intending to cause wrongful loss to Z; (b) A introduces water into an ice‑house belonging to Z, causing the ice to melt and intending wrongful loss to Z; (c) A voluntarily throws into a river a ring belonging to Z with the intention of causing wrongful loss to Z; (d) A, knowing that his effects are about to be taken in execution to satisfy a debt to Z, destroys those effects to prevent Z from obtaining satisfaction of the debt, thereby causing damage to Z; (e) A, having insured a ship, voluntarily causes the ship to be cast away with the intention of causing damage to the underwriters; (f) A causes a ship to be cast away, intending thereby to cause damage to Z who has lent money on bottomry on the ship; (g) A, having joint property with Z in a horse, shoots the horse intending to cause wrongful loss to Z; (h) A causes cattle to enter a field belonging to Z, intending and knowing that he is likely to cause damage to Z’s crop. Each of these acts constitutes mischief., The offence is punishable with imprisonment for a term which may extend to five years and with fine. Section 3(2) covers certain specific installations where an act of mischief carries a minimum term of imprisonment of six months, which may extend to five years, and a fine. Section 5 provides a special provision for bail. Section 6 clarifies that the law is in addition to, and not in derogation of, any other law in force., The gravity of an offence involving destruction of public property was considered by the Supreme Court of India in Re: Destruction of Public and Private Properties, where it took suo motu cognizance of large‑scale destruction of public and private properties in agitations, bandhs, hartals and other forms of protest. The Court formed two committees chaired by Justice K.T. Thomas, former judge of this Court, and Mr. Fali S. Nariman, Senior Counsel, and adopted their recommendations in laying down specific guidelines for investigation and prosecution of offences involving destruction of public property, assessment of damages and determination of compensation., In the more recent decision Kodungallur Film Society and Another v. Union of India, the Supreme Court of India noted that the guidelines in Re: Destruction of Public and Private Properties have been considered by the Union of India and a draft Bill for legislative changes along the lines of the recommendations is under consideration. The Court also issued guidelines on preventive measures to curb mob violence, determining compensation and fixing liability for offences, and regarding the responsibility of police officials for investigation of such crimes., It is evident that there has been a growing recognition and consensus both in the Supreme Court of India and Parliament that acts of destruction of public and private property in the name of protests should not be tolerated. The Kerala Legislative Assembly enacted the Kerala Prevention of Damage to Private Property and Payment of Compensation Act, 2019 (Act No. 09 of 2019) to complement the central legislation, the Prevention of Damage to Public Property Act, 1984, with a special focus on private property., The persons named as accused in the FIR in the present case held responsible elected offices as Members of Legislative Assembly in the Legislative Assembly. Like any other citizen, they are subject to the boundaries of lawful behaviour set by criminal law. No member of an elected legislature can claim a privilege or immunity to stand above the sanctions of criminal law, which applies equally to all citizens. The purpose and object of the 1984 Act was to curb acts of vandalism and damage to public property, including destruction and damage caused during riots and public protests., A member of the legislature, including the opposition, has a right to protest on the floor of the legislature. This right is implicit in Article 105(1) of the Constitution as applied to Parliament and Article 194(1) as applied to State Legislatures. The first clauses of both Articles mandate freedom of speech in Parliament and in the legislature of every State. However, that freedom is subject to the provisions of the Constitution and to the rules and standing orders regulating legislative procedure. The second clause provides immunity against liability to any proceedings in any court in respect of anything said or any vote given in the legislature or any committee, and also protects against liability for publication by or under the authority of Parliament or the State Legislature., The history of Clause 3 of Article 194 shows that the powers, privileges and immunities of members of Parliament and State Legislatures were originally those recognised for Members of the House of Commons immediately before the enforcement of the Constitution. These provisions were amended by the Forty‑second Amendment and ultimately by the Forty‑fourth Amendment, which derives its present form from Section 26 of the Forty‑fourth Amendment., Tracing the history of privileges and immunities enjoyed by members of the House of Commons, Erskine May makes a doctrinal division of the position in the UK into various phases. A salient feature emerging from the privileges of members of the House of Commons is the absence of immunity from the application of criminal law. This jurisprudential development began in Sir John Elliot, was developed by Justice Stephen in Bradlaugh, and was cemented by the UK Supreme Court in Chaytor., There is a valid rationale for this position. The purpose of bestowing privileges and immunities to elected members of the legislature is to enable them to perform their functions without hindrance, fear or favour, as emphasized by the three‑judge bench in Lokayukta, Justice Ripusudan Dayal. The oath of office requires members of Parliament and State Legislatures to bear true faith and allegiance to the Constitution of India, uphold the sovereignty and integrity of India, and faithfully discharge their duties. Privileges are functional, not a mark of status, and are intended to create an environment in which legislators can perform their duties freely., Although Article 19(1)(a) recognises the right to freedom of speech and expression for every citizen, Articles 105(1) and 194(1) emphasise that there shall be freedom of speech in Parliament and in the State Legislatures, encompassing the creation of conditions for free speech within their precincts. These provisions underline the need to ensure that elected representatives can perform their duties effectively, balancing rights with corresponding duties., Privileges and immunities are not gateways to claim exemption from the general law of the land, particularly criminal law. The application for withdrawal under Section 321 was based on a fundamental mis‑conception of the constitutional provisions in Article 194. The Public Prosecutor appeared to assume that privileges would bar prosecution, which betrays the constitutional provision., The reliance placed by the appellants on P.V. Narasimha Rao to argue that the respondent’s action inside the House was a form of protest covered by Article 194(2) is unsatisfactory. The majority in P.V. Narasimha Rao dealt with the phrase ‘in respect of’ and required a nexus between the act and freedom of speech or vote. The case did not address the ambit of the privilege of freedom of speech for members of the House. In Lokayukta, Justice Ripusudan Dayal held that members possess only those privileges essential for undertaking legislative functions. An alleged act of destruction of public property within the House to protest the budget cannot be regarded as essential and is not covered by constitutional privileges., The test laid down in decisions of this Court, commencing with Ram Naresh Pandey (1957) and spanning 65 years, is consistent. When an application under Section 321 is filed, the court ensures that the public prosecutor’s function has not been improperly exercised or that the application is not an attempt to interfere with the normal course of justice for illegitimate reasons. Consent is granted only if it serves the administration of justice and is not extraneous to the vindication of the law. The public prosecutor must act independently and consider the essential purpose of exercising powers. Whether the prosecutor acted in good faith is not dispositive, as held in Sheonandan Paswan. Justice V. Khalid observed that the court must scrutinise whether the application is made in good faith, in the interest of public policy and justice, and not to thwart the process of law. Good faith is one consideration among others, and the court must also examine whether the application suffers from improprieties that would cause manifest injustice if consent is given., On these principles, there is no doubt that the Chief Justice of the High Court was justified in declining consent for withdrawal of prosecution under Section 321. The acts alleged to constitute offences under Sections 425, 427 and 447 of the Indian Penal Code and under Section 3(1) of the Prevention of Damage to Public Property Act, 1984 were committed on the floor of the State Legislature. Destruction of public property cannot be equated with freedom of speech in the legislature or legitimate protest. Allowing withdrawal of prosecution after investigation and a final report under Section 173 of the Code of Criminal Procedure would interfere with the normal course of justice for illegitimate reasons and would exempt elected representatives from criminal law, contrary to the broad ends of public justice., We now address two other arguments raised by the appellants and the respondent‑accused: (1) whether the sanction of the Speaker of the House is required for prosecuting Members of Legislative Assembly for occurrences within the Assembly precincts; and (2) whether the members are protected by privilege under Article 194(2) in case of publication of proceedings that take place inside the House., The Speaker of the Legislative Assembly is appointed under Article 178 of the Constitution. The Speaker is the presiding officer of the House and has complete autonomy to make decisions on the functioning and decorum of the House. Chapter IV of the Rules of Procedure and Conduct of Business in the Kerala Legislative Assembly states that the Speaker presides over the House, decides on sittings and adjournments, and makes arrangements for the smooth conduct of business., The appellants rely on P.V. Narasimha Rao to argue that prior sanction of the Speaker is necessary to initiate prosecution against members for offences inside the House. In that case, Members of Parliament were accused of offences under the Prevention of Corruption Act. Section 19 of the Prevention of Corruption Act provides that cognisance of offences committed by a public servant can be taken only with the prior sanction of the authority competent to remove the public servant from office. The majority held that, since MPs are public servants, prior sanction is required and, in the absence of an authority to remove an MP, the power to grant sanction resides with the Speaker. However, this observation was specific to Section 19 of the Prevention of Corruption Act and cannot be extended to a broader proposition that sanction is a prerequisite for prosecuting members of the Kerala Legislative Assembly for any offence committed within the Assembly., The appellants also rely on Section 197(1) of the Code of Criminal Procedure, which states that cognisance cannot be taken of an offence alleged to have been committed by a public servant not removable except with the sanction of the Government, unless such sanction is received. MLAs are elected representatives and cannot be removed by the sanction of the Government; they can be disqualified under the Tenth Schedule of the Constitution without government sanction. Moreover, Section 197 requires sanction only before a court takes cognizance, not for the initiation of prosecution., The appellants rely on Satish Chandra v. Speaker, Lok Sabha to contend that the Speaker’s powers include sanction for initiating proceedings against members of the Assembly. In that case, a petition under Article 32 sought a direction to the Speaker of the Lok Sabha and the Chairman of the Rajya Sabha to withhold salary and privileges of MPs disrupting the House and to try them under the Prevention of Corruption Act. The Supreme Court, relying on Ramdas Athawale v. Union of India, held that the Speaker is the interpreter of the House’s rules and procedures, and his power to regulate debate and maintain order is final and binding under Article 122(2). However, this does not grant the Speaker a carte blanche to decide when criminal proceedings should be initiated against Members of Legislative Assembly., The State of Kerala, unlike Maharashtra, has not amended the relevant provisions of the Code of Criminal Procedure to require the Speaker’s sanction for initiating criminal proceedings against MLAs. The Code of Criminal Procedure (Maharashtra Amendment) Act, 2015 amended Sections 156 and 190, stating that no Magistrate can order investigation or take cognizance of an offence alleged to have been committed by a public servant acting in discharge of official duties without the previous sanction of the sanctioning authority. Even in such cases, sanction is required only when the act was performed in the discharge of official duties.
id_460	4	When no provisions warranting the sanction of the Speaker—either specific to the offence (such as the Prevention of Corruption Act) or specific to the class (such as the Maharashtra Amendment Act, 2015)—are enacted, the argument of the appellant stands on fragile grounds. For the above‑mentioned reasons, the contention that the prosecution against the respondent‑accused is vitiated for want of sanction of the Speaker is rejected., C.5 Claiming privilege and inadmissibility of video recordings as evidence. During the course of his submissions, Mr Ranjit Kumar, learned Senior Counsel for the appellants, referred to a video recording of the incident that occurred on 13 March 2015. The video was procured by the investigating authorities from the Electronic Control Room of the House. The video recording also finds mention in the withdrawal petition filed by the Public Prosecutor, where the Prosecutor states that the video footage was obtained without the consent of the Speaker of the House and thus lacks certification under Section 65B of the Indian Evidence Act, 1872. In this regard, Mr Ranjit Kumar has made two distinct submissions, which require our consideration: (i) the incident occurred on the floor of the House and is a proceeding of the House; according to Article 194(2), no legal proceedings can be initiated against any member in respect of the publication, by or under the authority of the House, of any report, paper, votes or proceedings; based on this, the video which recorded the incident is a publication of the proceedings of the House and no Member of Legislative Assembly can face legal action for these proceedings; and (ii) the video recording of the incident belongs to the House and a copy of the video footage could not have been obtained without the sanction of the Speaker, who is the custodian of the House. In addition, the video recording lacks certification under Section 65B of the Indian Evidence Act, 1872. Without the video recording, there is insufficient evidence available with the prosecution to succeed in a trial against the respondent‑accused. It is urged that in light of this, a withdrawal of prosecution of this case is warranted., We shall deal with each of these submissions in turn., C.5.1 Immunity from publication of proceedings of the House. Article 194(1) of the Constitution provides that there shall be freedom of speech in the Legislature of every State. Clause 2 of Article 194 specifically provides that no member of the State Legislature shall be liable for any legal proceedings in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. Mr Ranjit Kumar has sought to take recourse to the second limb of Article 194(2) to claim that legal proceedings are barred against the respondent‑accused for the incident, as it allegedly formed part of the proceedings of the House, which were published under the authority of the House., For the second limb of Article 194(2) to be applicable, three elements must be present: first, there must be a publication; second, the publication must be by or under the authority of the House; and third, the publication must relate to a report, paper, vote or proceedings., The first question is the meaning of the phrase “publication” under Article 194(2). The Oxford Dictionary defines publication as the act of printing a book, a magazine etc. and making it available to the public. Thus, in common parlance, publication refers to print media. At the time of enactment of the Constitution, the members of the Constituent Assembly would not have envisioned the possibility of broadcasting of the proceedings of the House through the aid of technology as it exists at present. The discussions in the Constituent Assembly were recorded in a typed format and published. In line with the Constituent Assembly (Legislative) Rules of Procedure and Conduct of Business, which were in force till the adoption of the Constitution, the Lok Sabha and Rajya Sabha also adopted Rules of Procedure and Conduct of Business. Rule 379 of the Lok Sabha Rules records that the Secretary‑General shall prepare a full report of the proceedings of the House and publish it in such form and manner as the Speaker directs. Similar rules have been adopted by various State Legislatures, including the Kerala Legislative Assembly, which adopted the Kerala Assembly Rules. Rule 306 of the Kerala Assembly Rules is pari materia to Rule 379 of the Lok Sabha Rules. Thus, when the Constitution was enacted, the phrase “publication” was intended to mean the publication of proceedings in printed format., With the advent of technology, proceedings of Parliament and the Legislative Assembly are broadcast for public viewership, with an aim to promote accessibility to debates in the legislative body. Correspondingly, the Union and State Governments enacted legislation and issued instructions to regulate the field of broadcasting of legislative proceedings. In 1977, the Parliamentary Proceedings (Protection of Publication) Act, 1977 was enacted. Section 3 of the Act states that no person shall be liable to any civil or criminal proceeding for a substantially true publication in a newspaper of the proceedings in the House, unless the publication is not for public good. Section 4 of the Act extended the protection to broadcasting of these proceedings. Subsequently, the Constitution was amended by the Constitution (Forty‑fourth) Amendment Act, 1978 to include Article 361A. Article 361A amplifies the protection provided in the 1977 Act. Article 361A reads as follows: “Protection of publication of proceedings of Parliament and State Legislatures. (1) No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature of a State, unless the publication is proved to have been made with malice: Provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature of a State. (2) Clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to reports or matters published in a newspaper.” In May 2002, the Kerala Legislative Assembly issued Instructions on Broadcasting and Telecasting of the Governor’s Address and Assembly Proceedings pursuant to Rule 306 of the Kerala Assembly Rules. Thus, although broadcasting of proceedings was not initially visualised within the meaning of the word “publication”, the meaning of the term has evolved in contemporary parlance. Broadcasting of proceedings is also a form of publication, though not in print, which serves the same purpose of disseminating information to the public., We now turn to the second ingredient of Article 194(2), which is whether the alleged proceedings were published by or under the authority of the House. The video recording of the incident was seized from the Electronic Control Room. Various local and national news channels carried telecasts of snippets of the incident of 13 March 2015 on the very same day. The 2002 Instructions permit broadcasting of proceedings after obtaining the prior permission of the Speaker for recording. Therefore, if permission for recording the proceedings has been provided to the news channels, then the broadcast would usually be a publication under the authority of the House. However, Clause 7 of the 2002 Instructions denies permission to record any interruption or disorder during the address. Clause 7 states: “Cameras should not record any interruption or disorder or walk out during the Address. In case of any such eventuality the cameras shall be focussed only on the dignitary.” Since the 2002 Instructions grant permission for the recording of the proceedings subject to conditions such as that mentioned in Clause 7, any recording that contravenes the conditions stipulated is not a recording under the authority of the House. When the recording of such an incident is itself without authority, the publication/broadcasting of it would also have no authority of the House. Thus, though the video recording of the incident that was broadcast in the local and national news channels would fall within the purview of the word “publication”, it did not have the authority of the House to be recorded, and thus the members cannot be granted immunity., In addition, the video recording that was procured from the Electronic Control Room of the Assembly is not a copy of the broadcast of the incident in the local or national television but was a part of the internal records of the Assembly. Thus, the stored video footage of the incident was not broadcast, or in other words, published, for dissemination to the public. Since it was not a publication of the House, it does not enjoy the protection of immunity under Article 194(2) of the Constitution., Though the argument of the appellants can be rejected at this stage, we find it necessary to deal with the third ingredient—that is whether the incident that transpired on 13 March 2015 was a proceeding under Article 194(2), thus bestowing the appellants with absolute immunity., Erskine May defines the phrase “parliamentary proceedings” as follows: “The primary meaning of proceedings, as a technical parliamentary term, which it had at least as early as the seventeenth century, is some formal action, usually a decision, taken by the House in its collective capacity. While business which involves actions and decisions of the House are clearly proceedings, debate is an intrinsic part of that process which is recognised by its inclusion in the formulation of article IX. An individual Member takes part in a proceeding usually by speech, but also by various recognized forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time‑saving substitutes for speaking.”, In Attorney General of Ceylon versus de Livera, Section 14 of the Bribery Act of Ceylon (as Sri Lanka was then called) was in question before the Judicial Committee of the Privy Council. Section 14 states that an inducement or reward to a member of the House of Representatives for doing or forbearing to do any act in his capacity as such member is an offence. While interpreting the phrase “in his capacity as such member”, Viscount Radcliffe referred to Article 9 of the Bill of Rights 1689 which provides parliamentary privilege. The judgment notes: “What has come under inquiry on several occasions is the extent of the privilege of a member of the House and the complementary question, what is a proceeding in Parliament? … the proper meaning of the words ‘proceedings in Parliament’ is influenced by the context in which they appear in article 9 of the Bill of Rights; … the test … was whether the activity/function was a real or essential function of the member.” Thus, the test laid down for identification of activities that fall within the meaning of the word “parliamentary proceedings” was whether the activity/function was a real or essential function of the member., In Chaytor (supra), the question before the United Kingdom Supreme Court was the interpretation of the phrase “proceedings in Parliament”. The Court held: “The jurisprudence … supports the proposition that the principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament. … Submitting claims for allowances and expenses does not qualify for the protection of privilege. … The only thing that it will inhibit is the making of dishonest claims.” According to Chaytor, the activities undertaken within the House are classified into two categories—essential functions and non‑essential functions. The essential function of the House is collective deliberation and decision making. For an act in the House to be provided immunity from legal proceedings, it must either be an essential function or must affect the exercise of an essential function of the House., This meaning provided to the phrase “parliamentary proceedings” in Chaytor and de Livera finds support in the text of the Constitution of India. Article 194(4) states that the provisions of Articles 194(1), (2) and (3) shall also apply to anybody who takes part in the proceedings of the House. Article 212(1) states that the validity of the proceedings in the State Assembly shall not be called into question on the ground of irregularity of the procedure. In both Articles 194(4) and 212(1) it is evident that the word “proceedings” does not include all activities inside the House. If the act of the respondent‑accused is considered as a proceeding on the ground that the alleged destruction of public property held a nexus with the budget speech, then it would mean that a non‑member who is called before the Assembly to depose would also be protected by Article 194(4) if they commit a similar act. Similarly, the reference to proceedings in Article 212(1) can only mean specific actions such as the passing of a Bill. What is evident from the above discussion is that the word “proceedings” will take within it the meaning that is contextually appropriate., To understand the meaning of the word “proceedings” in Article 194(2), it is necessary to look at the context of the provision. Article 194(1) states that the members of the House shall have freedom of speech in the legislature. The freedom of speech that is provided to the members is subject to the provisions of the Constitution and other standing orders. It was held in P. V. Narasimha Rao (supra) that the freedom of speech provided to the members of the House is absolute and independent of Article 19 of the Constitution, and that the freedom of speech of the members inside the House cannot be restricted by the reasonable restrictions provided in Article 19(2) of the Constitution. Thus, although the members of the House are restricted from discussing the conduct of a Judge of the Supreme Court or High Court in the discharge of their duties, they cannot be precluded from undertaking any discussion on the grounds of violation of Article 19(2) of the Constitution., Article 194(2), as mentioned above, is divided into two limbs. The first limb provides the members absolute immunity with respect of anything said or any vote given in the House and is a manifestation of the freedom of speech provided under Article 194(1). The second limb gives the members immunity in respect of the publication of any report, paper, votes, or proceedings by or under the authority of the House. The legal immunity to anything said or any vote given in the first limb and the publication of a report, paper, votes, or proceedings in the second limb flow from the freedom of speech that is provided under Article 194(1). The exercise of these manifestations of the freedom of speech as provided in Article 194(2) has been provided with express immunity. However, the only difference between the two limbs is that the first limb protects the exercise of the freedom, and the second limb protects the member against the publication of the said exercise of the freedom. The legal proceedings against the exercise of the freedom can only be initiated by those aware of the exercise of freedom, which would mean either those who are present in the House or those who become aware of it when the speech, vote or the like is published. While the freedoms protected by both limbs are substantively the same, the second limb is clarificatory in the sense that it prevents any person from initiating proceedings against the exercise of freedom of speech inside the House when they obtain knowledge of the exercise of the said freedom through a publication. Thus, the immunity provided for the exercise of the manifestations of the freedom of speech in the second limb of Article 194(2) cannot exceed the freedom of speech provided in the first limb of Article 194(2). As held above, acts of destruction of public property are not privileged under the first limb of Article 194(2). Consequently, acts of vandalism cannot be said to be manifestations of the freedom of speech and be termed as proceedings of the Assembly. It was not the intention of the drafters of the Constitution to extend the interpretation of freedom of speech to include criminal acts by placing them under a veil of protest. Hence, the Constitution only grants the members the freedom of speech that is necessary for their active participation in meaningful deliberation without any fear of prosecution., Moreover, the word “proceedings” in Article 194(2) follows the words “any report, paper, votes”. Reports, papers and votes are actions that are undertaken by the members of the Assembly in their official capacity for participation and deliberation in the House. These are essential functions that a member has to perform in order to discharge her duty to the public as their elected representative. On application of the interpretative principle of noscitur a sociis, the phrase “proceedings” takes colour from the words surrounding it. Since the words associated with the phrase refer to actions that are exercised by the members in their official capacity, the meaning of the word “proceedings” must also be restricted to only include such actions. Accordingly, we reject the submissions of the appellant and hold that the video recording of the incident was not a proceeding of the Assembly, which would be protected from legal proceedings under Article 194(2)., C.5.2 Inadmissibility of the video recording as evidence. Mr Ranjit Kumar, learned Senior Counsel, has urged that the video recording was not obtained by the investigating authorities with the sanction of the Speaker. He submitted that the video recording belongs to the Electronic Record Room of the Assembly and, as the custodian of the House, the permission of the Speaker is necessary to access this video recording. It was also submitted that the video recording lacks the certification required for admissibility of evidence., We do not believe that this submission is relevant and merits consideration by the Supreme Court of India in an application for withdrawal of prosecution under Section 321 of the Criminal Procedure Code. In our opinion, the High Court has correctly observed that questions of insufficiency of evidence, admissibility of evidence absent certifications, etc., are to be adjudged by the trial court during the stage of trial. As held by the Constitution Bench of this Court in Sheonandan Paswan (supra), it is not the duty of this Court, in an application under Section 321 of the Criminal Procedure Code, to adjudicate upon evidentiary issues and examine the admissibility or sufficiency of evidence., For the reasons indicated above, we have arrived at the conclusion that there is no merit in the appeals. The appeals shall accordingly stand dismissed. Pending application(s), if any, stand disposed of.
id_461	0	[2023/RJJD/012727] (1 of 6) [CW-1845/2023] S.B. Civil Writ Petition No. 1845/2023 Bhagirath son of Poonma Ram, aged about 39 years, resident of Poonma Ram, Jogau, Jalore, Rajasthan. Petitioner versus State of Rajasthan, through the Secretary, Department of Education, Government of Rajasthan, Jaipur; Director, Secondary Education, Rajasthan, Bikaner; Joint Director, Education Department, Pali, Mandal‑Pali. Connected with S.B. Civil Writ Petition No. 2700/2023 Ravata Ram son of Poonma Ram, aged about 28 years, resident of Haryali, Jalore, Rajasthan. Petitioner versus State of Rajasthan, through the Secretary, Department of Education, Government of Rajasthan, Jaipur; Director, Secondary Education, Rajasthan, Bikaner; Joint Director, Education Department, Pali, Mandal‑Pali. For petitioner: Mr. Muktesh Maheshwari. For respondents: Mr. Hemant Choudhary, Government Counsel with Mr. Vishal Jangid, Deputy Government Counsel., Order heard. Learned counsel for the parties appeared. Since both writ petitions arise out of the same cause of action and are based on similar facts, they are being decided by this common order. The present writ petitions have been filed against the suspension order dated 24‑12‑2022 (Annex 1) passed by the Director, Secondary Education, Rajasthan, Bikaner, as well as the dismissal order dated 13‑01‑2023 (Annex 3) passed by the Joint Director, School Education Department, Pali., The facts necessary to be noted are that the petitioners, namely Bhagirath and Ravata Ram, were appointed as Senior Teachers in Science and Sanskrit in Sirohi and Jalore districts respectively. An FIR was registered against the petitioners at Police Station, Sukher, Udaipur on 25‑12‑2022, wherein allegations were levelled that they were solving the question paper of the Senior Teacher Examination conducted by the Rajasthan Public Service Commission. The petitioners, in pursuance of the FIR, were sent to judicial custody. While in judicial custody, an order dated 24‑12‑2022 was served upon them, placing them under suspension. Subsequently, they were served with another order dated 27‑12‑2022 seeking their defence in the proposed disciplinary inquiry by the department. Before the petitioners could file their response, they were dismissed by the respondents by order dated 13‑01‑2023., Learned counsel for the petitioners submits that once the authorities issued a notice seeking the petitioners’ response on 27‑12‑2022, they could not pass the dismissal order dated 13‑01‑2023 without completing the disciplinary inquiry. The order of 13‑01‑2023 observes that the petitioner committed grave misconduct and therefore the inquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 cannot be held, invoking Rule 19(ii) of the Rules of 1958. Counsel argues that the order is a gross violation of the principles of natural justice and is not in conformity with the provisions of Rule 19(ii). He therefore submits that the writ petitions may be allowed and the suspension order dated 24‑12‑2022 and the dismissal order dated 13‑01‑2023 may be quashed and set aside. In support, counsel relies upon the judgment of this Court rendered in S.B. Civil Writ Petition No. 5669/2021 (Bhinya Ram v. State of Rajasthan & Ors.) and other connected matters decided on 23‑05‑2022., The learned counsel for the respondents submits that the writ petition is not maintainable because an alternate remedy of filing an appeal against the order dated 13‑01‑2023 is available under Rule 23 of the Rules of 1958. He relies upon a judgment of the Honourable Supreme Court of India rendered in S.A. Khan v. State of Haryana & Ors., AIR 1993 Supreme Court 1152. Respondents contend that the petitioners were prima facie found involved in helping dummy candidates by solving papers in the examinations for recruitment of Teachers Grade‑II in the State of Rajasthan. In the criminal case pending against the petitioners, their involvement is prima facie made out in adopting malpractices by a particular group that helped dummy candidates after the paper was leaked. Accordingly, no indulgence should be granted to such persons, who are teachers and torch‑bearers of society, and the writ petitions should be dismissed., The Supreme Court of India has considered the submissions and the record. The petitioners are teachers who impart education and values to the younger generation. They were caught red‑handed along with a group of persons in a hotel at Udaipur solving papers for dummy candidates. The petitioners are posted at Sirohi and Jalore, and there is no satisfactory explanation for their presence in the hotel with persons involved in unconstitutional and unethical measures to help candidates in the teacher recruitment examination in the State of Rajasthan. Such persons do not deserve any leniency. The Court notes that leakage of papers and related malpractices create havoc in society, jeopardising the careers of honest students. The involvement of teachers in such malpractices is a serious concern, and no sympathy or benefit of doubt should be granted. After detection of the incident, the entire examination for recruitment of teachers has been cancelled. The judgment relied upon by the petitioners in the Bhinya Ram case has no application given the gravity of the charges. In the considered opinion of this Court, when the statutory alternative remedy of filing an appeal is available, the writ petitions cannot be entertained at this stage. Consequently, the writ petitions are liable to be dismissed on the ground of availability of an alternate and efficacious remedy of appeal. In view of the discussion, the present writ petitions are dismissed., However, the appellate authority shall independently examine the matter on its own merit without being influenced by the observations made by the Supreme Court of India in this order.
id_464	0	6th Floor, Block-3, CGO Complex, Lodhi Road, New Delhi-110003. Dated: 31st December 2021., In partial modification of the earlier notifications, guidelines and circulars issued by the National Company Law Tribunal regarding the functioning of the NCLT benches across the country during the Covid‑19 pandemic period, and taking note of the present spike of Covid‑19 and its variant, the guidelines of the Government of India and the various State Governments, imposing certain restrictions and regulations, the need to issue the present notification as temporary measures becomes imperative. The Government of India and the various State Governments have reported a spike of Covid‑19 and its variant. The National Capital Territory of Delhi has issued a Yellow Alert and it governs the National Capital Territory of Delhi. Other State Governments have also taken note of the spike of the new variant and have issued certain guidelines and restrictions. In view of the above, in order to ensure the safety of the members of the Bar, parties in person, officers and staff of the registry of all NCLT benches, the present notification is issued as a temporary measure. This notification is issued in partial modification of the earlier notification as applicable to the effect that the mode of hearing of cases will be virtual and filing of cases will be by e‑filing mode (Standard Operating Procedure)., The Honourable President, National Company Law Tribunal is pleased to direct all NCLT benches to take up hearings by virtual mode as indicated above from the period 03 January 2022 to 31 January 2022., This notification is subject to review and modification from time to time, if the situation warrants., This notification is issued as approved by the Honourable President, National Company Law Tribunal. IJ/4 (Siddharth J. Parmar) Deputy Registrar., Copy to: 1. Personal Secretary to the Honourable President, National Company Law Tribunal, New Delhi. 2. Honourable Members, National Company Law Tribunal. 3. Secretary, National Company Law Tribunal. 4. Personal Secretary to the Director, Shri Amar Singh Meena, Ministry of Corporate Affairs, New Delhi. 5. Registrar of National Company Law Tribunal, Principal Bench, New Delhi, Kolkata, Mumbai, Chennai, Ahmedabad, Allahabad, Bengaluru, Chandigarh, Guwahati, Hyderabad, Jaipur, Uttarakhand, Kochi, Amaravati, Indore. 6. NCLT website/Notice Board. 7. The Institute of Chartered Accountants of India, ITO, New Delhi. 8. The Institute of Company Secretaries of India, ICSI, House No. 22, Institutional Area, Lodhi Road, New Delhi - 110003. 9. The Institute of Cost Accountants of India, CMA Bhawan, 3 Institutional Area, Lodhi Road, New Delhi - 110003.
id_465	0	Appearance: Mr Masoom K. Shah (Counsel No. 6516) for the applicant; Ms Mohini K. Shah (Counsel No. 775) for the applicant; Opponent No. 2; Opponent No. 1; Date: 09 August 2021., By this writ application under Article 226 of the Constitution of India filed in public interest, the writ‑applicant has prayed for the following reliefs: (A) to declare Section 4 of the National Green Tribunal Act, 2010 as ultra vires the Constitution of India; (B) to declare the Notification No. Statutory Order 1908(E) dated 17 August 2011 as ultra vires the Constitution of India, 1950; (C) to quash and set aside the Notification dated 17 August 2011 empowering the Tribunal at Pune, to the extent of the jurisdiction to hear the cases of the State of Gujarat being conferred on the Tribunal at Pune; (D) to direct Respondent No. 1, Union of India, to establish a National Green Tribunal under the National Green Tribunal Act, 2010 at the seat of the High Court in the State of Gujarat for Gujarat State; (E) costs of this petition be awarded., At the outset, Mr Masoom K. Shah, the learned counsel appearing for the writ‑applicant, made it clear that he would not be pressing for the reliefs in paragraphs (A) and (B) respectively and would confine his case to seeking an appropriate order from this High Court as regards suggesting that the National Green Tribunal set up a circuit bench in the State of Gujarat., The facts giving rise to this writ application may be summarised as follows: the writ‑applicant is a society registered under the Societies Act, 1962 and the Trusts Act, 2001. The writ‑applicant claims to be an organization functioning for the welfare of consumers and has forty‑seven branches across the State of Gujarat. It is further pointed out that the writ‑applicant has filed many important writ applications in this High Court in public interest in the past., The writ‑applicant submits that the National Green Tribunal has circuit benches at Jodhpur, Shimla and Shillong, and that it should also consider having a circuit bench in Ahmedabad, State of Gujarat. The issue is raised because any litigation relating to the environment and falling within the ambit of the National Green Tribunal Act, 2010, arising within the State of Gujarat has to be taken to Pune, State of Maharashtra, which is at a distance of more than 700 kilometres., It is the case of the writ‑applicant that the people of Gujarat find it very difficult and cumbersome to travel all the way to Pune and engage lawyers of a different State., Section 4 of the National Green Tribunal Act, 2010, which falls in Chapter II, provides for the composition of the Tribunal. It reads: 'Composition of Tribunal. (1) The Tribunal shall consist of (a) a full‑time Chairperson; (b) not less than ten but not more than twenty full‑time Judicial Members as the Central Government may, from time to time, notify; (c) not less than ten but not more than twenty full‑time Expert Members, as the Central Government may, from time to time, notify. (2) The Chairperson of the Tribunal may, if considered necessary, invite any one or more persons having specialised knowledge and experience in a particular case before the Tribunal to assist the Tribunal in that case. (3) The Central Government may, by notification, specify the ordinary place or places of sitting of the Tribunal, and the territorial jurisdiction falling under each such place of sitting. (4) The Central Government may, in consultation with the Chairperson of the Tribunal, make rules regulating generally the practices and procedure of the Tribunal including: (a) the rules as to the persons who shall be entitled to appear before the Tribunal; (b) the rules as to the procedure for hearing applications and appeals and other matters, including the circuit procedure for hearing at a place other than the ordinary place of its sitting falling within the jurisdiction referred to in sub‑section (3); (c) the minimum number of Members who shall hear the applications and appeals in respect of any class or classes of applications and appeals, provided that the number of Expert Members shall, in hearing an application or appeal, be equal to the number of Judicial Members hearing such application or appeal; (d) rules relating to transfer of cases by the Chairperson from one place of sitting (including the ordinary place of sitting) to another place of sitting.', Thus, a plain reading of the aforesaid provision indicates that the Central Government, by notification, may specify the ordinary place or places of sitting of the Tribunal and also the territorial jurisdiction falling under each such place of sitting. The Central Government, in consultation with the Hon’ble Chairperson of the Tribunal, may make rules as to the procedure for hearing applications and appeals, including the circuit procedure for hearing at a place other than the ordinary place of its sitting falling within the jurisdiction referred to in sub‑section (3)., Our attention was thereafter drawn to the notification issued by the Ministry of Environment and Forests dated 17 August 2011. This notification, issued in exercise of powers conferred by sub‑section (3) of Section 4 of the Act, 2010, specifies the following ordinary places of sitting of the Tribunal: 1. Northern Zone – Delhi (Principal place) – jurisdiction over Uttar Pradesh, Uttarakhand, Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir, National Capital Territory of Delhi and Union Territory of Chandigarh; 2. Western Zone – Pune – jurisdiction over Maharashtra, Gujarat, Goa with Union Territories of Daman and Diu and Dadra and Nagar Haveli; 3. Central Zone – Bhopal – jurisdiction over Madhya Pradesh, Rajasthan and Chhattisgarh; 4. Southern Zone – Chennai – jurisdiction over Kerala, Tamil Nadu, Andhra Pradesh, Karnataka and Union Territories of Pondicherry and Lakshadweep; 5. Eastern Zone – Kolkata – jurisdiction over West Bengal, Odisha, Bihar, Jharkhand, the Seven Sister States of the North‑Eastern Region, Sikkim, Andaman and Nicobar Islands., Thereafter, our attention was drawn to the National Green Tribunal (Practices and Procedures) Rules, 2011, framed in exercise of the powers conferred by sub‑section 4 of Section 4 read with Section 35 of the Act, 2010. Rules 3, 4 and 6 respectively read as follows: Rule 3 – Distribution of business amongst the different ordinary places of sitting of the Tribunal. (1) The Chairperson may constitute a bench of two or more members consisting of at least one Judicial Member and one Expert Member, provided that in exceptional circumstances the Chairperson may constitute a single‑Member Bench. (2) The Chairperson shall have the power to decide the distribution of the business of the Tribunal amongst the members sitting at different places by order and specify the matters which may be dealt with by each such sitting in accordance with clause (d) of sub‑section (4) of Section 4 of the Act. (3) If any question arises as to whether any matter falls within the purview of the business allocated to a place of sitting, the decision of the Chairperson shall be final. Rule 4 – Circuit procedure. The Chairperson may, by general or special order, decide the cases or class of cases for which circuit procedure may be adopted by the Tribunal under clause (b) of sub‑section (4) of Section 4 of the Act and may delegate such powers to a Judicial Member as he may deem fit. Rule 6 – Sitting at a place other than the place where it shall ordinarily sit. If at any time a Judicial Member of the Tribunal is satisfied that circumstances exist which render it necessary to have its sitting at any place, other than the place at which it ordinarily sits, falling within its territorial jurisdiction, he may, with the previous approval of the Chairperson, direct that the sitting shall be held at any such appropriate place., Thus, Rule 4 indicates that the Hon’ble Chairperson of the Tribunal may, by general or special order, decide the cases or class of cases for which circuit procedure may be adopted by the Tribunal., As stated above, the Hon’ble Chairperson of the National Green Tribunal has established circuit benches at Jodhpur, Shimla and Shillong. The writ‑applicant contends that the Hon’ble Chairperson may consider establishing a circuit bench of the Tribunal at Ahmedabad, State of Gujarat., We have heard Mr Masoom Shah, the learned counsel appearing for the writ‑applicant; Mr Devang Vyas, the learned Additional Solicitor General of India appearing for the Union of India; Mr Nachiket Dave, the learned counsel appearing for the National Green Tribunal; and Mr Chintan Dave, the learned Additional Government Pleader appearing for the State of Gujarat., Mr Shah submitted that the Supreme Court, in the case of Subhash Kumar versus State of Bihar and others, reported in All India Reporter 1991 Supreme Court Cases 420, held that the right to life under Article 21 of the Constitution of India is a fundamental right and includes the right to free water and pollution‑free air for the full enjoyment of life. In other words, Article 21 includes the right to a healthy environment., It is argued that any aggrieved party residing in a remote place within the State of Gujarat may not be asked to travel 700 kilometres to Pune, State of Maharashtra, for redressal of any grievance relating to the environment. The poor and tribal persons who may wish to raise environmental issues would find it very difficult to travel such a long distance and engage an advocate., In the aforesaid context, Mr Shah invited the attention of this Court to a decision of the Supreme Court in the case of Swiss Ribbons versus Union of India, reported in (2019) 4 Supreme Court Cases 17, particularly the observations made in paragraphs 32 and 33. Paragraph 32 states: 'It has been argued by Shri Rohatgi that as per our judgment in Madras Bar Association (2) [Madras Bar Association versus Union of India, (2014) 10 Supreme Court Cases 1], paragraph 123 states as follows: We shall first examine the validity of Section 5 of the NTT Act. The basis of challenge to the above provision has already been narrated by us while dealing with the submissions advanced on behalf of the petitioners with reference to the fourth contention. According to the learned counsel for the petitioners, Section 5(2) of the NTT Act mandates that NTT would ordinarily have its sittings in the National Capital Territory of Delhi. According to the petitioners, the aforesaid mandate would deprive the litigating assessee of the convenience of approaching the jurisdictional High Court in the State to which he belongs. An assessee may belong to a distant or remote State, in which eventuality he would not merely have to suffer the hardship of travelling a long distance, but such travel would also entail uncalled for financial expense. Likewise, a litigant assessee from a far‑flung State may find it extremely difficult and inconvenient to identify an advocate who would represent him before NTT, since the same is mandated to be ordinarily located in the National Capital Territory of Delhi. Even though we have expressed the view that it is open to Parliament to substitute the appellate jurisdiction vested in the jurisdictional High Courts and constitute courts or tribunals to exercise the said jurisdiction, we are of the view that while vesting jurisdiction in an alternative court or tribunal, it is imperative for the legislature to ensure that redress should be available with the same convenience and expediency as it was prior to the introduction of the newly created court or tribunal. Thus viewed, the mandate incorporated in Section 5(2) of the NTT Act to the effect that the sittings of NTT would ordinarily be conducted in the National Capital Territory of Delhi would render the remedy ineffective and thus unacceptable in law. The instant aspect of the matter was considered by this Court with reference to the Administrative Tribunals Act, 1985 in S.P. Sampath Kumar case [S.P. Sampath Kumar versus Union of India, (1987) 1 Supreme Court Cases 124 : (1987) 2 Administrative Tribunal Cases 82] and L. Chandra Kumar case [L. Chandra Kumar versus Union of India, (1997) 3 Supreme Court Cases 261 : 1997 Supreme Court Cases (Law and Society) 577], wherein it was held that permanent benches needed to be established at the seat of every jurisdictional High Court. And if that was not possible, at least a circuit bench required to be established at every place where an aggrieved party could avail of his remedy. The position on the above issue is no different in the present controversy. For the above reason, Section 5(2) of the NTT Act is in clear breach of the law declared by this Court.' Paragraph 33 states: 'The learned Attorney General has assured us that this judgment will be followed and circuit benches will be established as soon as it is practicable. In this view of the matter, we record this submission and direct the Union of India to set up circuit benches of the National Company Law Appellate Tribunal within a period of six months from today.', Mr Shah, relying on the above‑referred Supreme Court decision, submitted that there should not be any different criteria for the National Green Tribunal compared to the National Company Law Appellate Tribunal and the National Tribunal. He emphasized that permanent benches are required to be established at the seat of every jurisdictional High Court and, if that is not possible, at least a circuit bench should be established within the State of Gujarat, preferably at Ahmedabad, so that an aggrieved party can avail of his remedy without undergoing hardships., The Union of India, as reflected from the affidavit‑in‑reply, averred that sub‑section 3 of Section 4 of the National Green Tribunal Act, 2010 provides that the Central Government shall specify the ordinary place or places of sitting of the NGT and its territorial jurisdiction. In terms of those provisions, the Central Government issued Notification Statutory Order (E) dated 17 August 2011 and notified five zonal benches comprising territorial jurisdiction at Delhi, Pune, Bhopal, Chennai and Kolkata. It submitted that there is no infirmity in the Notification dated 17 August 2011 relating to the jurisdiction of the Pune Bench of the NGT. The place of sitting of the Tribunal was a conscious decision by the Central Government keeping in view the proximity to the States and access of the public to the places of sitting. Further, it mentioned that the Hon’ble Supreme Court of India, vide its order dated 9 August 2012 in WP(C) No. 50 of 1998 titled Bhopal Gas Tragedy Mahila Udyog Sangathan & Ors. versus Union of India, inter alia, stated that keeping in view the provisions and scheme of the National Green Tribunal Act, 2010, particularly Sections 14, 29, 30 and 38(5), the environmental issues and matters covered under Schedule 1 of the NGT Act should be instituted and litigated before the National Green Tribunal., No reply has been filed on behalf of the Tribunal., Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the relief as prayed for and pressed in the present writ application is in the larger public interest., We are of the view, having regard to the decision of the Supreme Court in the case of Swiss Ribbons (supra), that the Central Government as well as the National Green Tribunal should deliberate on the issue of setting up a circuit bench of the Tribunal at Ahmedabad, State of Gujarat. We request the Central Government as well as the Hon’ble Chairperson of the Tribunal to consider this issue in the larger public interest and take an appropriate decision., We may only observe that it will be in the fitness of things if a circuit bench is established in Ahmedabad, State of Gujarat., With the aforesaid, this writ application stands disposed of.
id_466	0	April 26, 2022, Supplementary List Item No. 1, Writ Petition (Civil) 91 of 2022, Soumendu Adhikari v. The State of West Bengal and Others (Through Video Conference). Learned Senior Advocate Paramjit Singh Patwalia, Mr. Rajdeep Majumdar, Mr. Srijib Chakraborty, Ms. Harshika Varma, Mr. Sayak Chakraborti, Mr. Moyukh Mukherjee, Mr. Anish Kumar Mukherjee, Mr. Suryaneel Das, Mr. Kaushal Agarwal, Mr. Amrit Sinha, Mr. Surojit Saha, Advocates for the petitioner; Md. T. M. Siddiqui, Mr. N. Chatterjee, Advocates for the State; Learned Senior Advocate Jayanta Kumar Mitra, Learned Senior Advocate Jishnu Saha, Learned Senior Advocate Sonal Sinha, Ms. Jaweria Rubana, Mr. Subhankar Nag, Advocates for the State Election Commission; Learned Additional Solicitor General Dhiraj Kumar Tribedi, Mr. Tarunjyoti Tewari, Advocates; Mr. Anirban Mitra, Advocate for respondent No. 8; Mr. Vipul Kundalia, Mr. Somnath Adhikari, Advocates for the Union of India. Counsel for the parties were heard on the interim prayer for a forensic audit of CCTV footage of the Contai Municipal election., This writ petition relates to the allegations of malpractices such as booth capturing, forged voting, violence etc. during the Contai municipal elections held on 27.02.2022. The prayer in the petition is to hold fresh polls to the Contai Municipality by deployment of central paramilitary forces. Earlier orders were passed by the Supreme Court of India and directions were issued for holding the polling in free, fair and fearless manner because since the beginning the petitioner was apprehending various malpractices and violence during the election., By earlier order dated 23.02.2022 in Writ Petition (Civil) 271 of 2021 in the case of Mousumi Roy v. West Bengal State Election Commission and Others, the Supreme Court of India instead of accepting the prayer for deployment of paramilitary forces, had issued several directions to ensure holding of a fair election in the Municipalities, including the direction to the State Election Commission to install CCTV cameras at conspicuous spots in all main and ancillary booths across the State and to preserve the footage., After the election, a serious issue has been raised that in spite of the direction of the Supreme Court of India and even after holding the State Election Commission personally responsible, no free and fair elections have been held in the State especially in Contai Municipality., At this stage, pressing for an interlocutory order, the submission of counsel for the petitioner is that a forensic audit of CCTV footage, preserved on the direction of the Supreme Court of India, is necessary to bring to light that large‑scale violence and illegal polling took place during the Contai Municipal Election., Learned counsel for the petitioner, by referring to the earlier orders of the Supreme Court of India, has submitted that CCTV footage has been preserved on the direction of the Supreme Court of India to carry out its forensic audit and to ensure whether free and fair elections took place. He has submitted that the Supreme Court of India has reposed confidence on the State Election Commission which has been belied and the directions of the Supreme Court of India have not been complied with; therefore, the only option is to direct a forensic audit of CCTV footage. He has further submitted that the State Election Commission cannot now change its stand and deny the forensic audit., In support of his submission, he has placed reliance upon the order of the Hon'ble Supreme Court in the matter of Digvijay Mote v. Union of India and Others reported in (1993) 4 SCC 175, Election Commission of India v. State Bank of India, Patna and Others reported in AIR 1995 SC 1078, Laxmibai v. Collector, Nanded and Others reported in (2020) 12 SCC 186 and L. Chandra Kumar v. Union of India and Others reported in (1997) 3 SCC 261. He has further submitted that the forensic audit should be done by any of the Centre for Forensic Science Laboratory at Hyderabad, Delhi etc., Learned counsel for the State Election Commission, opposing the prayer for an interlocutory order, has submitted that the main prayer in the petition to cancel the election cannot be granted in writ jurisdiction; therefore, the interim prayer also cannot be granted and that there is a constitutional bar contained in Article 243‑ZG(b) of the Constitution. In support of this submission he has placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of Jaspal Singh Arora v. State of M.P. and Others reported in (1998) 9 SCC 594, Gurdeep Singh Dhillon v. Satpal and Others reported in (2006) 10 SCC 616 and State of Goa and Another v. Fouziya Imtiaz Shaikh and Another reported in (2021) 8 SCC 401. He has also placed reliance upon Sections 75 and 78 of the West Bengal Municipal Elections Act, 1994 and has submitted that the only remedy available is to file an election petition., Learned Advocate General has also supported the submission of the State Election Commission and has submitted that when the Supreme Court of India does not have jurisdiction to grant final relief then interim relief cannot be granted. He has also placed reliance upon Article 243‑ZG(b) of the Constitution and Sections 74 to 78 of the West Bengal Municipal Elections Act, 1994. In support of his submission, he has placed reliance upon the judgment of the Hon'ble Supreme Court in the matter of The State of Orissa v. Madan Gopal Rungta reported in (1952) SCR 28, Cotton Corporation of India Limited v. United Industrial Bank Limited and Others reported in (1983) 4 SCC 625 and Fouziya Imtiaz Shaikh and Another (supra). He has also submitted that by consent jurisdiction cannot be conferred., We have heard the learned counsel for the parties and perused the record. There is no dispute to the proposition that election of a municipality cannot be called in question except by way of an election petition. Article 243‑ZG(b) of the Constitution as also the judicial pronouncements on this point are very clear but the scope of the present matter is different. At this stage, the Supreme Court of India is not considering the prayer for setting aside the election but only intending to ascertain if the assurance given to the Supreme Court of India by the State Election Commissioner while opposing the prayer for deployment of the paramilitary forces has been fulfilled and free and fair elections have been held., Initially writ petitions were filed before the Supreme Court of India, before the date of polling, expressing apprehension of violence and unfair practices in polling, with a prayer to deploy paramilitary forces. The prayer was opposed by the State Election Commission and the State of West Bengal. The Supreme Court of India, at the stage of elections of Kolkata Municipal Corporation and at the stage of Bidhannagar, Asansol, Siliguri and Chandernagore Municipal Corporations, by order dated 10.02.2022 instead of directing deployment of paramilitary forces, issued certain directions to the State Election Commission and left it at the discretion of the Commissioner, State Election Commission, to form an opinion about deployment of paramilitary forces by observing if he reaches a decision; otherwise, he will be personally liable to ensure that no violence takes place and free, fearless and peaceful elections are held., In Writ Petition (Civil) 271 of 2021, the Supreme Court of India on 23 February 2022 had directed as follows: At this juncture it would be worth mentioning that by the order dated 10th of February 2022 the Supreme Court of India had directed the State Election Commissioner to hold a meeting and ascertain if deployment of paramilitary forces is necessary during elections in Bidhannagar Municipal Corporation. The minutes of the meeting dated 10th of February 2022 have been placed before us but those minutes only reflect certain discussions based on oral information submitted by the State authorities. The Election Commission is required to ascertain the ground situation after calling the reports and also gathering information from relevant sources about the conditions prevailing in the concerned municipality where election is scheduled., Hence, we direct that the Commissioner, State Election Commission will collect information in respect of the conditions prevailing in each of the municipalities where the elections are scheduled and will hold a joint meeting with the Home Secretary of the State and the Director General and Inspector General of the Police within 24 hours and will examine the ground situation of each of the 108 municipalities and take a decision in writing in respect of deployment of paramilitary forces by mentioning the relevant circumstances in support of his decision to deploy or not to deploy the paramilitary forces. If the Commissioner, State Election Commission takes the decision not to deploy the paramilitary forces, then he will be personally liable to ensure no violence takes place and free, fair and fearless elections take place in the municipality where paramilitary forces are not deployed., By the order dated 23.12.2021 passed in MAT 1354 of 2021, the Supreme Court of India had also issued direction to take various steps during polling including installation of CCTV cameras and preservation of CCTV footage as follows: (i) The respondent State Election Commission is directed to preserve CCTV footage of all polling stations of Kolkata Municipal Corporation Elections held on 19th December; (ii) The State Election Commission is also directed to preserve the diaries of the presiding officer and the register containing the thumb impression/signature of voters of all the polling booths in a sealed cover with immediate effect; (iii) The State Election Commission is directed to preserve the control unit of Electronic Voting Machine machines in terms of Rules 61N of the Rules of 1995 without any delay; (iv) The State Election Commission is also directed to preserve the voting record prepared from the Electronic Voting Machine in terms of Rules 61N until further orders; (v) For the forthcoming elections of the remaining Municipal Corporations/Municipal Councils, local bodies, in order to maintain transparency and fairness, we direct that the State Election Commission shall take steps to install CCTV cameras at conspicuous spots in all main and ancillary booths across the State and will preserve the CCTV footage so that in case of need it can be sent for audit., In Writ Petition (Civil) 271 of 2021 in the case of Mousumi Roy v. West Bengal State Election Commission and Others, the Supreme Court of India by order dated 23.02.2022 had directed that the above directions will apply mutatis mutandis in the remaining 108 municipality elections., At this stage, the submission of the learned counsel for the petitioner is that incidents of violence and malpractices in polling during the Contai Municipal election on 27.02.2022 have been recorded in the CCTV cameras. It has been alleged that though 97 CCTV cameras were installed, about 91 CCTV cameras were destroyed and made non‑functional. There is also an allegation that booth capturing took place during the polling and even candidates were beaten. On 11.03.2022, when this petition was taken up, the prayer made by the learned counsel for the petitioner for a forensic audit of video footage of CCTV cameras installed in the polling booth was not objected by the learned counsel for the State Election Commission., In the order‑sheet dated 11th March 2022, the stand of learned counsel for the parties was recorded as follows: Learned counsel for the petitioner, referring to the affidavit‑in‑opposition filed by respondents nos. 3 and 4, has submitted that the correct position has not been placed by the said respondents before the Supreme Court of India and, in spite of the material available, the incidents have been denied. He submits that in such circumstances it is necessary that a forensic audit of the video footage of the CCTV cameras installed in the polling booth should be done so that the correct position will come on record. Learned counsel for the State Election Commission has no objection to the same as the stand of the learned counsel is that every step should be taken to find out that a transparent and fair election was held. Learned counsel appearing for the Election Commission of India has sought adjournment to obtain instruction if it can get the forensic audit of the video footage done through an independent agency., State Election Commission, in terms of the earlier direction of the Supreme Court of India, is directed to ensure preservation of the CCTV footage as well as CCTV cameras and other records and to keep them in safe custody without any tampering until further order. The State Election Commission in the earlier proceeding had clearly recorded its no‑objection for a forensic audit; therefore, now the State Election Commissioner is not justified in changing its stand and opposing the prayer. The changed stand of the State Election Commission runs counter to its object of holding and ensuring a free and fair election. The Supreme Court of India fails to understand why the State Election Commission does not want to ascertain if free and fair elections were held or if the allegation of large‑scale booth capturing, forged voting, etc., is correct., In the detailed orders passed earlier, the Supreme Court of India had reposed confidence in the Commissioner, State Election Commission while declining the prayer to deploy paramilitary forces and had issued directions to install CCTV cameras and preserve the footage. Now, there are allegations of serious malpractices and violence in the elections during the polling of Municipal Council, Contai. So far as the objection of respondents that when the main relief in the petition itself cannot be granted then the direction to hold the forensic audit also should not be issued, we are of the opinion that at this stage the Supreme Court of India has the responsibility to ascertain if the direction issued by the Supreme Court of India earlier has been complied with by the State Election Commissioner as the earlier direction to preserve CCTV footage of polling was not an empty formality., At this stage, the Supreme Court of India is only considering the limited prayer of conducting a forensic audit of preserved CCTV footage. Such a direction, instead of interfering in the election process, is in fact in furtherance of the object of the State Election Commission to hold a free and fair election. The Supreme Court of India is conscious of the bar contained in Article 243‑ZG(b) of the Constitution, provisions of the Municipalities Act and various judicial pronouncements on the limited scope of judicial intervention in such matters. After the forensic audit report is received, it will be open to the parties to raise all legally permissible objections and the Supreme Court of India will pass a suitable order in accordance with law, keeping in view the constitutional provisions and democratic principles but at this stage there is no constitutional bar to get the forensic audit done., It is worth noting that in the present case the election of any particular member of the Contai Municipal Corporation has not been challenged but the prayer is to cancel the entire election and to conduct fresh polls by deployment of paramilitary forces. Such a general prayer in an election petition cannot be made. The judgment of the Hon'ble Supreme Court in the matter of Jaspal Singh Arora (supra) and in the matter of Fouziya Imtiaz Shaikh and Another (supra) relating to the constitutional bar are concerned, the same may not be attracted at this stage because presently the prayer before the Supreme Court of India is only to have a forensic audit of the CCTV footage which may be used for other purposes, also even for the benefit of the State Election Commission. These judgments may be relevant at the stage when the prayer for cancellation of the election in the writ petition is pressed., In the matter of Laxmibai (supra) in paragraph 42 of the judgment the Hon'ble Supreme Court has taken note of the earlier judgment in the case of Harnek Singh v. Charanjit Singh and Others reported in (2005) 8 SCC 383 wherein it was held that though under Article 243‑O of the Constitution all election disputes must be determined by way of an election petition, this by itself may not per se bar judicial review which is the basic structure of the Constitution., In the matter of L. Chandra Kumar (supra) the seven‑Judge Bench of the Hon'ble Supreme Court has held that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Hon'ble Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution and that such power vested even in the High Court under Articles 226 and 227 of the Constitution cannot be wholly excluded. Thus, from the above judicial pronouncements it is clear that in such matters judicial review under Article 226 of the Constitution is ordinarily excluded but it is not wholly excluded., Counsel for the respondent has relied upon the judgment in the matter of Jaspal Singh Arora (supra), where the election of a candidate as President of a Municipal Council was challenged in the writ petition under Article 226; hence, the Hon'ble Supreme Court held that the mode of challenge to the election being prescribed in the Act through an election petition, therefore, it cannot be called in question except by the election petition. In the matter of Gurdeep Singh Dhillon (supra) also there was a challenge to the election of a candidate by way of an election petition. Hence, it was held that the only remedy available to challenge the election was by raising an election dispute under the local statute., The Hon'ble Supreme Court in the matter of Digvijay Mote (supra) has taken note of the power of the Election Commission to postpone elections having regard to the disturbed condition of the State or part thereof to ensure free and fair elections and has held that these powers are not unbridled but subject to judicial review and that the exercise of power under Article 324 is not altogether unreviewable., In the matter of State Bank of India, Patna and Others (supra), the Hon'ble Supreme Court has held that Article 324 of the Constitution does not enable the Election Commissioner to exercise untrammelled powers. The Election Commission must trace its power either to the Constitution or the law otherwise it would become an imperium in imperio which no one is under our constitutional power., Reliance has been placed in the matter of Cotton Corporation of India Limited (supra) and in the matter of Madan Gopal Rungta (supra) in support of the plea that when final relief cannot be granted, there does not arise any question to grant interim relief but the Supreme Court of India at this stage is considering the issue of compliance of the earlier directions of the Supreme Court of India to install CCTV cameras and preserve the footage as also the direction to ensure free and fair elections. It has not been disputed before the Supreme Court of India that the Centre for Forensic Science Laboratory, Delhi can do the forensic audit of CCTV footage., Having regard to the above analysis, we are of the opinion that not only to ascertain the compliance of earlier orders of the Supreme Court of India but in the larger public interest and to uphold democratic principles, it is necessary to get a forensic audit of CCTV footage of the Contai Municipal Election done. Hence, at this stage we direct as follows: a) the respondent State Election Commission will send the CCTV footage of the Contai Municipal Election, preserved by the earlier order of the Supreme Court of India, for forensic audit to the Centre for Forensic Science Laboratory, Delhi within 10 days; b) while sending the CCTV footage as above, the State Election Commission will duly mark the concerned polling booth number to which each footage relates; c) the Centre for Forensic Science Laboratory will carry out the forensic audit of CCTV footage and ascertain if booth capturing, Electronic Voting Machine tampering, forged voting (chhapa voting), violence, etc., had taken place in the respective polling booth; d) the Centre for Forensic Science Laboratory will be free to take the help of any other independent agency in the process or seek other documents from the State Election Commission which have been preserved by the order of the Supreme Court of India, if required, with the permission of the Supreme Court of India; e) after the forensic audit, the Centre for Forensic Science Laboratory, Delhi will safely return the CCTV footage to the Commissioner, West Bengal Election Commission in a sealed cover; f) the Centre for Forensic Science Laboratory, Delhi will submit the forensic audit report to the Supreme Court of India in a sealed cover. Let the above exercise be completed within a period of six weeks from today.
id_467	0	Special Leave Petition (Criminal) No. 9032 of 2021 – Leave granted. The respondent No. 2, by his order dated 15 December 2020, exercised the powers under Section 56(1)(a)(b) of the Maharashtra Police Act, 1951. By that order, the appellant, a resident of Mandeolgaon, Taluka Badnapur, District Jalna, was directed to remove himself from the limits of District Jalna within five days and was externed from District Jalna for a period of two years from the date on which he removed himself., Five offences were relied upon in the impugned order of externment: (i) Taluka Jalna – Crime Register No. 367/2013 – Sections 452, 324, 504 and 34 of the Indian Penal Code – acquitted; (ii) Kadim Jalna – Crime Register No. 247/2018 – Sections 354, 354(a), 323 of the Indian Penal Code – pending in the court of law; (iii) Chandanzira – Crime Register No. 378/2018 – Sections 307, 325, 323, 506, 507, 37 of the Indian Penal Code – pending in the court of law; (iv) Badnapur – Crime Register No. 15/2020 – Sections 354, 354(a), 354(d), 509, 506 of the Indian Penal Code – pending in the court of law; (v) Badnapur – Crime Register No. 215/2020 – Sections 509, 501, 506 with Sections 67, 67(a) of the Information Technology Act, 2000 – under investigation. In addition, the respondent relied upon confidential in‑camera statements of witnesses A and B., A statutory appeal was preferred by the appellant against the impugned order of externment dated 15 December 2020 and was dismissed by the Appellate Authority. The appellant then filed a writ petition under Article 226 of the Constitution of India before the High Court of Bombay. A Division Bench of the High Court of Bombay, by its judgment and order dated 20 August 2021, dismissed the writ petition. The impugned order of externment was based on the confidential statements of witnesses A and B, which were said to disclose that the witnesses were unwilling to give evidence, that the appellant’s activities were dangerous, and that the offences under the Indian Penal Code were grave and causing public disturbance. The respondent further observed that the confidential statements demonstrated that the appellant was indulging in illegal activities causing alarm, danger or harm to the public., Shri Sandeep Sudhakar Deshmukh, learned counsel for the appellant, submitted that the order of externment was a mala fide act at the instance of Shri Narayan Kuche, a local Member of the Legislative Assembly, who is the appellant’s maternal uncle, and was intended to settle family disputes. He alleged that the MLA tried to implicate the appellant in a false case (Crime No. 15 of 2020) filed by Varsha Bankar at Badnapur police station. Varsha Bankar, in her police statement, admitted that the MLA’s brother advised her to make phone calls, send messages and photographs to the appellant. Following a First Information Report against the MLA, his brother and Varsha Bankar, a show‑cause notice dated 7 July 2020 was issued by the respondent to the appellant, calling upon him to show cause why an order of externment under Section 56 of the Maharashtra Police Act, 1951 should not be passed. The counsel pointed out that the in‑camera statements of witnesses A and B were general and did not refer to any specific allegation. He noted that of the five offences relied upon, one is from 2013 and two are from 2018; the fourth offence is from 2020 under Sections 354, 354A, 354D, 509 and 506 of the Indian Penal Code, and the fifth offence is under Sections 509, 501, 506 read with Sections 67 and 67(A) of the Information Technology Act, 2000. He argued that the first three offences are stale and have no live link to the purpose of the externment order, and that the remaining two offences of 2020 do not attract clauses (a) or (b) of sub‑section (1) of Section 56. He further submitted that the appellant was arrested under Section 151 of the Code of Criminal Procedure, 1973 on the basis of the same offences, and that a proposal to detain him under sub‑section (3) of Section 151 for fifteen days was rejected by the learned Judicial Magistrate, First Class on 2 June 2020, resulting in his release. He contended that the order of externment was passed without assigning reasons for the maximum two‑year period, and that under Section 58 of the Maharashtra Police Act, 1951, the maximum period of externment is two years only when justified., Shri Sachin Patil, learned counsel for the respondents, urged that while passing an order of externment the competent authority is not required to pass a reasoned order, only to record subjective satisfaction of the existence of the grounds provided in clauses (a) and (b) of sub‑section (1) of Section 56. He submitted that the scope of powers under sub‑section (3) of Section 151 of the Code of Criminal Procedure is different from the scope of powers under Section 56 of the Maharashtra Police Act, 1951, and that the High Court had examined the grounds of challenge in detail and rejected each ground, so no interference is called for with the impugned order of externment or the High Court’s order., We have considered the submissions. Under clause (d) of Article 19(1) of the Constitution of India, citizens have a fundamental right to move freely throughout the territory of India. Clause (5) of Article 19 empowers the State to impose reasonable restrictions on this right. An order of externment passed under Section 56 of the Maharashtra Police Act, 1951 restrains a person from entering a particular area and therefore infringes the right guaranteed under Article 19(1)(d). Consequently, such a restriction must satisfy the test of reasonableness., Section 56 of the Maharashtra Police Act, 1951 reads as follows: 56. Removal of persons about to commit offence [(1)] Whenever it shall appear in Greater Bombay and other areas for which a Commissioner has been appointed under section 7 to the Commissioner and in other area or areas to which the State Government may, by notification in the Official Gazette, extend the provisions of this section, to the District Magistrate, or the Sub‑Divisional Magistrate specially empowered by the State Government in that behalf (a) that the movements or acts of any person are causing or calculated to cause alarm, danger or harm to person or property or (b) that there are reasonable grounds for believing that such person is engaged or is about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapter XII, XVI or XVII of the Indian Penal Code, or in the abetment of any such offence and when in the opinion of such officer witnesses are not willing to come forward to give evidence in public against such person by reason of apprehension on their part as regards the safety of their person or property, or [(bb) that there are reasonable grounds for believing that such person is acting or is about to act (1) in any manner prejudicial to the maintenance of public order as defined in the Maharashtra Prevention of Communal, Antisocial and other Dangerous Activities Act, 1980 or (2) in any manner prejudicial to the maintenance or supplies of commodities essential to the community as defined in the Explanation to sub‑section (1) of section 3 of the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980, or (c) that an outbreak of epidemic disease is likely to result from the continued residence of an immigrant, the said officer may, by an order in writing duly served on him or by beat of drum or otherwise as he thinks fit, direct such person or immigrant so to conduct himself as shall seem necessary in order to prevent violence and alarm [or such prejudicial act], or the outbreak or spread of such disease or [notwithstanding anything contained in this Act or any other law for the time being in force, to remove himself outside such area or areas in the State of Maharashtra (whether within the local limits of the jurisdiction of the officer or not and whether contiguous or not), by such route, and within such time, as the officer may specify and not to enter or return to the area or areas specified (hereinafter referred to as the specified area or areas ) from which he was directed to remove himself. [(2) An officer directing any person under sub‑section (1) to remove himself from any specified area or areas in the State may further direct such person that during the period the order made against him is in force, as and when he resides in any other areas in the State, he shall report his place of residence to the officer‑in‑charge of the nearest police station once in every month, even if there be no change in his address. The said officer may also direct that, during the said period, as and when he goes away from the State, he shall, within ten days from the date of his departure from the State send a report in writing to the said officer, either by post or otherwise, of the date of his departure, and as and when he comes back to the State he shall, within ten days, from the date of his arrival in the State, report the date of his arrival to the officer‑in‑charge of the police station nearest to the place where he may be staying., A perusal of sub‑section (1) of Section 56 shows distinct grounds in clauses (a), (b), (bb) and (c). In the present case, clauses (a) and (b) have been invoked. Clause (a) relates to movements or acts causing or likely to cause alarm, danger or harm to a person or property. Clause (b) requires reasonable grounds to believe that the person is engaged or about to be engaged in the commission of an offence involving force or violence or an offence punishable under Chapters XII, XVI or XVII of the Indian Penal Code, and that witnesses are unwilling to give evidence in public due to apprehension for their safety or property. The opinion must be formed on the basis of material on record., As observed earlier, Section 56 encroaches on personal liberty guaranteed under Article 19(1)(d). In Pandharinath Shridhar Rangnekar v. Deputy Commissioner of Police, State of Maharashtra, paragraph 9, this Court held that the reasons justifying an extraordinary order of externment must arise from extraordinary circumstances, that a hearing under Section 59 of the Maharashtra Police Act, 1951 must be strictly complied with, and that the requirements of Section 56 must be strictly complied with., There can be no doubt that an order of externment is an extraordinary measure that deprives a citizen of the fundamental right of free movement and may even prevent the person from staying in his own house with his family, affecting his livelihood. Therefore, Section 56 should be invoked sparingly. For clause (a) there must be objective material on record showing that the person’s movements are causing or likely to cause alarm, danger or harm. For clause (b) there must be objective material showing reasonable grounds that the person is engaged or about to be engaged in an offence and that witnesses are unwilling to give evidence because of safety concerns. Recording of such subjective satisfaction by the competent authority is essential for a valid order of externment under clause (b)., On 2 June 2019, the Police Inspector of Badnapur Police Station, District Jalna, submitted a proposal to the Judicial Magistrate, First Class at Badnapur, seeking detention of the appellant for fifteen days under sub‑section (3) of Section 151 of the Code of Criminal Procedure, 1973 (as inserted by Maharashtra Act No. 7 of 1981). The proposal relied on the same six offences that were later included in the show‑cause notice dated 7 July 2020, on the basis of which the impugned order of externment was passed. The appellant was arrested and produced before the Judicial Magistrate on 2 June 2020 along with the proposal. By order dated 2 June 2020 (Annexure P‑4), the Judicial Magistrate rejected the proposal and directed the appellant’s immediate release, subject to the condition that he attend the concerned police station between 10 a.m. and 1 p.m. until 9 June 2020., The power under sub‑section (3) of Section 151, as amended for the State of Maharashtra, allows arrest on the basis of an apprehension that the person is likely to continue or commit a cognizable offence after release and that his presence would be prejudicial to public order. The Judicial Magistrate rejected the proposal to detain the appellant for fifteen days. No record shows that the order was challenged by the police. After the magistrate’s rejection, the Sub‑Divisional Police Officer initiated externment action by issuing the show‑cause notice on 7 July 2020. The notice does not allege that the appellant, after his release on 2 June 2020, committed any offence or objectionable activity., Considering the nature of the power under Section 56, the competent authority is not expected to write an elaborate judgment, but must record its subjective satisfaction of the existence of one of the grounds in sub‑section (1) on the basis of objective material. While the authority is not required to record reasons on par with a judicial order, when challenged it must be able to show the application of mind. The Supreme Court of India, while testing an order of externment, cannot assess the sufficiency of material on which subjective satisfaction was recorded, but may consider whether any material existed to permit such satisfaction. The Court may interfere where there is no material or the relevant material has not been considered, on grounds of mala fide, unreasonableness or arbitrariness., In the present case, the order dated 2 June 2020 of the Judicial Magistrate is not even considered in the impugned order of externment, although the appellant relied upon it in his reply. From 2 June 2020 until the passing of the externment order, the appellant is not shown to have been involved in any objectionable activity. The first three offences, dated 2013 and 2018, are stale and have no live link to the necessity of externment in 2020. The two offences of 2020 relate to individuals – the daughter of the MLA and Varsha Bankar, who acted on the instructions of the MLA’s brother. There is no material showing that witnesses were unwilling to depose in these cases. Consequently, neither clause (a) nor clause (b) of sub‑section (1) of Section 56 is attracted., As the order impugned deprives the fundamental right under Article 19(1)(d), it must satisfy the reasonableness test under clause (5) of Article 19. The bare facts on record show non‑application of mind and arbitrariness, rendering the order vulnerable and unsustainable in law., Section 58 of the Maharashtra Police Act, 1951 provides that a direction under sections 55, 56, 57 or 57A shall be for a period not exceeding two years from the date on which the person removes himself or is removed from the specified area, and that the competent authority must specify the area and the period. When an order for the maximum period of two years is passed, the authority must record its subjective satisfaction based on material on record. The impugned order of externment dated 15 December 2020 does not disclose any application of mind regarding the period, nor does it record the respondent’s subjective satisfaction that a two‑year restriction is necessary. Such an order would amount to an unreasonable restriction on the fundamental right guaranteed under Article 19(1)(d)., Perusal of the judgment and order of the High Court shows that the Division Bench of the High Court of Bombay did not note that an order of externment is not an ordinary measure and must be resorted to sparingly in extraordinary circumstances. It was the duty of the Constitutional Court to test the order within the well‑settled parameters., Accordingly, the appeal succeeds. The impugned order of externment dated 15 December 2020, and the judgment and order of the High Court dated 20 August 2021, are hereby quashed and set aside. The appeal is allowed in the above terms, and all pending applications, if any, stand disposed of.
id_47	0	Judgment reserved on 10 January 2022 and judgment delivered on 19 May 2022. Writ Petition (Civil) No. 2037 of 2021 and Civil Miscellaneous Nos. 5977 of 2021, 11265 of 2021 were filed through Mr. Visheshwar Shrivastav, Advocate, versus through Dr. Abhishek Manu Singhvi and Mr. Rahul Mehra, Senior Advocates, with Mr. Gautam Narayan, Assistant Solicitor General and Ms. Asmita Singh, Advocate, for the petitioner; Ms. Aishwarya Bhati, Additional Solicitor General with Ms. Monika Arora, Chief Government Solicitor and Mr. Yogesh Panwar, Mr. Ameyavikram Thanvi and Mr. Shoumendu Mukherjee, Advocates for respondent Union of India; Mr. Anurag Sarda and Mr. Ashutosh Mishra, Advocates for respondent No. 6, Brandavan Food Products; Mr. D. P. Singh, Mr. Saumay Kapoor and Ms. Puja Raghavan, Advocates for respondent No. 9; Mr. Talha A. Rahman, Mr. M. Shaz Khan, Mr. Harsh V. Kedia and Mr. Saurabh Seth, Advocates for Intervenor Bandhua Mukti Morcha. Writ Petition (Civil) No. 13104 of 2021 and Civil Miscellaneous Nos. 41322 of 2021 and 41323 of 2021 were filed through Mr. Yash Aggarwal and Ms. Chitrakshi, Advocates, versus through Mr. Manish Mohan, Chief Government Solicitor with Ms. Dhwani Sharma, Advocate, for respondent Union of India; Mr. Om Prakash, Standing Counsel with Mr. Pradeep Kumar Tripathi and Mr. Anil Kapoor, Advocates, for respondent No. 4, Food Corporation of India., The challenge in these two writ petitions primarily concerns the Doorstep Delivery of Ration Scheme evolved by the Government of National Capital Territory of Delhi (GNCTD). The scheme seeks to bypass the existing Fair Price Shop owners and dealers in the distribution of food grains and wheat flour (Atta) at the doorstep of beneficiaries under the Targeted Public Distribution System (TPDS)., Writ Petition (Civil) No. 2037 of 2021 has been preferred by a registered society of Fair Price Shop owners and dealers, i.e., the Fair Price Shop licensees appointed under the Essential Commodities Act, 1955. Writ Petition (Civil) No. 13104 of 2021 has been preferred by the Delhi Ration Dealers Union through its President and six other individual petitioners. Petitioner No. 1 is a union of more than 700 Fair Price Shop owners under the National Food Security Act, 2013 (NFSA), who are engaged in providing rations to TPDS card holders; petitioners Nos. 2 to 7 are some of the Fair Price Shop owners who are also members of the petitioner No. 1 union. These petitioners have been licensed by the GNCTD to provide ration to TPDS card holders., In Writ Petition (Civil) No. 2037 of 2021, the petitioners challenge the Mukhya Mantri Ghar Ghar Ration Yojana (MMGGRY) Scheme and the tender numbers – Bid ID No. 2021 DCCWS 198395 (tender issuing date 06 January 2021), Bid ID No. 2021 DSCSC 198921 (tender issuing date 19 January 2021), and Bid ID No. 2021 DSCSC 198916 (tender issuing date 19 January 2021) – issued by the GNCTD. In Writ Petition (Civil) No. 13104 of 2021, the petitioners seek a restraint against the GNCTD from authorising delivery of ration at the doorsteps of TPDS beneficiaries through any agency other than the Fair Price Shop owners and a direction to allow Fair Price Shop owners to deliver the ration at the doorstep of ration card holders., On 06 January 2021, the Delhi Consumer Cooperative Wholesale Store Limited (DCCWSL), Government of NCT of Delhi, respondent No. 3 in Writ Petition (Civil) No. 2037 of 2021, issued a Notice Inviting Bids (NIB) / Request for Proposal (RFP) vide tender reference Bid ID No. 2021 DCCWS 198395 for the selection of a delivery agency for implementation of direct‑to‑home delivery of Public Distribution Scheme (PDS) commodities under the MMGGRY Scheme in Delhi. The activities listed included receipt of Fair Price Shop wise allocation order, planning and scheduling of Direct to Home Delivery (DHD) operations, identification and operation of Fair Price Shops with large storage at district or group level, receipt of packed commodities at such shops, doorstep delivery of foodgrains, setting up of a MMGGRY call centre, training and capacity building, grievance resolution, scope of work for the point‑of‑sale vendor, and periodic reporting to DCCWS., The introduction to the NIB stated that the Targeted Public Distribution System (TPDS) is a food security system established by the Government of India under the Ministry of Consumer Affairs, Food and Public Distribution and managed jointly with the State/UT governments to distribute highly subsidised food grains to the economically weaker sections of society. Under the PDS scheme, subsidised wheat, rice, sugar, salt and kerosene are distributed through a network of Fair Price Shops (ration shops) across the state. In the National Capital Territory of Delhi, the operation of the PDS is managed by the Department of Food and Supplies, GNCTD, whose primary policy objective is to ensure food security through timely procurement, storage, movement and distribution of essential commodities., The NIB disclosed that the commodities delivered each month under the TPDS are rice, wheat and sugar, and that 1,754,863 ration cards had been issued across the NCT of Delhi. The lifting of commodities from Food Corporation of India (FCI) godowns is managed by Delhi State Civil Supplies Corporation Ltd. (DSCSC), respondent No. 2, and distribution in Delhi is currently managed by a network of more than 2,000 licensed Fair Price Shops appointed by the department in line with TPDS guidelines. The beneficiaries are tagged to a Fair Price Shop as per prescribed guidelines, and the Fair Price Shop dealer is responsible for displaying entitlement information, maintaining records, and ensuring that stocks are not tampered with during storage, transit or delivery., The NIB noted deficiencies in the existing TPDS system, namely non‑issuance of commodity to the end‑user beneficiary, non‑issuance as per entitlement, replacement of commodity with substandard or expired items, misleading beneficiaries by Fair Price Shops, and closure of Fair Price Shops during official operating hours. To reform the TPDS and ensure transparent delivery, the GNCTD planned to launch the Mukhya Mantri Ghar Ghar Ration Yojana (MMGGRY) to make quality ration available at the doorstep of beneficiaries in packaged form, with wheat flour (Atta) instead of wheat and packaged rice after removal of foreign objects., Under the scheme, millers would lift NFSA wheat and rice from FCI depots, process wheat into wheat flour (Atta) and clean rice, then pack them in master bags for delivery to Fair Price Shops of the Direct to Home Delivery (DHD) agency empanelled by DCCWS. The packaged wheat flour and rice would be delivered to the doorstep of beneficiaries by the DHD agency after prior notification and successful biometric authentication using e‑PoS devices., Clause 2 of the NIB set out the scope of work for the bidder, envisaging the rendering of service as a doorstep delivery agency for wheat flour (Atta), rice and sugar to be distributed at the doorstep of NFSA beneficiaries in Delhi under the MMGGRY Scheme. Clause 2.3 required the bidder to identify and set up Fair Price Shops with larger storage facilities at district or group level for interim storage of commodity prior to doorstep delivery, and to obtain necessary licences from the Department of Food and Civil Supplies, GNCTD. Clause 2.6 required timely delivery of packaged commodity from the Fair Price Shop to the beneficiary’s doorstep in accordance with the delivery schedule., Two further RFPs dated 19 January 2021 were issued by DSCSC. The first, reference Bid ID No. 2021 DSCSC 198916, invited electronic bids for empanelment of qualified flour/chakki millers to transport NFSA wheat from FCI godowns to dedicated milling units, process wheat into wheat flour (Atta), pack it in various sizes, and deliver the packets to designated Fair Price Shops. The second, reference Bid ID No. 2021 DSCSC 198921, invited bids for empanelment of an agency to transport, clean, process, package and deliver rice for distribution under the MMGGRY Scheme. Both RFPs required the bidders to be responsible for lifting, transportation, processing, packaging and delivery of the respective commodities to the designated Fair Price Shops., The petitioners sought information on 22 December 2020 regarding the MMGGRY Scheme, including a copy of the scheme and queries about its sanction by the GNCTD Cabinet, the Delhi Legislative Assembly and the Lieutenant Governor. On 1 January 2021, the GNCTD affirmed that the Government of NCT of Delhi was operating a scheme called MMGGRY, but stated that information on other queries could not be provided under Section 8(i) of the Right to Information Act, 2005., The MMGGRY Scheme was notified by the Department of Food Supplies and Consumer Affairs of the GNCTD on 20 February 2021. The framework provides that food grains will be lifted from FCI godowns by millers empanelled by DSCSC, processed into wheat flour (Atta) and packaged rice, and delivered to designated Fair Price Shops for doorstep delivery after successful biometric authentication using e‑PoS devices. Beneficiaries will be charged the cost of subsidised food grains plus a specified milling/conversion charge. The scheme is optional; beneficiaries may opt in at the beginning of each financial year or continue with the existing TPDS mechanism., Implementation of the MMGGRY Scheme is in two stages. Stage 1 engages DSCSC as the implementation and monitoring agency, empanelling millers who will lift, transport, mill, clean, pack and deliver wheat flour and rice to Fair Price Shops. Stage 2 engages DCCWS to set up Fair Price Shops across districts and empanel Direct to Home Delivery agencies to lift packed rations from the shops and deliver them to beneficiaries after prior SMS notification and biometric authentication. An e‑Proof of Delivery will be captured, and a grievance management system and call centre will be established. The entire operation will be monitored through CCTV and GPS‑fitted vehicles, with prior approval of the Minister of Food, Civil Supplies and Consumer Affairs based on Cabinet Decisions dated 6 March 2018, 21 July 2020 and 9 October 2020., Correspondence between the GNCTD and the Central Government, as well as between the Chief Minister and the Lieutenant Governor, resulted in the Council of Ministers decision dated 24 March 2021. The decision noted that the scheme of doorstep delivery of ration (wheat flour, rice and sugar) under the TPDS was approved by Cabinet Decision No. 2561 dated 6 March 2018, modified by Cabinet Decision No. 2857 dated 21 July 2020 and renamed as the Mukhya Mantri Ghar Ghar Ration Yojana. The scheme document was notified on 20 February 2021. The Department of Food and Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution, Government of India clarified that subsidised food grains allocated for distribution under the NFSA cannot be used for any state‑specific scheme under a different name, as such changes require parliamentary procedure. Consequently, the Council of Ministers proposed to rescind the MMGGRY Scheme, continue doorstep delivery of processed and packaged wheat flour, rice and sugar in accordance with the NFSA 2013 and TPDS, and retain the validity of all activities undertaken, including the tendering process for empanelment of agencies., Counsel for the petitioners submitted that the impugned scheme and the three tenders floated by the GNCTD, even prior to the promulgation of the scheme, seek to destroy the statutory framework created for distribution of food articles under the TPDS by bypassing existing Fair Price Shops and substituting them with third parties selected through tendering. The counsel highlighted that existing Fair Price Shop owners have licences under Section 3 of the Essential Commodities Act, and that orders have been issued from time to time for continuation of those licences. Under the Delhi Specified Food Articles (Regulation of Distribution) Order, 1968, a Fair Price Shop holder is defined as a retail dealer authorised under Clause 3 in respect of any specified food article. Subsequent orders, including the Delhi Specified Food Articles (Regulation of Distribution) Order, 1981 and the Public Distribution System Order, 2001, continued the institution of Fair Price Shops. The National Food Security Act, 2013, defined a Fair Price Shop as a shop licensed to distribute essential commodities under Section 3 of the Essential Commodities Act to ration card holders under the TPDS, confirming that Fair Price Shops remain the nodal point for distribution., The counsel further submitted that Section 12 of the NFSA speaks about reforms that the Central and State Governments shall progressively undertake in the implementation of the TPDS system, including doorstep delivery of foodgrains to TPDS outlets, i.e., Fair Price Shops.
id_47	1	He submits that the National Food Security Act nowhere contemplates the doing away with the existing Fair Price Shop structure, and replacing the same with a wholly new set of Fair Price Shops as envisaged under the Request for Proposal/ Notice Inviting Bids dated 06.01.2021 and the impugned Scheme. Even Section 22 of the National Food Security Act obliges the Central Government to, inter alia, provide assistance to State Governments in meeting the expenditure incurred by it towards intra‑state movement, handling of foodgrains and margins paid to fair price shop dealers., Mr. Shrivastav submits that, particularly, the Request for Proposal/ Notice Inviting Bids dated 06.01.2021 seeks to put the existing Fair Price Shop dealers out of business by diverting foodgrains allocated by the Central Government under the National Food Security Act, so as to implement the impugned Scheme, for which purpose the Government of National Capital Territory of Delhi proposes to issue Fair Price Shop licences to the successful bidders who would perform the obligations in terms of the requirements of the Request for Proposal/ Notice Inviting Bids dated 06.01.2021. He submits that this action of the Government of National Capital Territory of Delhi is in the teeth of the obligation cast on it by Section 24 of the National Food Security Act. Section 24 charges the State Governments with the responsibility for implementation and monitoring of schemes of various Ministries and Departments of the Central Government in accordance with the guidelines issued by the Central Government for each scheme, for ensuring food security to the targeted beneficiaries in the National Capital Territory of Delhi. Section 24(2) specifically charges the Government of National Capital Territory of Delhi with the responsibility under the Targeted Public Distribution System, to deliver the foodgrains from the designated depots of the Central Government in the National Capital Territory of Delhi, at the doorstep of each Fair Price Shop., He submits that the Government of National Capital Territory of Delhi is also obliged to ensure actual delivery or supply of foodgrains to the entitled persons at specified prices. However, for that purpose, it is the obligation of the Government of National Capital Territory of Delhi to follow the statutory scheme laid down in the National Food Security Act and in the Targeted Public Distribution System Order, 2015., Mr. Shrivastav submits that though the Government of National Capital Territory of Delhi is entitled to formulate other food‑based welfare schemes, and to evolve schemes for providing benefits higher than those provided under the National Food Security Act and the Targeted Public Distribution System Order, 2015, from its own resources, in the garb of so doing, the Government of National Capital Territory of Delhi cannot destroy the existing structure of Fair Price Shops and put them out of business., Mr. Shrivastav points out that the Central Government has framed the Food Security Allowance Rules, 2015 (Allowance Rules, 2015), under Section 39(2)(c) read with Section 8 of the National Food Security Act. Under these Rules, Food Security Allowance is payable to the beneficiaries to whom foodgrains are not supplied. However, Rule 9 states that Food Security Allowance shall not be payable to an entitled person who does not visit a Fair Price Shop to claim his entitlement during the month. Thus, under the Scheme of the National Food Security Act and the Rules framed thereunder, the Fair Price Shops are envisaged as the last point in the Targeted Public Distribution System, from where foodgrains are required to be collected by the targeted beneficiaries. Similarly, the Food Security (Assistance to State Governments) Rules, 2015 (Assistance to State Governments Rules, 2015), framed by the Central Government envisages intra‑state movement as movement of foodgrains within a State from a designated depot to the doorstep of the Fair Price Shops. In this regard, he has also drawn the attention of the Supreme Court of India to Rules 3 and 5 of the said Rules., Even under the Targeted Public Distribution System (Control) Order, 2015 (TPDS Order 2015), Clause 7(11) obliges the State Government to devise a suitable mechanism for transportation of foodgrains from the Food Corporation of India godowns, inter alia, to the doorstep of Fair Price Shops. Clause 8 of the TPDS Order 2015 mandates that the allocation of the foodgrains made to the State Government shall be used for distribution as per the provisions of the National Food Security Act, and not for any other purpose. Clause 8(3) mandates the State Government to ensure that physical delivery of foodgrains takes place to the Fair Price Shops in a time‑bound manner. Under Clause 8(4), the State Government is obliged to obtain a monthly certificate confirming delivery of allocated foodgrains to the Fair Price Shops. Under Clause 10 of the TPDS Order 2015, it is the responsibility of the Fair Price Shop owners to disburse foodgrains to the ration card holders as per their entitlement under the TPDS. Thus, Mr. Shrivastav submits that, particularly, by notifying the Request for Proposal/ Notice Inviting Bids dated 06.01.2021, the respondent Government of National Capital Territory of Delhi is seeking to completely destroy the existing structure for distribution of foodgrains under the National Food Security Act and TPDS, by inviting other agencies to take over the task of distribution of foodgrains to the TPDS beneficiaries. This is being done under the garb of empanelling agencies who would supply the foodgrains at the doorstep of the beneficiaries after the same is processed, such that wheat is converted into Atta, and rice is cleaned and both are packed in packages. He further submits that under the impugned Scheme, the Government of National Capital Territory of Delhi has purportedly given an option to the TPDS beneficiaries as to whether they would like to be covered by the said Scheme, or whether they would like to continue to avail of the benefits of the TPDS through the existing system of retail Fair Price Shops., Mr. Shrivastav submits that the financial viability of the Fair Price Shops has to be ensured, and the introduction of the impugned Scheme, and appointment of contractors in response to the Request for Proposal/ Notice Inviting Bids issued by the respondent Government of National Capital Territory of Delhi, would take away a substantial number of ration card holders who are registered with the existing Fair Price Shops, thereby resulting in reduction of the turnover of the existing Fair Price Shops, and making the Fair Price Shops financially unviable., In support of this submission, Mr. Shrivastav firstly relies on Rule 8 of the Assistance to State Governments Rules, 2015, which obliges the State Government to ensure payment of Fair Price Shop margins in advance. It also provides that if the price of foodgrains payable by Fair Price Shop dealers in any State or Union Territory is lower than the Fair Price Shop dealer’s margin, the State Government shall ensure upfront payment of margin, in full, to Fair Price Shop dealers. Even under the TPDS Order 2015, the viability of Fair Price Shops has been statutorily mandated. Rule 9(5) stipulates that licence of Fair Price Shop owners shall be issued, keeping in view the viability of the Fair Price Shops. He submits that this only means that not only the Fair Price Shop to which the licence may be issued should be financially viable, but also that the existing Fair Price Shops continue to remain financially viable. The issuance of any fresh licence to a Fair Price Shop owner cannot be at the cost of financial viability of the existing Fair Price Shops. Rule 9(6) obliges the State Government to ensure that the number of ration card holders attached to a Fair Price Shop is reasonable. Rule 9(7) obliges the State Government to fix an amount as the Fair Price Shop owner’s margin, which shall be periodically reviewed for ensuring sustained viability of the Fair Price Shop operations and to improve the viability of the Fair Price Shop operations. Rule 9(9) mandates that the State Government shall allow the sale of commodities, other than foodgrains distributed under the TPDS system, at the Fair Price Shops. Thus, the financial viability of the existing Fair Price Shops is bound to be protected by the State Government. However, the proposed issuance of Fair Price Shop licences to the successful bidders under the tenders in question, coupled with the taking over of the operations of the existing Fair Price Shops for the purpose of attainment of doorstep delivery of foodgrains to the beneficiaries, would completely destroy the financial viability of the existing Fair Price Shops. Mr. Shrivastav submits that the impugned Scheme and the tenders in question are in the teeth of the National Food Security Act and the TPDS Order, 2015. He has also relied upon the Justice Wadhwa Committee Report (the Committee was constituted under the directions of the Supreme Court of India in W.P.(C.) No. 196/2001 to look into the maladies affecting the proper functioning of the Public Distribution System and to suggest remedial measures). One of the specific points of reference made by the Supreme Court of India was the ideal commission or the rates payable to the dealers, wherein the Committee, in depth, examined the question of viability of Fair Price Shops. It also took note of the existing guidelines of the Food Department, requiring one thousand food cards to be attached to a Fair Price Shop unit., Mr. Shrivastav submits that the issue with regard to distribution of wheat flour (Atta) to ration card holders through TPDS under the National Food Security Act was addressed by the Central Government on 03.11.2014, when the Government issued a direction to the State Government that they may distribute wheat flour (Atta) through the network of Fair Price Shops to the eligible TPDS beneficiaries under the National Food Security Act, 2013, subject to certain conditions., Therefore, Mr. Shrivastav submits that there is nothing novel about the conversion of wheat into Atta, and about its distribution to the TPDS beneficiaries. Similarly, he submits that even in respect of doorstep delivery of foodgrains to eligible beneficiaries under the TPDS, the issue was addressed by the Central Government as early as 01.02.2018. The Central Government, by this communication addressed to all the States and Union Territories, inter alia, directed as follows: (a) NFSA beneficiaries who are above sixty‑five years of age, or who are differently abled, and have no other adult family member (16 to 65) listed in the Ration Card, and are not in a position to visit the Fair Price Shop themselves, would be eligible to be covered under the special dispensation; (b) State/UT Government may consider adopting any of the two approaches mentioned below to ensure regular supply of foodgrains to beneficiaries under such special dispensation: i. Home delivery of the entitled quota of foodgrains – State may devise the procedure for supply of foodgrains at the doorstep of such beneficiaries without adding any additional cost to the beneficiaries. A few states like Odisha have adopted this mode for distribution of foodgrains; ii. Delivery through authorized nominees of such beneficiaries – Such beneficiaries should apply for special dispensation to the authority issuing ration cards along with details and Aadhaar number of their nominee for receiving the entitled foodgrains on their behalf. Such nominee must fulfil the following conditions: the nominee must be an NFSA beneficiary tagged to the same Fair Price Shop; foodgrains should be issued to the nominee only after proper authentication/identification as in case of any other NFSA beneficiary; Fair Price Shop dealer or his/her family members cannot be authorized as a nominee; after approval, the nominee may be added in the ration card of such beneficiary and would be entitled to receive the ration of such beneficiary on his/her behalf; vigilance committees may also be advised to identify and recommend such beneficiaries to be covered under special dispensation to the concerned District Supply Officer., The submission of Mr. Shrivastav is that the Fair Price Shop owners are themselves poor and marginalized sections of the society, and the object of appointing them as Fair Price Shop licencees is to provide gainful employment to them. In this regard, he has placed reliance on the memorandum issued by the National Capital Territory of Delhi laying down the policy for allotment of Public Distribution System outlets. It stipulates that: (a) ten percent of the PDS outlets shall be reserved for women candidates whose spouse is not gainfully employed, with preference to young widows; (b) ten percent of the PDS outlets shall be reserved for ex‑servicemen and war‑widows with preference to war widows; (c) ten percent reservation will be kept for women out of the Scheduled Caste quota (which is twenty‑five percent of overall vacancies); and (d) the remaining preferential categories are physical handicapped persons, cooperative societies and employed graduates. He submits that the impugned Request for Proposal/ Notice Inviting Bids dated 06.01.2021 goes contrary to the aforesaid governmental decision. He submits that under the Request for Proposal/ Notice Inviting Bids dated 06.01.2021, there is no preference or reservation provided for any of the aforesaid categories. Clause 3.3 talks about formation of a consortium by bidders of a maximum of two bidders. The bidder, and each member of the consortium, is not allowed to participate in more than one bid. He submits that the bidders are required to furnish, as part of their bid, an earnest money deposit of Rs 88 lakhs by means of a bank guarantee valid for 180 days. He thus submits that the endeavour of the Government of National Capital Territory of Delhi is to hijack the system of procurement and distribution of foodgrains under the TPDS, and to place it in the hands of people with deep pockets., Mr. Shrivastav submits that the Central Government has not only not approved the impugned Scheme formulated by the Council of Ministers, but has expressly disapproved of the same. In this regard, he has drawn our attention to the communication dated 19.03.2021 of the Central Government, issued with reference to the notification issued by the Government of National Capital Territory of Delhi dated 20.02.2021 for implementation of the MMGGRY doorstep delivery of ration scheme under the TPDS. The Central Government informed the Government of National Capital Territory of Delhi that the subsidised foodgrains being allocated by the Central Government for distribution under the National Food Security Act cannot be used for the operationalisation of any State‑specific or other scheme under a different name, as the same is not permissible under the National Food Security Act. Further any change or amendment in the provisions of the Act, including nomenclatures used for distribution of NFSA foodgrains, can only be done through the Parliamentary procedure. The Central Government stated that it will have no objection if a separate scheme is made by the State Government, without mixing the elements of NFSA foodgrains. The Government of National Capital Territory of Delhi was called upon to follow the norms and provisions of the National Food Security Act in the rightful spirit and manner for the distribution of NFSA foodgrains to the eligible beneficiaries under the Act., Mr. Shrivastav has also drawn our attention to the communication issued on 17.06.2021, whereby the Central Government communicated to the Government of National Capital Territory of Delhi the non‑compliance of some of the provisions of the National Food Security Act by the Government of National Capital Territory of Delhi. The communication specifically referred to non‑compliance of Section 12; non‑compliance of Section 28; non‑compliance of Section 29 and non‑compliance of Section 38 of the National Food Security Act. It also gave a direction under Section 38 of the National Food Security Act to the Government of National Capital Territory of Delhi to take steps to fulfil the pending obligations under Section 12 of the Act immediately, to enable the transparent distribution of foodgrains (through electronic point of sale) under both the National Food Security Act and the Pradhan Mantri – Garib Kalyan Yojana, to all NFSA beneficiaries in Delhi, including migrants through One Nation One Ration Card., Mr. Shrivastav submits that on 22.06.2021, the Central Government once again pointed out concerns and shortcomings in the doorstep/home delivery of ration (wheat flour, rice and sugar) under the TPDS Scheme of the Government of National Capital Territory of Delhi. On 08.10.2021, the Central Government again directed the Government of National Capital Territory of Delhi to follow the norms and provisions of the National Food Security Act, 2013 in rightful spirit and manner, while distributing foodgrains to the eligible NFSA beneficiaries under the TPDS. At the same time, it stated that the Department will have no objection if a separate scheme is made by the State Government without mixing the elements of the NFSA foodgrains. It is therefore informed that all the statutory provisions of the National Food Security Act, 2013 are mandatory, and operation of TPDS as mandated shall be conducted in the manner prescribed under the NFSA, in order to ensure transparent and rightful targeting. The alleged proposal under consideration with the Delhi Government for home delivery does not fulfil the norms of the NFSA and therefore is not permissible in its current form by the Government of India., Mr. Shrivastav submits that in relation to a Union Territory, State Government is defined in Section 2(d) of the Essential Commodities Act, to mean the Administrator thereof. He submits that the Council of Ministers headed by the Chief Minister is bound to place all matters before the Lieutenant Governor. He submits that the impugned Scheme has been disagreed with by the Lieutenant Governor. The only course open to the Government of National Capital Territory of Delhi was to have the disagreement resolved by the President. In the face of the disagreement expressed by the Lieutenant Governor, the Council of Ministers headed by the Chief Minister could not have proceeded to pursue their impugned scheme and tenders. In this regard, he has drawn our attention to Articles 239 and 239AA, particularly Sub‑Article (4) thereof, and to the provisions of the Government of National Capital Territory of Delhi Act, 1991 (GNCTD Act) in particular Sections 41‑45 contained in Part IV thereof., Mr. Shrivastav submits that a perusal of the impugned Scheme notified by the Government of National Capital Territory of Delhi on 20.02.2021 states: “This issue with the prior approval of Honourable Minister (Food, Supplies & Consumer Affairs) based on Cabinet Decision No. 2561 dated 06.03.2018, Cabinet Decision No. 2857 dated 21.07.2020 and Cabinet Decision No. 2878 dated 09.10.2020. The approval of the Lieutenant Governor in whose name official acts have to be undertaken is conspicuous by its absence. This is because the Lieutenant Governor did not agree with the Cabinet decision framing the impugned Scheme.”, Mr. Shrivastav submits that the Government of National Capital Territory of Delhi has acted deliberately, in violation of Article 239AA(4) of the Constitution of India. The MMGGRY Scheme was notified despite difference of opinion with the Lieutenant Governor and without reference being made to the President of India. In this regard, he has drawn our attention to the file noting in the relevant file at Page 2/N at serial No.11, wherein the Food Supply Officer (Policy), inter alia, observed on 22.05.2021: “Government of NCT of Delhi (Amendment) Act, 2021 has come into force with effect from 27th April 2021 vide Ministry of Home Affairs, Government of India Notification No. S.O. 1705 (E) dated 27th April 2021, and pursuant to this Notification, order dated 28th April 2021 of the Principal Secretary to the Lieutenant Governor specified the subjects for the opinion of the Honourable Lieutenant Governor. Accordingly, the Law department has advised that since the draft Notification is under the NFSA Act, 2013 in exercise of the powers of the State Government, the opinion of the Honourable Lieutenant Governor shall be obtained before taking action pursuant to the decision of the Honourable Council of Ministers. Therefore, the draft notification rescinding the earlier notifications dated 20.02.2021 and fresh draft notification on Home Delivery of processed and packaged NFSA Ration under TPDS may kindly be placed before the Honourable Lieutenant Governor, Delhi for his opinion.”, He has also drawn the attention of the Supreme Court of India to the file noting dated 26.07.2021 at page 14/N made by the Lieutenant Governor, wherein paragraph 51 states: “It is noted that the above communication dated 22.06.2021 of the Central Government has not yet been considered by the Council of Ministers, Government of National Capital Territory of Delhi. Therefore, in case the Honourable Chief Minister, Government of National Capital Territory of Delhi still differs, I would request the Honourable Chief Minister, Government of National Capital Territory of Delhi to refer this matter to the Council of Ministers for its consideration and decision in accordance with Rule 49 of the Territorial Board of Revenue, 1993 read with section 45(c) of the Government of NCT of Delhi Act, 1991.”, Mr. Shrivastav submits that the impugned Request for Proposal/ Notice Inviting Bids dated 06.01.2021 seeks to paint the TPDS system black, by claiming that, over the years, post implementation of the TPDS Scheme in Delhi, feedback has been received from citizens through various channels regarding the deficiencies in the existing TPDS system. He submits that, firstly, there is no data placed on record to show on what premise the Government of National Capital Territory of Delhi claims that the aforesaid deficiencies exist in the existing TPDS system. Secondly, he submits that in the existing statutory framework, there are numerous provisions to ensure that the existing TPDS system functions efficiently and transparently. He submits that, in fact, it is a failure of the Government of National Capital Territory of Delhi in not fully implementing the legal provisions relating to transparency, accountability and vigilance in the matter of implementation of the TPDS system if it were to be accepted that deficiencies exist in the present system to implement TPDS. He further submits that the respondent Government of National Capital Territory of Delhi is merely seeking to replace one set of persons i.e. the Fair Price Shop owners, with another set of persons. That, by itself, would not, in any way, improve the TPDS system. On the contrary, with big fishes taking over the TPDS system, the system is likely to suffer erosion of credibility. In this regard, Mr. Shrivastav has referred to the powers vested in the State to confiscate essential commodities which are seized in pursuance of an order issued under Section 6A of the Essential Commodities Act on account of contravention of the provisions of the Act and the Orders issued thereunder. Section 7 lays down the penalties which may extend to imprisonment for a term up to seven years., Mr. Shrivastav submits that Section 8 of the Essential Commodities Act provides that any person who attempts to contravene, or abets a contravention of any order made under Section 3 of the Essential Commodities Act, shall be deemed to have contravened that order. Section 10B of the Essential Commodities Act empowers the Court to convict a company (means any body corporate, and includes a firm or other associations of individuals) under the Act, and to publish the factum of such conviction and such other particulars, as the Court may direct. Section 10C of the Essential Commodities Act raises a presumption of culpable mental state. The trial of a case, under the orders of the Central Government, may be undertaken summarily under Section 12A of the Essential Commodities Act., Under the National Food Security Act, Chapter IX deals with the obligations of State Government for ensuring food security. The responsibility for implementation and monitoring of the schemes of the various Ministries and Departments of the Central Government in accordance with the guidelines of the Central Government for each scheme, and their own schemes, for ensuring food security to the targeted beneficiaries, falls upon the State Government., Chapter XI of the National Food Security Act specifically deals with the aspect of transparency and accountability which provides, in Section 27, that all TPDS related records shall be placed in the public domain and kept open for inspection to the public. Section 28 talks of conduct of social audit by every local authority or any other authority or body prescribed by the State Government, to be conducted periodically on the functioning of Fair Price Shops, TPDS system and other welfare schemes, and to cause publication of its findings, and take necessary action as may be prescribed by the State Government. Mr. Shrivastav submits that even the communication issued by the Central Government dated 17.06.2021 points out the lack of action taken by the Government of National Capital Territory of Delhi in this regard. Section 29 talks of setting up of vigilance committees for ensuring transparency and proper implementation of the TPDS, and accountability of the functionaries in such system by every State Government. Such Vigilance Committees should have representation of the local authorities, Scheduled Castes, Scheduled Tribes, women and destitute persons, or persons with disability. The Vigilance Committee is empowered to carry out the following functions: (a) regularly supervise the implementation of all schemes under this Act; (b) inform the District Grievance Redressal Officer, in writing, of any violation of the provisions of this Act; and (c) inform the District Grievance Redressal Officer, in writing, of any malpractice or misappropriation of funds found by it., Mr. Shrivastav submits that even in this regard, the Government of National Capital Territory of Delhi has not taken any action as pointed out by the Central Government in its communication dated 17.06.2021., Mr. Shrivastav submits that the TPDS Order 2015, which also draws its authority from Section 3 of the Essential Commodities Act, is equally binding on the Government of National Capital Territory of Delhi. The TPDS Order provides in Clause 11 that the State Government shall ensure regular inspections of Fair Price Shops, not less than once in three months, by the designated authority. The State Government shall ensure that stocks of foodgrains under the TPDS as issued from the Food Corporation of India godowns, are not replaced or tampered with during transit, or at any other stage, till delivery to the ration card holder. The State Government is obliged to set up vigilance committees for TPDS at the State, District, Block and Fair Price Shop levels in terms of the National Food Security Act. The State Government is obliged to send a report annually to the Central Government on the functioning of the Vigilance Committees in the prescribed format. The number of vigilance meetings held by Vigilance Committee is required to be displayed on the State Web Portal, and the actions taken on the issues disclosed in meetings of Vigilance Committees are required to be reviewed in the next meeting. The State Government is obliged to notify an internal grievance redressal mechanism which shall include a toll‑free call centre and use of State Web Portal. The State is obliged to give wide publicity and to update details of the grievance redressal mechanism. The State is obliged to provide early redressal to such grievances as are raised, and also to furnish a report to the Central Government in this regard in the prescribed format. The State Government is obliged to put in place a system of periodic reporting, including through electronic platform regarding the functioning of Fair Price Shops. The State Government is obliged to ensure monitoring of the end‑to‑end operations of the TPDS through the electronic platform., Mr. Shrivastav points that clause 12 of the TPDS Order 2015 mandates that all TPDS related records shall be placed in public domain and shall be kept open for inspection to the public. It also provides for conduct of social audit with regard to functioning of the TPDS, and publication of its findings, and for taking of necessary action as may be prescribed by the State Government. The State Government has vested its police powers to conduct searches and seize books of accounts, stocks of foodgrains where it appears that they are used or will be used in contravention of the TPDS Order., Mr. Shrivastav submits that with the introduction of technology such as use of electronic point of sale machines, geo‑tagging and geo‑positioning of the foodgrains, the so‑called malpractices or deficiencies in the implementation of the TPDS have got substantially reduced. He submits that the respondent Government of National Capital Territory of Delhi is merely seeking to replace one set of persons who belong to the poorer and disadvantaged sections of society, with another set of persons who are financially strong, rather than focusing on the aspect of monitoring the working of the PDS system, and implementing provisions relating to transparency and accountability., Mr. Shrivastav submits that the stand taken by the Government of National Capital Territory of Delhi with regard to the working of the existing TPDS system by the existing Fair Price Shops demonstrates the approach with which the Government of National Capital Territory of Delhi has proceeded while issuing the impugned Request for Proposal/ Notice Inviting Bids and framing the impugned Scheme. He lastly submits that the members of the petitioner’s association are ready and willing to undertake delivery of foodgrains or wheat (Atta) at the doorstep of the TPDS beneficiaries, if the Government of National Capital Territory of Delhi were to evolve an appropriate scheme for that purpose., Before we proceed to notice the defence of the Government of National Capital Territory of Delhi, we may notice the submissions of the Union of India and the Lieutenant Governor, as their stands are in support of the petitioner’s submission with regard to the statutory status of the Fair Price Shop owners, and they also submit that the Government of National Capital Territory of Delhi has not adhered to the statutory and constitutional framework while introducing their impugned Scheme., Ms. Aishwarya Bhati, learned Additional Solicitor General, who appeared for the Union of India submitted that the State Government (as defined under section 2(22) of the National Food Security Act) has to act in consonance with the role envisaged for them under the National Food Security Act with respect to implementation of the Targeted Public Distribution System (as defined under Section 2(23)), for the distribution of the foodgrains (as defined under Section 2(5)), through the Fair Price Shops (as defined under Section 2(4)). The scheme of the Act envisages that the foodgrains are to be provided by the Central Government from the Central Pool to the State Governments, and the State Governments are entrusted with the execution of the TPDS i.e. with the pick‑up of the foodgrains from the Central Depots of the Food Corporation of India; undertake their transportation, and distribution to the Fair Price Shops. It is for the State Governments to monitor, supervise and check whether the Fair Price Shops are making the foodgrains available to the TPDS beneficiaries, who pick up their allocated rations from the Fair Price Shops to which they are assigned.
id_47	2	Chapter VIII of the National Food Security Act deals with the obligations of the Central Government, wherein the Central Government, in order to ensure the regular supply of foodgrains to persons belonging to eligible households, shall allocate from the central pool the required quantity of foodgrains to the State Governments under the Targeted Public Distribution System, as per the entitlements under section 3, and at prices specified in Schedule I., Section 24, under Chapter IX titled Obligations of the State Government for Food Security, enlists obligations of the State Governments in relation to the implementation and monitoring of schemes for ensuring food security. Section 11 of the NFSA casts an obligation on the State Governments to place the list of the identified eligible households in the public domain and display it prominently. Section 14 under Chapter VII Grievance Redressal Mechanism casts an obligation on the State Government to put an internal grievance redressal mechanism in place. Section 15 of the same Chapter further deals with the appointment or designation of District Grievance Redressal Officers for each district for expeditious and effective redressal of grievances of aggrieved persons in matters relating to distribution of entitled foodgrains or meals and to enforce the entitlements under the Act., Chapter XI deals with Transparency and Accountability and obliges the State Government to place Targeted Public Distribution System records in the public domain and keep them open for public inspection as may be prescribed by the Central Government. Section 28 deals with conduct of periodic social audit, either by a local authority or any other authority or body authorized by the State Government on the functioning of Fair Price Shops, Targeted Public Distribution System and other welfare schemes, and to cause its findings to be publicised and necessary actions taken. Sub‑section (2) of Section 28 empowers the Central Government to conduct, or cause to be conducted, social audit through experienced independent agencies., The duty to set up Vigilance Committees at the State, District, Block and Fair Price Shop levels is cast on the State Government under Section 29 for ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability in the system. The Vigilance Committees shall regularly supervise the implementation of the scheme, inform the District Grievance Redressal Officer in writing of any violation of the provisions of the Act, and also of any malpractice or misappropriation of funds found by it., Ms. Bhati further submitted that in order to bring reforms in the Targeted Public Distribution System under Chapter V of the Act, the Central Government introduced electronic machines i.e. electronic Point of Sale (ePoS) at the Fair Price Shops to ensure transparent recording of transactions at all levels and to prevent diversion., Section 32 of the NFSA deals with the aspect of Other Welfare Schemes, which states that the provisions of the Act shall not preclude either the Central or the State Government from continuing or formulating other food‑based welfare schemes. Sub‑section (2) of Section 32 states that the State Governments may continue with, or formulate, food or nutrition based plans or schemes for providing benefits higher than the existing benefits being provided under the Act, from their own resources., Ms. Bhati referred to the provisions of the Targeted Public Distribution System Order, 2015 issued by the Central Government under Section 3 of the Essential Commodities Act. Clause 6 of the Order deals with the delivery of foodgrains to the designated depots in each State by the Food Corporation of India under the Targeted Public Distribution System, as per the allocation made by the Central Government. Clause 8 deals with further distribution of the foodgrains allocated by the Central Government by the State Government through the Targeted Public Distribution System. Under sub‑clause 3 of Clause 8, the State Government is required to ensure, through the authorized agency, physical delivery of foodgrains to the Fair Price Shop by the end of the month preceding the allocation month and, in any case, not later than the first week of the allocation month. Clause 9 provides for licensing and regulation of Fair Price Shops by the State Government for regulating the sale and distribution of essential commodities. Clause 10 enlists the operation of the Fair Price Shops wherein the Fair Price Shop owner shall disburse foodgrains., Section 38 of the NFSA empowers the Central Government to issue orders for the effective implementation of the provisions of the Act, and the State Governments are bound to comply with such directions., The Department of Food and Public Distribution, under the Ministry of Consumer Affairs, Food and Public Distribution, vide order dated 19 March 2021 issued instructions to the Government of National Capital Territory of Delhi (GNCTD) against the impugned scheme namely Mukhya Mantri Ghar‑Ghar Ration Yojana (MMGGRY). The order informed the GNCTD that the new nomenclature/scheme name for distribution of NFSA foodgrains by GNCTD is not permissible, but that the Central Government would have no objection if a separate scheme is made by the State Government without mixing it with the elements of the NFSA foodgrains. The relevant extract of the order is reproduced below:, Dated: 19/03/2021 Dear Ms. Padmini, This refers to the Notification of the Government of NCT of Delhi dated 20/02/2021 for the implementation of a State‑specific scheme titled “Mukhya Mantri Ghar‑Ghar Ration Yojana (MMGGRY)” for doorstep delivery of ration (packaged wheat flour, packaged rice and packaged sugar) under the Targeted Public Distribution System. Upon examination of the said notification, it is clarified that the subsidised foodgrains being allocated by this Department for distribution under the National Food Security Act cannot be used for the operationalisation of any State‑specific or other scheme under a different name/nomenclature other than NFSA, as the same is not permissible under the Act. Further, any changes or amendments in the provisions of the Act, including nomenclatures used for distribution of NFSA foodgrains, can only be done through Parliamentary procedures. It is also highlighted that while States may wish to enhance the distribution of subsidised foodgrains, including additional entitlements or more subsidy, the nomenclature from NFSA to any local state scheme name may be misinterpreted by the beneficiaries as a State benefit and may give rise to confusion regarding their rights under the Act. In view of the above, the use of a new nomenclature/scheme name for distribution of NFSA foodgrains by GNCTD is not permissible but this Department will have no objection if a separate scheme is made by the State Government without mixing the elements of the NFSA foodgrains. It is therefore requested that GNCTD may follow the norms and provisions of the NFSA in rightful spirit and manner for the distribution of NFSA foodgrains to the eligible beneficiaries under the Act. Best wishes, Yours sincerely, S. Jagannathan (emphasis supplied)., Further, while exercising its power under Section 38 of the NFSA, the Central Government vide order dated 17 June 2021 highlighted some of the non‑compliances by the GNCTD of the provisions of the NFSA and directed the GNCTD to comply with the same. The Central Government called upon the GNCTD to operationalise the ePoS devices at the Fair Price Shops to ensure transparency in distribution of foodgrains, non‑operationalisation of which was resulting in blocking the implementation of the One Nation One Ration Card (ONORC). Other shortcomings pointed out in this order were failure to conduct periodic social audit on the functioning of Fair Price Shops; not setting up Vigilance Committees at the Fair Price Shop level to enable monitoring the implementation of the NFSA at the grass‑root level; not maintaining data on NFSA beneficiaries under the Scheduled Caste (SC) and Scheduled Tribe (ST) categories. The relevant extract of the order is reproduced below:, Government of India Ministry of Consumer Affairs, Food & Public Distribution Department of Food & Public Distribution Room No. 275, Krishi Bhawan, New Delhi Dated: 17/06/2021 Secretary‑cum‑Commissioner, Food & Civil Supplies Department, Government of NCT of Delhi Subject: Non‑compliance of some provisions of the National Food Security Act, 2013 (NFSA) by Government of NCT of Delhi Dear Madam, You are aware that the National Food Security Act (NFSA) 2013 came into force on 5 July 2013. The Government of NCT of Delhi adopted the Act from October 2013. However, compliance of the following key provisions/sections of the Act remains pending in Delhi to date. (i) Non‑compliance of Section 12 of the Act: Section 12 of the NFSA states that the Central and State Government shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System that include (a) doorstep delivery of foodgrains to the Targeted Public Distribution System outlets (i.e., Fair Price Shops); (b) application of information and communication technology tools including end‑to‑end computerisation to ensure transparent recording of transactions at all levels and to prevent diversion; (c) leveraging Aadhaar for unique identification, with biometric information of entitled beneficiaries for proper targeting of benefits under this Act; (d) full transparency of records. By not operationalising ePoS devices at the Fair Price Shops, GNCTD is in violation of Section 12. Reforms under the Targeted Public Distribution System are mandated to promote transparency and rightful targeting. In this connection, this Department has been continuously pursuing the implementation of ePoS distribution of foodgrains from all Fair Price Shops of Delhi for the last three years. More than twelve letters/communications have been written to GNCTD from all levels in this Department. However, the distribution of foodgrains in Delhi is still being done using old/manual register‑based mechanisms. Further, this non‑compliance is also blocking the implementation of One Nation One Ration Card for numerous migrant beneficiaries of the National Capital. (ii) Non‑compliance of Section 28 of the Act: Section 28 states that every local authority or any other authority or body authorised by the State Government shall conduct or cause to be conducted periodic social audits on the functioning of Fair Price Shops, Targeted Public Distribution System and other welfare schemes, and cause its findings to be publicised and necessary action taken. GNCTD has not put in place any such machinery and no social audits are being conducted. (iii) Non‑compliance of Section 29 of the Act: Section 29 states that for ensuring transparency and proper functioning of the Targeted Public Distribution System and accountability of the functionaries, every State Government shall set up Vigilance Committees as specified in the Public Distribution System (Control) Order, 2001, made under the Essential Commodities Act, 1995, as amended, at the State, District, Block and Fair Price Shop levels consisting of persons as may be prescribed, giving due representation to local authorities, Scheduled Castes, Scheduled Tribes, women, destitute persons or persons with disability. GNCTD has not set up vigilance committees at the Fair Price Shop level, which is the most important level for monitoring implementation of the NFSA at the grass‑root level. (iv) Non‑compliance of Section 38 of the Act: Directions were issued to all State Governments under Section 38 to maintain data on NFSA beneficiaries under the Scheduled Caste and Scheduled Tribe categories. Since all ministries are mandated to allocate a certain proportion of their fund allocation towards SC/ST welfare, data on the same is now required to be maintained to ascertain that the benefits of the Act are reaching these vulnerable sections. It is very unfortunate that while other State Governments have assured that they would do the needful, GNCTD merely informed that the data was not available with them. Section 38 of the NFSA mandates that the Central Government may from time to time give directions to the State Governments as it may consider necessary for effective implementation of the provisions of the Act and the State Governments shall comply with such directions. The Government of Delhi in this case seems insensitive to the needs and rights of this vulnerable section of society and to ensure that the benefits mandated under the Act are reaching them. Hence, directives are hereby given under Section 38 that GNCTD shall take steps to fulfil the pending obligations of Section 12 immediately to enable transparent distribution of foodgrains (through ePoS) under both NFSA and PM‑GKAY to all NFSA beneficiaries in Delhi, including migrants through the One Nation One Ration Card plan. A compliance to this effect may be sent by 30 June 2021. Yours faithfully, Director (Public Distribution) Tel: 011‑23070429, The Department of Food and Public Distribution, vide a detailed order dated 22 June 2021 raised its concerns and communicated the shortcomings observed in the impugned scheme on Door‑Step/Home Delivery of Ration (wheat flour, rice and sugar) issued by the GNCTD under the Targeted Public Distribution System. The relevant extract of the communication is as follows: 1. Challenges observed in contravention of the statutory provisions of the NFSA: (i) Under the Act, foodgrains are distributed through the Targeted Public Distribution System, alike in all States/UTs, at highly subsidised Central Issue Prices of Rs 3, Rs 2 and Rs 1 per kg of rice, wheat and coarse grains respectively. However, the proposed scheme involves distribution of packaged food commodities wheat flour (Atta) instead of wheat and rice. (ii) The issue prices of the packaged Atta and rice are not mentioned in the GNCTD's notification dated 20 February 2021. It is not clear whether they will be distributed as per the Central Issue Prices and quantities contained in Schedule I of the Act or an additional amount will be charged from the beneficiaries. As the home delivery of packaged Atta and rice shall involve milling, processing, packing, additional transportation, vendor/delivery cost etc., it will naturally increase the per‑kg cost of the commodities and will have a direct financial implication on the poor NFSA beneficiaries/households, as it is expected that food security entitlements shall be cost more to beneficiaries than the Central Issue Prices under NFSA. (iii) As per NFSA rules, wheat flour (Atta) can only be distributed at a higher issue price (considering only the additional cost of milling) after taking proper consent of the NFSA beneficiaries, and the additional cost of milling per kg must be clearly mentioned over and above the CIP of wheat. Rice cannot be distributed at higher issue prices than the CIP under NFSA. It is not clear whether consent of NFSA beneficiaries has been obtained by the GNCTD in this aspect. (iv) Since NFSA beneficiaries have to exercise an option at the beginning of each financial year to either choose home delivery of packaged food commodities or lift their entitled foodgrains from Fair Price Shops, beneficiaries opting the new scheme shall be bound to receive only packaged food commodities (at higher prices) at the address mentioned in their ration card for the entire year. It is not clear whether they shall be allowed to opt out from the scheme anytime during the year if they no longer wish to stay dependent on home delivery and wish to lift their monthly foodgrains at NFSA Central Issue Prices from the Fair Price Shops. (v) There is no clarity on how the GNCTD shall maintain or update the addresses of beneficiaries in the Ration Card Management System to ensure uninterrupted home delivery of packaged commodities every month, even in case of change of address. Most poor beneficiaries and tenants keep changing their temporary accommodation, and it is not clear how GNCTD shall ensure continuous updating of their addresses in the system to ensure food‑security entitlements continue to reach their new doorsteps every month without interruption. (vi) It is also not clear how the GNCTD plans to manage and ensure the following activities having a direct impact on the performance of the scheme and thus food security of NFSA beneficiaries: (a) Ensure unrestricted reach of delivery vehicles/vans up to the doorsteps of beneficiaries, even in narrow streets, lanes, by‑lanes, etc.; delivery may be hindered in multi‑storey buildings. (b) Ensure coordination with beneficiaries, as most of them are daily wagers, labourers, household workers, MNREGA participants, etc., and timely delivery at fixed date/time may be hampered due to traffic congestion, breakdown of delivery vehicles, or absence of beneficiaries during the delivery window, impacting their food security compared to their freedom of choosing their own convenient date, time and cost of lifting foodgrains from nearby Fair Price Shops. (c) Ensure that the vehicle arrives in front of the beneficiary’s door to avoid issues of favouritism and nepotism. (d) Ensure biometric authentication of beneficiaries through ePoS devices during home delivery and maintain strong and stable internet connectivity even in shadow areas., Observations regarding administrative and financial aspects of Home Delivery: (i) There is no clarity whether the scheme is being started as a pilot in selected areas or being rolled out in the entire Delhi in one go; it is suggested to first start on a pilot basis. (ii) No clarity on type or tenure of delivery partner(s) contracting, i.e., annually or long‑term/multi‑year, as it will have direct impact on costs and continuity of food security of beneficiaries. (iii) What will be the amount of Earnest Money Deposit and Performance Bank Guarantee secured from the bidders (as per GFR 2017) to ensure performance of the delivery partners. (iv) Will there be a single contractor for the whole of Delhi or multiple contractors; how they will be made accountable under the NFSA? Engaging private parties/contractors and ad‑hoc delivery persons may not fully conform to the government ecosystem and charter of delivering government benefits/subsidies and may become counter‑productive for the existing foodgrain distribution system, where licensed Fair Price Shop dealers are fully accountable as per the provisions of the NFSA and the Public Distribution System (Control) Order, 2015. (v) The scheme may also face administrative and operational hurdles in terms of leakages, diversions, accountability issues, and assurance of timely availability of right quantity and quality of foodgrains to NFSA beneficiaries. (vi) Most importantly, how the GNCTD intends to ensure continuous online monitoring of delivery/distribution of food‑security entitlements, as it will be difficult in a scenario where the existing distribution process itself is not yet automated and integrated with the central online systems – the Annavitran Portal. In the absence of an institutionalised oversight mechanism this may also give rise to grievances, complaints and petitions in the courts., Concerns regarding implementation of One Nation One Ration Card for food security of migrant beneficiaries in Delhi: (i) It is not clear how the GNCTD plans to integrate its home delivery scheme with ONORC, i.e., how numerous street dwellers, rag‑pickers, migratory labourers, construction workers, rickshaw pullers, auto/taxi drivers, etc., who do not have any permanent address in Delhi will be given their monthly NFSA entitlements, as it may not be feasible to door‑deliver to them every month. Providing ration card portability benefits will be a major challenge under the doorstep delivery model due to address change and the Ration Card Management System being maintained in the respective home State/UTs. Most migrants as tenants keep changing their temporary accommodation; how the GNCTD shall provide food commodities at their new doorsteps every month, and what database of such persons is available with GNCTD and how they plan to address their food security through the home delivery scheme., Other concerns in the home delivery scheme: (i) For prevention of adulteration and diversion of food items by delivery vehicle operators, strong online systems are needed. (ii) Ensuring correctness of quantity/weight of pre‑packaged food items to be delivered to beneficiaries at their doorsteps may be a challenge; weighment on an electronic weighing scale fitted in a delivery vehicle may not always be accurate due to disturbance in calibration and vehicle movement. (iii) Food items loaded on delivery vehicles may be subjected to variable weather conditions such as rain, heat, mist, dust, pollution, humidity, resulting in wastage and spoiling of subsidised foodgrains. (iv) Absence of institutional grievance redressal oversight as per the provisions of the NFSA – vigilance committees (though not yet formed in Delhi) are meant for monitoring the functioning of Fair Price Shops but do not cover oversight of delivery vehicles/partners. (v) Independent State Food Commission (as per obligations of the State Government under NFSA) is also not existing in Delhi. (vi) The viability of Fair Price Shops will be adversely impacted by the proposed home delivery by GNCTD., Therefore, in view of the above observations and concerns, it is clarified that the proposal of GNCTD does not meet the statutory and functional requirements of the National Food Security Act and therefore cannot be accepted., Vide letter dated 08 October 2021, the Central Government, while making reference to the representation made by the petitioners to the Lieutenant Governor, informed the GNCTD that the Home Delivery Scheme/proposal was not permissible in its current form. The Central Government, in this communication, inter alia, states as follows: A copy of a letter from Delhi Sarkar i Ration Dealers’ Sangh (DSRDS) dated 07 October 2021 addressed to the Hon’ble Lieutenant Governor, GNCTD and copy endorsed to the Secretary (Food Public Distribution) which is a representation of DSRDS to the Hon’ble Lieutenant Governor to immediately stop implementation of the MMGGRY Scheme has been received. In the said letter, the apprehensions of DSRDS are that foodgrains are to be distributed to ration cardholders by a direct home delivery agency engaged by the successful bidder who shall also set up his privately owned Fair Price Shops. DSRDS find this scheme alleged to be formulated under NFSA 2013 is totally alien to the NFSA regime as it did not have the requisite sanction., This communication again directed the GNCTD to follow the norms and provisions of the NFSA, 2013 in rightful spirit and manner while distributing foodgrains to the eligible NFSA beneficiaries under the Targeted Public Distribution System and it is also conveyed that this Department will have no objection if a separate scheme is made by the State Government without mixing the elements of the NFSA foodgrains. It is therefore informed that all statutory provisions of the NFSA, 2013 are mandatory, and operation of the Targeted Public Distribution System as mandated shall be conducted in the manner prescribed under the NFSA to ensure transparency and rightful targeting. The alleged proposal under consideration with the Delhi Government for home delivery does not fulfil the norms of the NFSA and therefore is not permissible in its current form by the Government of India., Ms. Bhati submits that the GNCTD has been slow in implementing the Central Government scheme, One Nation One Ration Card. In this regard, she has drawn the attention of the Supreme Court to the judgment in Bandhua Mukti Morcha v Union of India & Ors, Suo Motu Writ Petition (Civil) No. 6 of 2020 decided on 29 June 2021, wherein it was observed as follows: “One Nation One Ration Card is a scheme implemented by the Government of India providing for nation‑wide portability of National Food Security Act ration card. Several States have been integrated under the One Nation One Ration Card cluster at the national level. In the affidavit, the Department of Expenditure, Ministry of Finance, has granted additional drawing permission to States for completing the One Nation One Ration Card system. One Nation One Ration Card is an important citizen‑centric reform. Its implementation ensures availability of ration to beneficiaries under the NFSA and other welfare schemes, especially to migrant workers and their families at any Fair Price Shop across the country. To ensure seamless inter‑State portability of the ration card, Aadhaar seeding of all ration cards as well as biometric authentication of beneficiaries through automation of all Fair Price Shops (AFPS) with installation of electronic Point of Sale (e‑POS) devices are necessary.”, As stated above, the Union of India, Department of Expenditure has permitted State‑wise additional borrowing for completion of the One Nation One Ration Card scheme. Shri Tushar Mehta, learned Solicitor General, submitted that four States have not yet implemented the One Nation One Ration Card scheme, namely Assam, Chhattisgarh, Delhi and West Bengal. Learned counsel appearing for Delhi submitted that the Government of NCT Delhi has implemented the One Nation One Ration Card scheme. Shri Tushar Mehta’s submission is that the Government of NCT Delhi has not implemented the scheme fully and only in one circle, Circle No. 63, Seemapuri, where only a handful of transactions with 42 ePoS machines have been done. The One Nation One Ration Card scheme is one of the important welfare measures to extend food security to migrants who are covered under the NFSA scheme. When migrant workers are spread throughout the country, each State has to implement the scheme, which is a necessary welfare measure towards food security for this class of persons. The States are duty bound to implement this scheme, which is a welfare scheme in the interest of poor and marginal sections of society. When a migrant labour reaches a particular State for work/employment and is covered by the NFSA scheme, the receiving State is under duty to ensure that his rights and entitlement under the NFSA is not denied merely because he is not in his native State from where he was issued the ration card., We are of the view that those States which have not yet implemented the One Nation One Ration Card scheme should implement the same. We direct the States which have not implemented the scheme to implement it no later than 31 July 2021., Ms. Bhatti concluded her submissions by submitting that the impugned tenders/schemes floated by GNCTD are in contravention of the mandate of the NFSA 2013. Her submission is that the GNCTD cannot tinker with the architecture of the Public Distribution System created under the Essential Commodities Act, and adopted under the NFSA and the Targeted Public Distribution System Order, 2015. The Fair Price Shops are at the centre, and are the nodal points for distribution of foodgrains to the beneficiaries under the Targeted Public Distribution System. They are the interface between the State and the beneficiaries. The GNCTD, rather than adopting the existing architecture of the Targeted Public Distribution System, is seeking to create a parallel system, which is alien to the existing Targeted Public Distribution System, which is statutorily created. This is being done on the premise that the existing Targeted Public Distribution System through the Fair Price Shops has lacunae and malpractices prevalent. However, the GNCTD has not taken the steps to maintain vigilance, monitor and keep a check on the Targeted Public Distribution System through the Fair Price Shops, which would stop the malpractices and remove lacunae in the existing system. She submits that the GNCTD is only seeking to replace the existing Fair Price Shops with another set of persons who would be recognized as Fair Price Shop owners, which is not the solution to the problems pointed out by it, and is also not permissible under the existing statutory regime., She submits that the NFSA does not allow interference with the existing Targeted Public Distribution System. The GNCTD is in non‑compliance of making ePoS operational at Fair Price Shops, which forms an integral part of the Targeted Public Distribution System to ensure that direct benefits reach the beneficiaries. It is the obligation of the State Government to ensure viability of Fair Price Shops. The beneficiaries who are migrant wage‑earners, who are otherwise able to share their allocated entitlements under the NFSA with their families staying in their home State, will be losers under the impugned scheme of the GNCTD. The Central Government introduced biometric‑enabled ePoS to ensure delivery of essential commodities to the beneficiaries through Fair Price Shops as envisaged under the Act. The right‑based approach was introduced under the NFSA in 2013, which should be implemented by the States. The scheme under the NFSA is not a commercial venture and is funded by exchequer money. The architecture of the NFSA has to be preserved and implemented in its letter and spirit, to ensure accountability, targeted delivery and welfare‑based approach.
id_47	3	The data with respect to the distribution of the foodgrains have to be collected, maintained, shared and audited regularly. The State Governments are at liberty to provide any other welfare based entitlements, without disturbing or destroying the mandate of the National Food Security Act. The State Government, in view of the orders passed by the Central Government from time to time, may remove the operational irregularities, and strengthen the Targeted Public Distribution System by complying with the architecture of the Scheme envisaged under the National Food Security Act and other prevailing Orders and Rules., Learned Counsel D. P. Singh, who appeared for the Honourable Lieutenant Governor, pointed out several communications exchanged between the Lieutenant Governor and the Council of Ministers headed by the Chief Minister, with regard to the impugned scheme of home delivery of foodgrains to the beneficiaries under the Targeted Public Distribution System., Vide noting dated 20.03.2018, the Lieutenant Governor flagged the issue raised by the Finance Department, that replacing one set of human intervention with another i.e. service providers and their agents, may not eliminate the diversion of ration materials and corruption. The Lieutenant Governor proposed the adoption of the Direct Benefit Transfer (DBT), where the money would be directly transferred to the bank account of the beneficiary, thereby totally eliminating the middlemen and making available funds to provide higher benefits to the beneficiaries., Reference was made to the letter dated 01.02.2018 issued by the Central Government, which provides for home delivery of rations only as a special dispensation for a category of beneficiaries who are above 65 years of age, are differently‑abled, or have no other adult family members listed in the ration cards, and are not in a position to visit Fair Price Shops themselves. The Lieutenant Governor advised the Government of National Capital Territory of Delhi to ensure compliance of the Targeted Public Distribution System Order, 2015, the National Food Security Act and the directions under Section 38 of the National Food Security Act contained in the letter dated 12.08.2018 issued by the Government of India, before taking a final decision with respect to the home delivery of ration under the Targeted Public Distribution System., In this context, the Finance Department has observed that the proposed system of home delivery of ration will only replace one set of human intervention with the other i.e. service providers and their agents. Hence, diversion of ration material and corruption may not be eliminated under the proposed scheme. The best option would be adoption of the Direct Benefit Transfer (DBT), where the money would be directly transferred to the bank account of the beneficiary, thus totally eliminating middlemen. The Finance Department has also noted that an expenditure of about Rs. 2.50 Crores per annum is likely to be incurred on the home delivery scheme, and if DBT is adopted, the beneficiaries can procure an additional 5 kg of Atta per family per month, with the money so saved. For the poor marginalized sections of the society, this additional 5 kg of Atta per family per month would be a huge welfare measure resulting from adoption of DBT. Therefore, in my view, the suggestion of the Finance Department is worth considering., Therefore, I would advise that the proposal of home delivery of ration under the Targeted Public Distribution System may be referred to the Government of India with full details including all implementation issues, before a final decision is taken., Since he did not agree with the proposal of the Council of Ministers, vide office noting dated 02.06.2021, the Lieutenant Governor advised the Council of Ministers to place the proposal of home delivery of ration before the Government of India for approval in accordance with Section 12(2)(h) of the relevant legislation., Subsequently, the Council of Ministers headed by the Chief Minister, in its note dated 17.06.2021, observed that there appears to be a serious misunderstanding, and claimed that the instant matter before the Honourable Lieutenant Governor is not approval of the scheme of doorstep delivery of ration. The Scheme has already attained finality., The Lieutenant Governor, in its noting dated 24.06.2021, referred to the letter dated 22.06.2021 issued by the Department of Food & Public Distribution, Ministry of Consumer Affairs, Food and Public Distribution, Government of India, and advised the Government of National Capital Territory of Delhi to comply with the directions issued by the Central Government, wherein it has been specifically stated that the proposed scheme has not been accepted by the Ministry as it does not meet the statutory and functional requirements of the National Food Security Act., By noting dated 26.07.2021, the Lieutenant Governor, while making reference to the abovementioned noting dated 24.06.2021, clarified that the observation made therein was only a conciliatory advice in sync with the observations made by the Supreme Court of India in the judgment of State (NCT of Delhi) v. Union of India and Anr. (2018) 8 SCC 501, wherein it was emphasized that there is a need of discussion and deliberation, and fine nuances are to be dwelled upon with mutual respect., The Lieutenant Governor stated that vide the directions contained in the letter dated 22.06.2021 – under Section 38 of the National Food Security Act, 2013, the Central Government has already conveyed its concerns and decision with respect to the proposed Scheme of Doorstep Delivery of Ration to the Government of National Capital Territory of Delhi. He further directed that the matter be reconsidered by the Council of Ministers in accordance with Rule 49 of the Transaction of Business Rules, 1993 (TBR), read with Section 45(c) of the Government of National Capital Territory of Delhi Act, 1991, since the Council has not considered the letter dated 22.06.2021 of the Central Government., Mr. D. P. Singh thus submits that the Council of Ministers has not complied with the mandate of Article 239AA of the Constitution, as well as Section 44 of the Government of National Capital Territory of Delhi Act, 1991, by referring the issue/scheme with regard to door‑to‑door delivery of ration and under the Targeted Public Distribution System to the President, despite there being a difference of opinion between the Lieutenant Governor and his Ministers. Without resolving the difference of opinion, as aforesaid, the Government of National Capital Territory of Delhi could not have proceeded to implement the door‑to‑door delivery scheme, while interfering with the architecture to implement the Targeted Public Distribution System under the National Food Security Act. Thus, the actions of the Government of National Capital Territory of Delhi are illegal and unconstitutional. Mr. Singh concluded his submissions by stating that there is no response till date to the aforementioned noting from the Council of Ministers. The Scheme is a unilateral measure of the Honourable Chief Minister, without concurrence of the Council of Ministers. He further submitted that the State should conform with the existing Central law which is the National Food Security Act, 2013., Mr. Talha Abdul Rahman appeared for the applicant Bandhua Mukti Morcha (Bonded Labour Liberation Front), a Non‑Governmental Organization, who have sought the following prayers in their application: A. Allow the present impleadment application; B. Direct the Respondent No.1 to immediately implement the Door to Door Ration Delivery Scheme of the Government of National Capital Territory of Delhi to such persons who opt for the same, subject to outcome of the present proceedings; C. Alternatively to Prayer B, direct immediate implementation of the Door to Door Ration Delivery Scheme of the Government of National Capital Territory of Delhi in accordance with the Central Government's instructions contained in Letter dated 01.02.2018 (File No. 5(3)/2017 PD) (Annexure A‑14) issued by the Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution, Krishi Bhawan, New Delhi to home deliver SFAs to those who are unable to visit Fair Price Shops., The case of the Applicant is that they have been engaged in distributing food both in cooked and raw form, including dry ration in Delhi and other states, in an attempt to ensure that the poor and marginalized people, including migrant and unorganized sector labourers, are not subjected to starvation amid the prevailing pandemic situation across the country. Since, due to the closure of schools, mid‑meals or dry ration could not reach the beneficiaries, it becomes obligatory for the State authorities to ensure that the rations reach the beneficiaries., Mr. Rahman referred to the order dated 20.08.2001, passed by the Supreme Court in People's Union for Civil Liberties (PDS matters) v. Union of India and Ors., (2013) 2 SCC 688. The Supreme Court observed that prevention of hunger and starvation among the destitute and weaker sections of society is one of the prime responsibilities of the Government whether Central or State. The mere existence of schemes without implementation are of no use, and food must reach the hungry. Similar view was reiterated by the Supreme Court in the order dated 02.05.2003. The relevant extract of the order dated 02.05.2003, relied upon by the counsel, is reproduced hereinbelow: \The anxiety of the Court is to see that the poor and the destitute and the weaker sections of the society do not suffer from hunger and starvation. The prevention of the same is one of the prime responsibilities of the Government – whether Central or State. Mere schemes without any implementation are of no use. What is important is that the food must reach the hungry.\, Mr. Rahman also placed reliance on the order passed by the Supreme Court in the case of Swaraj Abhiyan v. Union of India and Ors. (2016) 7 SCC 498, wherein the Court directed the State Governments to take proactive measures to ensure that food was made available to the drought‑affected areas, without being made conditional on possession of ration cards. The relevant paragraphs from the judgment are reproduced hereinunder: \Similarly, the entitlement of food grains at 5 kg per person per month (as per the National Food Security Act) is a goal that must be achieved by the State at the earliest, particularly in drought‑affected areas. Whether there is a statute or not, and whether there is implementation or non‑implementation of a law enacted by Parliament, the State ought to appreciate and realise that an adequate supply of food grains must be made available without much fuss to people in drought‑affected areas. Because of the drought such persons undergo immense hardship beyond their control and if there is a scarcity of food, it would only add to their misery and adversity. The State, being a welfare State, must take these factors into consideration and strain every nerve to ensure that the mandate of the National Food Security Act is adhered to.\, Mr. Rahman further submitted that time and again, it has been recognized by the Supreme Court that it is the obligation of the State Government to ensure that the food reaches the beneficiaries. Mere delivery of the food to the Public Distribution System network of Fair Price Shop licensees does not amount to compliance of the obligations of the State authorities to guarantee adequate food and nutrition under Article 21 and Article 47 of the Constitution of India. He submitted that the doorstep delivery of the ration at the beneficiaries' doorstep will effectively fulfill the said obligation., It was contended by the Applicant that standing in a queue for taking ration violates the right of dignity of a person. Requiring a person to stand in queue at the ration shop for receiving, what the law regards as his or her entitlement, is against the right to dignity and privacy and compels a poor person to necessarily queue up. Mr. Rahman placed reliance on Jeeja Ghosh v. Union of India, (2016) 7 SCC 761, wherein the Supreme Court made observations for protection of the Right to human dignity, as a part of the constitutional value enshrined in Article 21. The relevant extract of the judgment is reproduced hereinbelow: \The rights that are guaranteed to differently‑abled persons under the 1995 Act are founded on the sound principle of human dignity which is the core value of human right and is treated as a significant facet of right to life and liberty. Such a right, now treated as a human right of the persons who are disabled, has its roots in Article 21 of the Constitution. We have a written Constitution which guarantees human rights that are contained in Part III with the caption Fundamental Rights. One such right enshrined in Article 21 is right to life and liberty. Right to life is given a purposeful meaning by this Court to include right to live with dignity. It is the purposive interpretation which has been adopted by this Court to give a content of the right to human dignity as the fulfilment of the constitutional value enshrined in Article 21.\, Mr. Rahman, to advance his aforesaid submission, placed reliance on the judgment rendered by the Constitution Bench of the Supreme Court in K.S. Puttaswamy (Aadhaar) v. Union of India, (2019) 1 SCC 1., Mr. Rahman concluded his submission by stating that the doorstep delivery of ration is a statutory mandate under the National Food Security Act, and various judicial orders passed from time to time have obligated the State governments to ensure that the food does, in fact, reach those who are hungry. In fact, the Central Government has itself directed home delivery of ration to some categories., We may now take note of the submissions advanced by Dr. Abhishek Manu Singhvi, Senior Advocate on behalf of the Government of National Capital Territory of Delhi in defense of the impugned Scheme; the impugned tenders/NIBs, and the actions taken by the Government of National Capital Territory of Delhi in relation thereto., Dr. Singhvi submits that the impugned Scheme and the Tenders/NIBs floated by the Government of National Capital Territory of Delhi, in no manner, endeavour to bypass the distribution of ration through the Fair Price Shops. He submits that the impugned scheme and NIBs contemplate that there would be new Fair Price Shops licensed under the ECA across various districts in Delhi at the Circle Level. The Scheme is a welfare measure, as envisaged under Section 32(2) of the National Food Security Act, which the States are competent to frame in terms of the judgment in Swaraj Abhiyan (supra). The relevant extract of the judgment relied upon by him states: \It is made clear that each State before us is fully entitled to provide any foodgrains or other items over and above and in addition to the entitlement of a household under the National Food Security Act. There is no restriction in this regard.\, Dr. Singhvi has primarily argued that in the absence of an express or implied prohibition against the doorstep delivery of rations to the beneficiaries under the National Food Security Act, the proposed scheme cannot be objected to either by the Petitioners, the Central Government, or the Lieutenant Governor. It cannot be said that the said doorstep delivery scheme violates the existing Targeted Public Distribution System regime. The impugned Scheme aims to ensure delivery of the entitled foodgrains, packaged (4 kg of wheat (Wheat Flour (Chakki) Atta (WFA)) and 1 kg of rice per person per month for priority households, and 35 kg per household for Antyodaya Anna Yojana, and sugar, provided by the State Government from its own resources to the beneficiaries at their doorstep under the National Food Security Act. The impugned Scheme is optional. The identified beneficiaries under the Targeted Public Distribution System, at the beginning of every financial year, shall have an option to either opt‑in or opt‑out from the door‑to‑door delivery of packed ration under the impugned Scheme, i.e., to have their entitlements packed and delivered at their doorsteps, or continue to take the ration from the Fair Price Shops. Those who do not opt for home delivery, by failing to register themselves for delivery through Fair Price Shops, shall be covered by the home delivery scheme., Dr. Singhvi referred to the operational guidelines of the scheme to submit that the impugned scheme is in consonance with the provisions of the National Food Security Act. The impugned Scheme has two stages: Stage 1 – pick‑up/transportation of wheat/rice from the godowns of the Food Corporation of India; its processing i.e. conversion into wheat flour/atta at dedicated milling units and cleaning of rice; packaging of wheat flour/atta and rice in different sizes as per requirement; and delivery of the wheat flour/atta and rice packets to the designated Fair Price Shops as per delivery schedule. Stage 2 – doorstep delivery of the entitlements by the Fair Price Shop appointed, at the doorstep of the beneficiaries. Respondent No. 3 DCCWS is the monitoring agency, which is entrusted with the task of setting up Fair Price Shops across various districts in Delhi, and one in each of the 70 Circles. Respondent No. 3 will empanel DHD Agencies, which shall collect the packets from the Fair Price Shops and deliver the same to the doorstep of the beneficiary. The delivery shall be authenticated via an electronic Point of Sale device on the basis of biometric authentication., Dr. Singhvi submitted that the Supreme Court of India cannot enjoin the performance of its statutory obligation by the State. He submits that far from being contrary to the provisions of the National Food Security Act or the Targeted Public Distribution System Order, the scheme of the Government of National Capital Territory of Delhi seeks to achieve the full implementation of the Targeted Public Distribution System by ensuring delivery of the foodgrains/Atta at the doorstep of the beneficiary., Dr. Singhvi further referred to the letter dated 03.11.2014, issued by the Central Government to all States to provide Wheat Flour (atta) in place of wheat grain through the Targeted Public Distribution System under the National Food Security Act at the option of beneficiaries. The State/UT may raise the end retail price of wheat from Rs. 2 per kg stipulated for wheat, and the cost incurred on conversion of wheat into wheat flour may be recovered from the eligible households under the National Food Security Act, i.e., priority households and Antyodaya Anna Yojana households. The relevant extract from the communication states: \In light of the issue raised by States/UTs during the conferences, the matter has been re‑examined by the Department in consultation with the Ministry of Law & Justice. It is intended that States/UTs may distribute wheat flour (atta) through the network of Fair Price Shops to the eligible Targeted Public Distribution System beneficiaries under the National Food Security Act, 2013, subject to the following terms and conditions: (a) States/UTs may distribute wheat flour (atta) to priority households at 5 kg per person per month and to Antyodaya Anna Yojana households at 35 kg per household per month after adjusting the loss occurring during the process of converting wheat into wheat flour (atta). (b) States/UTs may provide wheat flour (atta) in lieu of the entitled quantity under the National Food Security Act, 2013, provided that the proportion of wheat flour (atta) derived from wheat is determined by the State Governments/UT Administrations so that maximum quantity of wheat flour (atta) is obtained from the wheat issued to flour mills for this purpose. (c) States/UTs may raise the end retail price of wheat flour (atta) from Rs. 2 per kg stipulated for wheat under the National Food Security Act, 2013, to cover the cost of conversion of wheat into wheat flour (atta) and recover the same from the eligible households, i.e., priority households and Antyodaya Anna Yojana households. While recovering the cost of conversion, the States/UTs shall keep in mind that the additional cost being charged is limited to the actual cost of conversion. (d) State Governments/UT Administrations shall distribute wheat or wheat flour (atta) at the option of the beneficiaries.\, Vide another letter dated 17.01.2008, after taking note of requests made by various States to distribute wheat products such as wheat flour and suji, instead of wheat grains, in specific areas, and orders passed by the Supreme Court, the Central Government directed all States to take up distribution of wheat flour through the network of Fair Price Shops to AAY, BPL and APL categories of card holders under the Targeted Public Distribution System, subject to specified terms and conditions. The terms and conditions are reproduced herein: (a) Distribution of wheat products other than wheat flour such as suji, maida, rawa etc. will not be permissible from the allocations of wheat made by the Department of Food and Public Distribution, Government of India under the Targeted Public Distribution System. (b) The wheat flour to be distributed to ration card holders shall conform to all quality standards/specifications of whole wheat atta prescribed under the Prevention of Food Adulteration Rules, 1955. The State/UT Governments shall put in place adequate safeguards to ensure that the quality of wheat flour issued to card holders is as per the standards/specifications prescribed under the PFA Rules, 1955. (c) From commencement of this policy and thereafter, at the beginning of every financial year, State/UT Governments should assess the requirement of wheat flour in their State/UT based on options, if any, to be exercised by the ration card holders under the Targeted Public Distribution System. However, this requirement of wheat and wheat flour would be limited to the monthly allocation of wheat to the concerned State/UT under the Targeted Public Distribution System. (d) The State/UT Governments should distribute wheat flour in quantities equal to about half of the monthly allocations of wheat to ration card holders under the Targeted Public Distribution System from March 2008 onwards, particularly in areas where evaluation studies have shown high levels of diversion/leakages of foodgrains and where it would be more convenient for the ration card holder families to get delivery of the wheat flour. (e) The wheat flour should be properly packaged in suitable quantities. (f) The ratio of whole wheat flour to whole wheat should be fixed by the State/UT Governments appropriately so that maximum quantity of wheat flour is obtained from the whole wheat issued to flour mills for this purpose. (g) Expenses on milling/grinding of whole wheat, packaging and transportation of whole wheat to mills of wheat flour, and from the mills to distribution centres, should be borne by the State/UT Governments or adjusted suitably in the quantity/issue price of wheat flour so that no additional burden is passed on to the targeted Antyodaya Anna Yojana, BPL and APL ration card holder families. (h) The State/UT Governments should ensure that no unreasonable monetary advantage is allowed to flour mills in the process. (i) For distribution of wheat flour instead of whole wheat to eligible ration card holders under the Targeted Public Distribution System, it will not be necessary for State/UT Governments to obtain specific permission or prior concurrence of the Government of India. However, the quantum of wheat flour distributed under the Targeted Public Distribution System will be reported every month to the Government of India. (j) The quantity of unlifted wheat flour/atta in Fair Price Shops, if any, during a month may not be disposed of in the open market but carried forward to the next month for distribution subject to it retaining the required quality, and the wheat allocation to RFMs/chakki mills for conversion into wheat flour for the next month will be proportionately reduced by the State/UT Government authorities. (k) The State/UT Governments or their agencies will not make any profit in implementation of the scheme. (l) The distribution of wheat flour/atta through Public Distribution System outlets will be made as per provisions of the PDS (Control) Order, 2001 and any violation of the Order will result in imposition of penalties under the Essential Commodities Act, 1955. (m) Based on assessment of the State/UT Governments, distribution of fortified wheat flour may also be taken up in selected areas or for selected categories of ration card holders, or for all categories, for improving the nutritional standard of the families covered. (n) Distribution of wheat flour to the targeted families under the Targeted Public Distribution System as per the terms and conditions specified above shall be the sole responsibility of the concerned State/UT Governments, which shall ensure proper implementation and regular monitoring of the scheme and ensure that there is no diversion of Targeted Public Distribution System wheat flour to the open market., Dr. Singhvi submitted that these steps were an innovative/progressive reform and promoted good governance. He submits that there is no prohibition in the National Food Security Act against conversion of wheat grain to wheat flour. Similarly, delivery at the doorstep of the beneficiary is not prohibited under the National Food Security Act, and is another measure of good governance., Dr. Singhvi referred to another letter dated 01.02.2018 issued by the Central Government, proposing to put in place a special dispensation of foodgrains to the beneficiaries recognized under the National Food Security Act, such as persons above 65 years of age; differently‑abled and families who have no adult member listed in the ration card and are not in a position to visit Fair Price Shops. They would be covered under the special dispensation. Those beneficiaries who have applied for special dispensation would be regularly supplied foodgrains at the doorstep by authorized nominees, by applying to the Ration Card issuing authority along with details and Aadhaar number of their nominee. He submitted that the aforesaid letter was addressed to all States and Union Territories, encouraging them to adopt the special dispensation to such identified beneficiaries under the National Food Security Act. Dr. Singhvi submitted that there is no embargo in adopting the said model for all the Targeted Public Distribution System beneficiaries. Dr. Singhvi placed reliance on S. No. 2 and 3(b)(i) of the said letter dated 01.02.2018. The relevant extract of the letter is reproduced hereinbelow: \2. However, some media reports appearing recently suggest that some beneficiaries experience difficulty in getting their entitled quantum of subsidised foodgrains because of their inability to visit the Fair Price Shop for reasons such as old age, physical disability etc. 3. The matter of distribution of entitled quantity of food grains to such beneficiaries has been under the consideration of the Government of India. After careful examination of the matter, it is proposed to put in place the following special dispensation for such beneficiaries: (a) NFSA beneficiaries who are above sixty‑five years of age, or who are differently‑abled, and have no other adult family member (16 to 65 years) listed in the ration card, and are not in a position to visit the Fair Price Shop themselves, would be eligible to be covered under the special dispensation. (b) State/UT Government may consider adopting any of the approaches mentioned below to ensure regular supply of foodgrains to beneficiaries under such special dispensation: (i) Home delivery of the entitled quota of foodgrains: State may devise the procedure for supply of foodgrains at the doorstep of such beneficiaries without adding any additional cost to the beneficiaries. A few states like Odisha have adopted this mode for distribution of foodgrains. (ii) Delivery through authorized nominees of such beneficiaries: Such beneficiaries should apply for special dispensation to the authority issuing ration cards along with details and Aadhaar number of their nominee for receiving the entitled foodgrains on their behalf. Such nominee must fulfil the following conditions: The nominee must be an NFSA beneficiary tagged to the same Fair Price Shop. Foodgrains should be issued to the nominee only after proper authentication/identification as in case of any other NFSA beneficiary. Fair Price Shop dealer or his/her family members cannot be authorized as a nominee. (iii) After approval, the nominee may be added in the ration card of such beneficiary and would be entitled to receive the ration of such beneficiary on his/her behalf. (iv) Vigilance Committee(s) may also be advised to identify and recommend such beneficiaries to be covered under special dispensation to the concerned District Supply Officer.\, Dr. Singhvi submits that vide the letter dated 10.03.2018, the approval given by the Council of Ministers of the Government of National Capital Territory of Delhi to the proposal for Home Delivery of Ration under the Targeted Public Distribution System, in the Cabinet Decision No. 2561 dated 06.03.2018, was communicated to the Lieutenant Governor. The Lieutenant Governor, vide noting dated 20.03.2018, advised the Government of National Capital Territory of Delhi to refer the said proposal to the Central Government before taking any final decision., Dr. Singhvi further referred to the letter dated 04.02.2019 issued by the Government of National Capital Territory of Delhi, addressing the loopholes in the electronic Point of Sale distribution system experienced during the trial run of the e‑PoS system from January 2018 to March 2018. The letter recorded the shortcomings/irregularities identified, viz. multiple OTPs being generated on a single mobile number, fake ration cards issued, biometric authentication failure, poor internet connection, etc. Due to these shortcomings of the e‑PoS distribution system, the Government of National Capital Territory of Delhi set up a plan for Doorstep Delivery of Ration., Dr. Singhvi submitted that the impugned Scheme has already been notified on 20.02.2021. The Legislative Assembly of the National Capital Territory has the power to make laws on all subjects under List II and List III, except on three subjects i.e. Police, Public Order and Land. The Government of National Capital Territory of Delhi is competent to create and implement the Doorstep Delivery of Ration Scheme, which is not one of the excepted subjects. The Lieutenant Governor is ordinarily required to act on aid and advice of the Council of Ministers, and if the Lieutenant Governor does not act on the aid and advice of the Council of Ministers, then the matter shall be referred to the President of India. In the present matter, the Lieutenant Governor did not make any reference to the President of India, and merely placed the matter for reconsideration before the Council of Ministers.
id_47	4	This power cannot be exercised mechanically, but only in exceptional circumstances and keeping in view the principles of constitutional trust and morality. Dr. Singhvi submits that the Government of National Capital Territory of Delhi (Amendment) Act, 2021 came to be notified on 27.04.2021. The provisions of the GNCT (Amendment) Act, 2021 cannot be applied to the Scheme retrospectively. Dr. Singhvi relied upon the following extract from the judgment of the Supreme Court of India in State (NCT of Delhi)., In the light of the contemporary issues, the purposive method has gained importance over the literal approach and the constitutional courts, with the vision to realise the true and ultimate purpose of the Constitution not only in letter but also in spirit and armed with the tools of ingenuity and creativity, must not shy away from performing this foremost duty to achieve constitutional functionalism by adopting a pragmatic approach. It is, in a way, exposition of judicial sensibility to the functionalism of the Constitution which we call constitutional pragmatism. The spirit and conscience of the Constitution should not be lost in grammar and the popular will of the people which has its legitimacy in a democratic set‑up cannot be allowed to lose its purpose in simple semantics., With the insertion of Article 239‑AA by virtue of the Sixty‑ninth Amendment, Parliament envisaged a representative form of Government for the National Capital Territory of Delhi. The provision intends to provide for the Capital a directly elected Legislative Assembly which shall have legislative powers over matters falling within the State List and the Concurrent List, barring those excepted, and a mandate upon the Lieutenant Governor to act on the aid and advice of the Council of Ministers except when he decides to refer the matter to the President for final decision., The interpretative dissection of Article 239‑AA(3)(a) reveals that Parliament has the power to make laws for the National Capital Territory of Delhi with respect to any matters enumerated in the State List and the Concurrent List. At the same time, the Legislative Assembly of Delhi also has the power to make laws over all those subjects which figure in the Concurrent List and all, but three excluded subjects, in the State List., The meaning of aid and advice employed in Article 239‑AA(4) has to be construed to mean that the Lieutenant Governor of the National Capital Territory of Delhi is bound by the aid and advice of the Council of Ministers and this position holds true so long as the Lieutenant Governor does not exercise his power under the proviso to clause (4) of Article 239‑AA. The Lieutenant Governor has not been entrusted with any independent decision‑making power. He has to either act on the aid and advice of the Council of Ministers or he is bound to implement the decision taken by the President on a reference being made by him., The words any matter employed in the proviso to clause (4) of Article 239‑AA cannot be inferred to mean every matter. The power of the Lieutenant Governor under the said proviso represents the exception and not the general rule which has to be exercised in exceptional circumstances by the Lieutenant Governor keeping in mind the standards of constitutional trust and morality, the principle of collaborative federalism and constitutional balance, the concept of constitutional governance and objectivity and the nurtured and cultivated idea of respect for a representative Government. The Lieutenant Governor should not act in a mechanical manner without due application of mind so as to refer every decision of the Council of Ministers to the President., The difference of opinion between the Lieutenant Governor and the Council of Ministers should have a sound rationale and there should not be exposition of the phenomenon of an obstructionist but reflection of the philosophy of affirmative constructionism and profound sagacity and judiciousness., A significant aspect of the Rules is that on matters which fall within the ambit of the executive functions of the Government of the National Capital Territory, decision‑making is by the Government comprised of the Council of Ministers with the Chief Minister at its head. The role of the Lieutenant Governor is evinced by the duty which is cast upon the Government to keep him duly apprised on matters relating to the administration of the Union Territory. On matters of executive business which lie within the constitutional functions assigned to the executive Government of the NCT, such a role is elaborated in the functions assigned to the Lieutenant Governor under Rule 24. Rule 24 deals with an eventuality when the Lieutenant Governor may be of the opinion that any further action should be taken or that action should be taken otherwise than in accordance with an order which has been passed by a Minister. In such a case, the Lieutenant Governor does not take his own decision. He has to refer the proposal or matter to the Council of Ministers for consideration. Under Rule 25, the Lieutenant Governor may require the Council to consider a matter on which a decision has been taken by a Minister but which has not been considered by the Council. Rule 23 enunciates matters which have to be submitted to the Lieutenant Governor before issuing any orders thereon. If the Lieutenant Governor disagrees with a decision or proposal, recourse has to be taken to the procedure which has been enunciated in Rules 49, 50 and 51. If there is a difference of opinion, the Lieutenant Governor must refer it to the Union Government after following the procedure which has been laid down. After the decision of the President has been communicated, the Lieutenant Governor must follow that decision and implement it. In other words, the Lieutenant Governor has not been conferred with the authority to take a decision independent of and at variance with the aid and advice which is tendered to him by the Council of Ministers. If he differs with the aid and advice, the Lieutenant Governor must refer the matter to the Union Government (after attempts at resolution with the Minister or Council of Ministers have not yielded a solution). After a decision of the President on a matter in difference is communicated, the Lieutenant Governor must abide by that decision. This principle governs those areas which properly lie within the ambit and purview of the executive functions assigned to the Government of the National Capital Territory. Matters under Section 41 which fall under the discretion of the Lieutenant Governor stand at a different footing. The Lieutenant Governor may be required to act in his discretion where a matter falls outside the powers conferred on the Legislative Assembly but in respect of which powers or functions have been delegated to him by the President. The Lieutenant Governor may also be required to act in his discretion under a specific provision of law or where he exercises judicial or quasi‑judicial functions. Matters pertaining to public order, police and land lie outside the ambit of the legislative powers of the Assembly and hence are outside the executive functions of the Government of the NCT. These are matters where the Lieutenant Governor would act in the exercise of his functions at his discretion if and to the extent that there has been a delegation or entrustment by the President to him under Article 239 of the Constitution. Hence, a distinction exists between matters which lie within the domain of the legislative powers of the Assembly and of the executive powers of the NCT Government, and those which lie outside. On the former, the Lieutenant Governor must abide by the aid and advice tendered by the Council of Ministers and, in the event of a difference of opinion, refer the matter to the President for decision. In matters which lie outside the legislative powers of the Legislative Assembly, the Lieutenant Governor has to act in accordance with the entrustment or delegation that has been made to him by the President under Article 239., While it may not be possible to make an exhaustive catalogue of those differences which may be referred to the President by the Lieutenant Governor, it must be emphasised that a difference within the meaning of the proviso cannot be a contrived difference. If the expression any matter were to be read as every matter, it would lead to the President assuming administration of every aspect of the affairs of the Union Territory, thereby resulting in the negation of the constitutional structure adopted for the governance of Delhi., Before the Lieutenant Governor decides to make a reference to the President under the proviso to Article 239‑AA(4), the course of action mandated in the Transaction of Business Rules must be followed. The Lieutenant Governor must, by a process of dialogue and discussion, seek to resolve any difference of opinion with a Minister and if it is not possible to have it so resolved to attempt it through the Council of Ministers. A reference to the President is contemplated by the Rules only when the above modalities fail to yield a solution, when the matter may be escalated to the President., In a Cabinet form of Government, the substantive power of decision‑making vests in the Council of Ministers with the Chief Minister as its head. The aid and advice provision contained in the substantive part of Article 239‑AA(4) recognises this principle. When the Lieutenant Governor acts on the basis of the aid and advice of the Council of Ministers, this recognises that real decision‑making authority in a democratic form of Government vests in the executive. Even when the Lieutenant Governor makes a reference to the President under the terms of the proviso, he has to abide by the decision which is arrived at by the President. The Lieutenant Governor has, however, been authorised to take immediate action in the meantime where emergent circumstances so require. The provisions of Article 239‑AA(4) indicate that the Lieutenant Governor must either act on the basis of aid and advice or, where he has reason to refer the matter to the President, abide by the decision communicated by the President. There is no independent authority vested in the Lieutenant Governor to take decisions (save and except on matters where he exercises his discretion as a judicial or quasi‑judicial authority under any law or has been entrusted with powers by the President under Article 239 on matters which lie outside the competence of the Government of the NCT)., Pursuant to notification of the impugned Scheme, the Central Government raised objections to the same vide letter dated 19.03.2021 as taken note of hereinabove. Dr. Singhvi submitted that the objections were limited to nomenclature of the impugned scheme. Dr. Singhvi further submitted that the objection to nomenclature of the Scheme was rectified by the Cabinet Decision No. 2987 dated 24.03.2021, issued by the Government of National Capital Territory of Delhi, and it deleted the name as MMMGRY, while maintaining the essential features of the scheme., Vide communication dated 15.06.2021, addressed to the Central Government, the Government of National Capital Territory of Delhi responded to the letter dated 19.03.2021 issued by the Central Government, and stated that the nomenclature for the scheme is withdrawn. It further recorded that, with the approval of the Council of Ministers, it will continue with the implementation of the impugned scheme for home delivery of National Food Security Act commodities, in accordance with the provisions of the National Food Security Act 2013 and Targeted Public Distribution System. The Government of National Capital Territory of Delhi further clarified that the existing Fair Price Shops will not be closed after implementation of the impugned home delivery scheme. The Door Step Delivery scheme is in pursuance of the spirit of letter dated 01.02.2018 issued by the Central Government. The scheme is optional in nature, and the people may opt for either home delivery of ration, or they may take ration from Fair Price Shops. Both systems would continue to work. One Nation One Ration Card will be implemented in all circles through the existing Fair Price Shops. The implementation of One Nation One Ration Card on a pilot basis has already been commenced. The relevant extract of the said communication is reproduced hereinbelow:, The Department of Food & Public Distribution had informed that the subsidized food grains being allocated by the Government of India for distribution under the National Food Security Act cannot be used for the operationalisation of any State specific/ other scheme under a different name / nomenclature other than NFSA, as the same is not permissible under the Act. In this regard, I am directed to inform that the Council of Ministers of the Government of National Capital Territory of Delhi had earlier approved this scheme for home delivery of NFSA ration under the nomenclature Mukhya Mantri Ghar Ghar Ration Yojana. The Department was informed about this scheme vide the notification dated 20.02.2021 (copy enclosed). In view of the Department's letter, the Council of Ministers, vide the decision no. 2987 dated 24th March 2021, has approved to rescind/ withdraw this nomenclature for the scheme viz. Mukhya Mantri Ghar Ghar Ration Yojana and to continue the implementation process of home delivery of NFSA commodities in accordance with the provisions of NFSA Act 2013 and Targeted Public Distribution System., It is clarified that the Fair Price Shops will not be closed after implementation of the home delivery scheme. The home delivery scheme is in pursuance of the spirit of letter dated 1st Feb, 2018 of the Department of Food & Public Distribution, Government of India for Home Delivery of SFAs to certain category of beneficiaries. It is optional and the people may opt for either home delivery of ration or they may take ration from Fair Price Shops. Therefore, both the systems would continue to work on ground. For ensuring full coverage of migrant beneficiaries of the National Food Security Act, One Nation One Ration Card will be implemented in all circles through the existing Fair Price Shops. Pilot implementation of One Nation One Ration Card has already started in Fair Price Shops of Seemapuri circle in Delhi., Dr. Singhvi submits that the Lieutenant Governor directed the Government of National Capital Territory of Delhi to address the concerns raised by the Central Government vide his communication dated 24.06.2021. The Chief Minister vide letter 01.07.2021 clarified that the issues raised by the Central Government are being examined. The Chief Minister further clarified that the Lieutenant Governor did not have powers to give directions to the Government of National Capital Territory of Delhi on transferred subjects, and could only refer the matter to the President. The Lieutenant Governor vide noting dated 26.07.2021, referred the matter for reconsideration by the Council of Ministers., Dr. Singhvi submits that vide first noting dated 24.05.2021, the Chief Minister directed to place the approval given by the Council of Ministers before the Lieutenant Governor, to decide whether the Lieutenant Governor intends to invoke his powers under Article 239‑AA(4) of the Constitution, or not. The Lieutenant Governor vide noting dated 02.06.2021, referred to his earlier letter dated 20.03.2018, wherein the Government of National Capital Territory of Delhi was directed to refer the matter to the Central Government. The Lieutenant Governor noted that no approval from the Central Government is placed on record with regard to the impugned scheme. The Lieutenant Governor further noted the pendency of the present Writ Petition before this Court, challenging the scheme of the Government of National Capital Territory of Delhi, and returned the file to the Chief Minister for reconsideration. Dr. Singhvi submits that there was no stay granted by this Court to the implementation of the impugned Scheme, and the Government of National Capital Territory of Delhi is, therefore, entitled to enforce the impugned Door Step delivery Scheme., Section 36 of the National Food Security Act, inter alia, states that provisions of the Act or the Schemes made thereunder shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of such law. It provides overriding effect to the Act or schemes made thereunder. There is no prohibition against doorstep delivery of ration under the NFSA. In view of Section 36, the doorstep delivery scheme of the Government of National Capital Territory of Delhi will prevail over all other instruments such as the Targeted Public Distribution System Order, 2015 which was passed under section 3 of the Essential Commodities Act, Clauses 8(3) and 10(1) whereof were relied upon by the Petitioner., The National Food Security Act, which is a later special law, in so far as the right to food is concerned, will prevail over the Targeted Public Distribution System Order, 2015 which has been issued under Section 3 of the Essential Commodities Act, 1955, a general law to control production and supply of certain commodities, including food items. He submitted that in case of inconsistency between the provisions of two enactments, the same can be resolved by referring to the underlying nature and purpose and policy of the two enactments. To substantiate his submission, Dr. Singhvi placed reliance on Ashoka Marketing Ltd. v. Punjab National Bank, (1990) 4 SCC 406, the relevant extract of the judgment is produced hereinbelow:, One such principle of statutory interpretation which is applied is contained in the Latin maxim: leges posteriors priores contrarias abrogant (later laws abrogate earlier contrary laws). This principle is subject to the exception embodied in the maxim: generalia specialibus non derogant (a general provision does not derogate from a special one). This means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one (Bennion, Statutory Interpretation pp. 433‑34). The principle which emerges from these decisions is that in the case of inconsistency between the provisions of two enactments, both of which can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment conveyed by the language of the relevant provisions therein. We propose to consider this matter in the light of this principle., The National Food Security Act mandates that the ration has to be distributed under the Targeted Public Distribution System through Fair Price Shops. The Act envisages actual delivery of the ration. The interpretation of the provision of the NFSA, in no manner, prohibits the actual delivery, or delivery at the doorstep of the beneficiaries. The impugned scheme furthers the TPDS by ensuring home delivery of ration to the targeted beneficiaries. The Government of National Capital Territory of Delhi is taking steps to ensure progressive reforms, by enabling the actual delivery of ration at the doorstep, which are in consonance with Section 24(2)b and 24(3) of the Act. Section 24 casts an obligation on the State Government to take delivery of foodgrains from the depots designated by the Central Government, and ensure actual delivery of the entitled benefits to the beneficiaries as identified under section 10 of the Act. Dr. Singhvi further submits that neither the Act stipulates the number of Fair Price Shops which may be licensed, nor the Central Government has capped the number of Fair Price Shops in the Rules. The impugned scheme is not by‑passing the Fair Price Shops. There are around 2000 existing Fair Price Shops in the NCT of Delhi. The impugned scheme proposes to retain only 70 Fair Price Shops in Delhi. This is done to have a cleaner, transparent and efficient system of distribution of foodgrains etc. The Ration Scheme/TPDS is ultimately for the end users. The Ration Scheme/TPDS is not framed to provide a source of livelihood to the Fair Price Shop licensees. It has no concern with the sustainability and viability of the Fair Price Shops. He has sought to place reliance on the consent given by people of Delhi through SMSs sent by the Government of National Capital Territory of Delhi, to opt out for the home delivery of rations. He submitted that out of 70 lakh, 69 lakh people have given their consent to the doorstep delivery of ration. Dr. Singhvi argued that the scheme has not been challenged by even a single beneficiary under the TPDS., The objective of the National Food Security Act, inter alia, reads: An Act to provide for food and nutritional security in human life cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto. The use of foodgrains from the Central Pool for welfare schemes such as the TPDS is allowed by the NFSA. He submitted that the Central Government is not expected to create hurdles in the performance by a State Government of its obligations under the Act, by directing that the delivery to the doorstep of beneficiaries cannot be done in respect of the Central Pool foodgrains, and the State Governments can only do so by procuring other foodgrains on their own. The scope of the Act leaves room for innovative measures to be taken by the State Governments to improve and improvise the delivery system of foodgrains under the TPDS., Other states have also introduced doorstep delivery of rations. The Government of Andhra Pradesh vide letter dated 14.01.2021 notified its proposed scheme, after evaluating the performance of distribution of scheduled commodities at the doorstep of the beneficiaries on a pilot basis in Srikakulam District from September 2019. Based on the feedback of the pilot programme, the Government of Andhra Pradesh proposed a model to deliver essential commodities at doorstep of the cardholders under the Public Distribution System through well‑equipped custom‑built Mobile Dispensing Units (MDU). It proposed that the existing Fair Price Shops will continue to operate and MDU a new layer of last mile connectivity is added to ensure door delivery of scheduled commodities. The State of Madhya Pradesh in November 2021, proposed to begin with the doorstep delivery of ration in 89 tribal blocks. The State Government will facilitate tribals in availing loan for buying vehicles, which will be used for distribution of ration to the said 89 tribal blocks. In the State of West Bengal, the scheme namely Duare Ration Scheme introduced on a pilot basis by the State Government was challenged by the similarly placed petitioners Fair Price Shop Owners. A learned Single Judge of the Calcutta High Court vide judgment dated 15.09.2021 dismissed the Writ Petition bearing no. W.P.A. 14013 of 2021 titled as Mrityunjoy Garan & Ors. v. State of West Bengal & Ors., by holding that the scheme is not in violation of the statutory provisions, and is in consonance with the welfare measures required to be taken in an overall pandemic environment. It was held that the previous practice of ration being sold from the ration shop has not been done away with in the Scheme. The scheme ensures that the Fair Price Shop owners supply the ration articles at the doorstep of the consumers. The entire ration for the one‑month period, proposed to be delivered to the beneficiary at one go, was without any additional financial burden of the beneficiary. The Division Bench of the Calcutta High Court in MAT No.1033 of 2021 titled as Gokul Chandra Das & Anr. v. State of West Bengal & Ors., prima facie, held that the Scheme is not a statute itself, and the matter requires consideration on merits. The Court further held that the scheme, being in nature of a State‑run project, must not be repugnant to the Central legislation and the State is required to discharge the onus of ultimately proving compatibility of the former with the latter. The said order was challenged before the Supreme Court of India, wherein, vide order 08.10.2021, the Supreme Court granted liberty to the parties to move before the High Court for an early hearing of the pending appeals., The Chief Minister of Karnataka announced the launch of ration delivery at doorstep in Bengaluru from 1st November 2021., The Supreme Court of India in Kerala State Beverages (M & M) Corporation Limited v. P.P. Suresh & Ors. (2019) 9 SCC 710, observed that the legitimate expectations of the petitioners have to make way in the larger public interest. Substantive Legitimate Expectation 19. An expectation entertained by a person may not be found to be legitimate due to the existence of some countervailing consideration of policy or law. [ H.W.R. Wade & C.F. Forsyth, Administrative Law (Eleventh Edn., Oxford University Press, 2014). ] Administrative policies may change with changing circumstances, including changes in the political complexion of Governments. The liberty to make such changes is something that is inherent in our constitutional form of Government. [ Hughes v. Department of Health and Social Security, 1985 AC 776, 788: (1985) 2 WLR 866 (HL)] 20. The decision‑makers' freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation. [Finlay, In re, 1985 AC 318: (1984) 3 WLR 1159 : (1984) 3 All ER 801 (HL)] So long as the Government does not act in an arbitrary or in an unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated. 21. The assurance given to the respondents that they would be considered for appointment in the future vacancies of daily wage workers, according to the respondents, gives rise to a claim of legitimate expectation. The respondents contend that there is no valid reason for the Government to resile from the promise made to them. We are in agreement with the explanation given by the State Government that the change in policy due was to the difficulty in implementation of the Government Order dated 20‑2‑2002. Due deference has to be given to the discretion exercised by the State Government. As the decision of the Government to change the policy was to balance the interests of the displaced abkari workers and a large number of unemployed youth in the State of Kerala, the decision taken on 7‑8‑2004 cannot be said to be contrary to public interest. We are convinced that the overriding public interest which was the reason for change in policy has to be given due weight while considering the claim of the respondents regarding legitimate expectation. The expectation of the respondents for consideration against the 25% of the future vacancies in daily wage workers in the Corporation is not legitimate., Dr. Singhvi further argued that the impugned scheme is a step towards the progressive reforms to be brought in a modern progressive society. In support of his submission Dr. Singhvi placed reliance on Senior Electric Inspector v. Laxminarayan Chopra, (1962) 3 SCR 1461, wherein it was observed by the Supreme Court of India as follows: It is perhaps difficult to attribute to a legislative body functioning in a static society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them., Reliance is placed on State v. S.J. Choudhary, (1996) 2 SCC 428, to submit that a statutory interpretation, that is in keeping with the current times, must be adopted. Dr. Singhvi argued that the impugned scheme is an innovative and evolved step, taken to meet the prevailing circumstances. The relevant extract of the judgment relied upon by Dr. Singhvi is reproduced hereinbelow: Statutory Interpretation by Francis Bennion, 2nd Edn., Section 288 with the heading Presumption that updating construction to be given states one of the rules thus: (p. 617) (2) It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. In the comments that follow it is pointed out that an ongoing Act is taken to be always speaking. It is also, further, stated thus: (pp. 618‑19) In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention.
id_47	5	Accordingly the interpreter is to make allowances for any relevant changes that have occurred since the National Food Security Act's passing, in law, social conditions, technology, the meaning of words, and other matters. Just as the United States Constitution is regarded as a living Constitution, so an ongoing British Act is regarded as a living Act. That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will try to foresee the future and allow for it in the wording. An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention., The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials., Dr. Singhvi further placed reliance on All Kerala Online Lottery Dealers Association v. State of Kerala and Others, (2016) 2 Supreme Court Cases 161, to submit that the Supreme Court of India held that an interpretation which advances the object of the National Food Security Act should be favoured. Dr. Singhvi placed reliance on the following extract reproduced herein below: With the ongoing development in the field of science and technology, even though the online lotteries were not in vogue in 1998 when Parliament had passed the Act, it came into existence at a later point of time. The principles laid down by this Court in B.R. Enterprises v. State of Uttar Pradesh, (1999) 9 Supreme Court Cases 700 would apply to the paper lotteries which were in existence at that point of time. The principles laid down therein would also apply to online lotteries or internet lotteries by treating them as a separate class., Dr. Singhvi further argued that the National Food Security Act does not prohibit alternative mode of delivery of foodgrains with the march of time. He placed reliance on Rajeev Suri v. Delhi Development Authority & Others, (2021) Supreme Court Online 7, wherein construction of the Central Vista project was challenged. The State has the power and competence to change the policy. As noted earlier, the Supreme Court of India does not sit in appeal over the decisions of the Government to do merit review of the subjective decision as such. In Natural Resources Allocation, this Court noted that Government decisions concerning public resources have an intricate economic value attached with them and to elevate the standard of review on the basis of a subjective understanding of the subject matter being extraordinary would be dehors the review jurisdiction. In Narmada Bachao Andolan v. Union of India, this Court observed that it is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed are part of the policy‑making process and the courts are ill‑equipped to adjudicate on a policy decision so undertaken., The Supreme Court of India, no doubt, has a duty to see that in the undertaking of a decision no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the court at that time. Just because a petition is termed as a public interest litigation does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them., The Government may examine advantages or disadvantages of a policy at its own end; it may or may not achieve the desired objective. The Government is entitled to commit errors or achieve successes in policy matters as long as constitutional principles are not violated in the process. It is not the Court's concern to enquire into the priorities of an elected Government. Judicial review is never meant to venture into the mind of the Government and thereby examine validity of a decision. In Shimnit Utsch India, this Court, in paragraph 52, observed thus: The courts have repeatedly held that the government policy can be changed with changing circumstances and only on the ground of change such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury reasonableness and free from arbitrariness, irrationality, bias and malice., In State of Madhya Pradesh v. Narmada Bachao Andolan, the Court was dealing with an issue of rehabilitation of persons displaced due to the construction of the dam. It observed that judicial interference in a policy matter is circumscribed: The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or are arbitrary, irrational or an abuse of power. Thus, it emerges to be a settled legal proposition that the Government has the power and competence to change the policy on the basis of ground realities. A public policy cannot be challenged through a public interest litigation where the State Government is competent to frame the policy and there is no need for anyone to raise any grievance even if the policy is changed. The public policy can only be challenged where it offends some constitutional or statutory provisions., In Tata Iron & Steel, paragraph 68, the Court noted that whenever the issues brought before the Court are intertwined with those involving determination of policy and a plethora of technical issues, the courts are very wary and must exercise restraint and not trespass into policy‑making. Similarly, in Narmada Bachao Andolan v. Union of India, paragraph 228, the Court noted that a project may be executed departmentally or by an outside agency as per the choice of the Government, whilst ensuring that it is done according to some procedure or set manner. Further, the Court should be loath to assume that the authorities will not function properly and that the Court should have no role to play. Later in 2007, the Supreme Court of India restated the position in Directorate of Film Festivals, as follows: The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review (see Asif Hameed v. State of Jammu & Kashmir, 1989 Supp (2) Supreme Court Cases 364; Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 Supreme Court Cases 223; Khoday Distilleries Ltd. v. State of Karnataka, (1996) 10 Supreme Court Cases 304; BALCO Employees' Union v. Union of India, (2002) 2 Supreme Court Cases 333; State of Orissa v. Gopinath Dash, (2005) 13 Supreme Court Cases 495; Akhil Bharat Goseva Sangh (3) v. State of Andhra Pradesh, (2006) 4 Supreme Court Cases 162)., To sum up the above discussion, it may be noted that judicial review primarily involves a review of State action – legislative, executive, administrative and policy. The primary examination in a review of a legislative action is the existence of power with the legislature to legislate on a particular subject matter. For this purpose, we often resort to doctrines of pith and substance, harmonious construction, territorial nexus etc. Once the existence of power is not in dispute, it is essentially an enquiry under Article 13 of the Constitution which enjoins the State not to violate any of the provisions of Part III in a law‑making function. The review of executive action would depend upon the precise nature of the action. The domain of executive is wide and is generally understood to take within its sweep all residuary functions of the State. Thus, the precise scope of review would depend on the decision and the subject matter. For instance, an action taken under a statute must be in accordance with the statute and would be checked on the anvil of ultra vires the statutory or constitutional parameters. The enquiry must also ensure that the executive action is within the scope of executive powers earmarked for State Governments and Union Government respectively in the constitutional scheme. The scope of review of a pure administrative action is well settled. Since generally individuals are directly involved in such action, the Court concerns itself with the sacred principles of natural justice audi alteram partem, speaking orders, absence of bias etc. The enquiry is also informed by the Wednesbury principles of unreasonableness. The review of a policy decision entails a limited enquiry. As noted above, second‑guessing by the Court or substitution of judicial opinion on what would constitute a better policy is strictly excluded from the purview of this enquiry. Under the constitutional scheme, the government/executive is vested with the resources to undertake necessary research, studies, dialogue and expert consultation and accordingly, a pure policy decision is not interfered with in an ordinary manner. The burden is heavy to demonstrate a manifest illegality or arbitrariness or procedural lapses in the culmination of the policy decision. However, the underlying feature of protection of fundamental rights guaranteed by the Constitution must inform all enquiries of State action by the constitutional Court., Dr. Singhvi submits that, vide notification dated 03.11.2014, the Central Government capped the conversion charges of wheat into wheat flour (atta), and the State Governments may raise the end retail price of wheat flour from Rs 2 per kilogram (stipulated for wheat under the National Food Security Act) so as to cover the conversion charges of wheat grains to wheat flour and recover the same from the beneficiaries, at the option of the beneficiaries. Dr. Singhvi further submits that even though sugar is not part of the National Food Security Act as an essential commodity, Section 32(2) of the National Food Security Act permits the State Governments to distribute benefits higher than those provided by the Act from their own resources. Through the impugned scheme, the State Government would be rendering an additional service, from its own resources, to distribute the subsidised foodgrains received from the Central Pool under the National Food Security Act. With regard to the Online Nutritional Outreach and Ration Card (ONORC) scheme, it was submitted by Dr. Singhvi that the Government of National Capital Territory of Delhi has already implemented the ONORC scheme from July 2021. The electronic point of sale services are being used, and will continue to be in use, for home‑delivery under the impugned scheme as well as for beneficiaries who opt to pick the food grains from the Circle level Fair Price Shops. This is to ensure portability amongst the Circle level Fair Price Shops and a migrant labour/beneficiary. Dr. Singhvi further submitted that the proposed scheme is in compliance with the two directions issued by the Central Government vide letters dated 03.11.2014 and 01.02.2018, taken note of hereinabove. However, the Government of National Capital Territory of Delhi is not under obligation to comply with the objections raised by the Central Government vide letters dated 22.06.2021 and 08.10.2021, which are without any basis., Dr. Singhvi submitted that the architect of the National Food Security Act envisages that the entitlements should reach the beneficiaries, and the State authorities both the Central as well as State should endeavour to bring about progressive reforms in consonance with the provisions of the Act. Section 12 enlists such reforms; clause (a) of sub‑section (2) of Section 12 talks about doorstep delivery of foodgrains to Targeted Public Distribution System outlets; sub‑clause (g) refers to support to local public models and grains bank; sub‑clause (h) deals with introduction of schemes such as cash transfer, food coupons, or other schemes, to the beneficiaries in order to ensure delivery of their foodgrains entitlement as may be prescribed by the Central Government. Section 24(2)(a) further casts a responsibility on the State Government to take delivery from the designated depots of the Central Government and ensure delivery at the doorstep of each Fair Price Shop. It was submitted that the delivery of ration at the doorstep of the beneficiary is a reform. The general mandate of the Act is to ensure that the entitlements reach the beneficiaries. The Fair Price Shop is merely a means to meet this end, and in no manner is an end in itself. Dr. Singhvi submitted that there is no prohibition of delivery to doorstep of the beneficiary under the Act. In view of the absence of any prohibitionary provision, the State Government may take reformative steps to ensure the delivery of entitlements to the real and ultimate beneficiary. Dr. Singhvi referred to the definition of Fair Price Shop (under Section 2(4)) and Targeted Public Distribution System (under Section 2(23)) in the National Food Security Act to advance his argument that there is no prohibition carved out under the Act against the doorstep delivery of ration at the doorstep of a beneficiary., Dr. Singhvi further submitted that the State Government is entrusted with the responsibility of intra‑state movement of the food grains. It is the obligation of the State Government to deliver the foodgrains after having picked them up from the designated depots of the Central Government. Section 10 of the Act requires the State Government to identify the eligible households/beneficiaries in accordance with guidelines. Dr. Singhvi argued that a conjoint reading of Section 10 with Section 24(2)(b) and Section 24(3) makes it clear that the State Government may take steps to ensure delivery of food grains at the doorstep of the beneficiary., Dr. Singhvi submitted that the National Food Security Act is a welfare legislation. The interpretation of the Act has to be dynamic, and an expansive interpretation should be adopted. Dr. Singhvi further submitted that the Act should not be interpreted with a pedantic approach. He placed reliance on Section 32(2) which, inter alia, provides that, notwithstanding anything contained in the Act, the State Government may continue with or formulate food or nutrition based plans or schemes, providing for benefits higher than the benefits provided under the Act, from its own resources. The Government of National Capital Territory of Delhi is providing sugar, which is a benefit over and above the existing scheme, and is not provided under the Act. The mandate of the Act is to maximise the benefits, and not to minimise the same., Dr. Singhvi submitted that judicial review does not lie in matters of economic policy, as held in BALCO Employees' Union (Regd.) v. Union of India & Others, (2002) 2 Supreme Court Cases 333. The existing ration distribution system is riddled with rampant corruption, diversion and leakages to the black market. The Government of National Capital Territory of Delhi, with the view to curb the maladies, has introduced the scheme. The petitioners are ration shop owners, who are licensees and, therefore, can have no vested right in perpetuation of the existing system. The right to challenge the scheme or policy and seek injunction against the same is very limited. A policy measure undertaken in the larger interest cannot be questioned at the behest of the petitioners, who have narrow commercial interest. The petitioners' Fair Price Shop owners were never promised continuation of their licences for eternity by the State. Therefore, the petitioners cannot invoke the principles of promissory estoppel or legitimate expectations at the cost of public interest. To substantiate his argument, Dr. Singhvi placed reliance on Kerala State Beverages (M and M) Corporation Limited and Punjab State Power Corporation Limited and Another v. EMTA Coal Limited, (2021) Supreme Court Online 766. The relevant extract of the Punjab State case is reproduced herein below: We find that the High Court has also clearly understood the legal position with regard to language used in Section 11 of the Act. When considering Section 62 of the Contract Act, 1872 read with Section 11 of the Act, it observed that the parties to a contract may willingly agree to substitute a new contract or to rescind it or alter it. The High Court erred in observing that EMTA had a legitimate expectation. It could not therefore have been left in the lurch particularly when the same mine was re‑allocated to the Corporation suggestive of continuity. Indeed, the respondents were well within their rights to reject the arrangement while granting consideration under Section 11 if the performance of the petitioner was unsatisfactory or if there was any other factor which the Corporation found relevant enough to discard the arrangement altogether. We find that the reasoning adopted by the High Court is totally wrong. Merely because the coal mine block was allotted to Punjab State Power Corporation Limited, the same could not give any vested right in favour of EMTA, particularly in view of the language used in Section 11 of the Act. The reasoning that Punjab State Power Corporation Limited was within its right to reject the arrangement if the performance of EMTA was unsatisfactory or if there was any other factor which the Corporation found relevant enough to discard the arrangement altogether is, in our view, totally erroneous. The issue with regard to legitimate expectation has been recently considered by a bench of this Court, of which Justice L. Nageswara Rao was a member. After considering various authorities, in the case of Kerala State Beverages (M and M) Corporation Limited, it was observed: The decision‑makers' freedom to change the policy in public interest cannot be fettered by applying the principle of substantive legitimate expectation. So long as the Government does not act in an arbitrary or unreasonable manner, the change in policy does not call for interference by judicial review on the ground of a legitimate expectation of an individual or a group of individuals being defeated., Dr. Singhvi further argued that public interest has been accepted as an exception to the principles of legitimate expectation and, therefore, the challenge by the petitioners on the ground of legitimate expectation does not hold good. He placed reliance on Union of India and Another v. International Trading Co. and Another, (2003) 5 Supreme Court Cases 437. The relevant extract is reproduced herein below: Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest. Indisputably, public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that the respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and that direction for consideration of the application for renewal was necessary. Had the High Court not recorded any finding on the merits of the respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been a mere formality and grant of renewal would have been the inevitable result, though it may be against the policy decision. That renders the High Court judgment indefensible., Dr. Singhvi argued that judicial review in matters of policy decisions of the Government is confined to a narrow sphere. The Government of National Capital Territory of Delhi is empowered to notify the scheme which pertains to a transferred subject. He placed reliance on paragraph 165 of Rajeev Suri and paragraphs 92 and 93 of BALCO Employees' Union. It was argued that the National Food Security Act does not envisage that the existing model of distribution of foodgrains must continue in perpetuity. It was submitted that the mandate of the Act is to ensure right to food and actual access of the entitlements to the beneficiaries under the Targeted Public Distribution System. Dr. Singhvi referred to observations made in Swaraj Abhiyan to argue that it is the obligation of the State to ensure that adequate foodgrains are available to all the beneficiaries., Finally, in Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 Supreme Court Cases 37, this Court referred to another constitutional obligation of providing adequate medical services to the people and held in paragraph 16 of the report: It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. There is undoubtedly a distinction between a statutory obligation and a constitutional obligation but there can be no doubt that the right to food is actually a constitutional right and not merely a statutory right. In any event, even if the right to food is a statutory right, it would be the obligation of the State to make all possible efforts and some more to ensure that, to the extent possible, adequate foodgrains are available to all and particularly to those in drought‑affected areas. There can hardly be any dispute on this. In this context, it would be worth recalling the preamble to the National Food Security Act which states that it is an Act to provide for food and nutritional security in a human life‑cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity and for matters connected therewith or incidental thereto., Dr. Singhvi lastly referred to the order dated 28.11.2001 passed in Peoples Union for Civil Liberties (Public Distribution System matters) v. Union of India & Others; the order dated 08.05.2002 passed in Peoples Union for Civil Liberties (Public Distribution System matters) v. Union of India & Others, (2011) 12 Supreme Court Cases 673; and the order dated 02.05.2003 passed in Peoples Union for Civil Liberties (Public Distribution System matters) v. Union of India & Others, (2013) 2 Supreme Court Cases 688, to lay emphasis on the foodgrains distribution regime. Dr. Singhvi further referred to Swaraj Abhiyan and the order dated 27.04.2020 passed by the Division Bench of this Court in W.P.(C) 2161 of 2017 Delhi Rozi‑Roti Adhikar Abhiyan v. Union of India & Others, in the backdrop of the Covid‑19 pandemic, directing the Government of National Capital Territory of Delhi to ensure that Fair Price Shop shops shall remain operational, and that the foodgrains be further delivered from the ration shops on a regular basis., Dr. Singhvi concluded by submitting that the Government of National Capital Territory of Delhi has sufficiently addressed all the objections and queries with regard to the scheme, time and again raised by the Central Government. The impugned scheme is completely in accordance with the constitutional and statutory framework. There is no basis to stall the implementation of the scheme in view of the judgment of the Supreme Court of India in State of (National Capital Territory of Delhi). To summarise his submissions: (a) The Targeted Public Distribution System Order, 2015 passed under the Essential Commodities Act is superseded by the enactment of the National Food Security Act; (b) The Government of National Capital Territory of Delhi has fairly responded to the letters dated 22.06.2021 and 08.10.2021 issued by the Central Government; (c) At the root, the endeavour of the Government of National Capital Territory of Delhi is to improve the process of delivery of rations to the beneficiaries; (d) The existing grievance redressal mechanism under the National Food Security Act will be applicable to the new system proposed by the Government of National Capital Territory of Delhi; (e) In view of the file noting of the Lieutenant Governor, in case of difference with a minister and not with the Council of Ministers, the Lieutenant Governor can refer a matter for consideration by the Council under Rule 49 of the Transfer of Business Rules. However, Rule 49 and Section 45(c) of the Government of National Capital Territory of Delhi Act do not empower the Lieutenant Governor to refer a matter for reconsideration to the Council of Ministers., Dr. Singhvi has challenged the locus standi of the petitioners to prefer these writ petitions. The present writ petitions have been preferred by the Association/Registered Society of Fair Price Shop Owners/Dealers appointed under the Essential Commodities Act. Similarly, W.P.(C.) No. 13104/2021 has been preferred by Delhi Ration Dealers Union through its President and six individual ration dealers in Delhi. The petitioners claim that their rights are vitally affected by the scheme of the Government of National Capital Territory of Delhi and the tenders floated by the Government of National Capital Territory of Delhi. The admitted position, also stated by the Government of National Capital Territory of Delhi and their learned senior counsels, is that if the impugned scheme is implemented and the tenders as called are awarded, a large number of existing Fair Price Shops in the National Capital Territory of Delhi would be very severely affected, as their business would dwindle. Under the impugned scheme and the tenders issued by the Government of National Capital Territory of Delhi, what is proposed is to invite tenders, inter alia, for the purpose of appointing agencies who would take the grains provided by the Central Government under the National Food Security Act, clean/process them, convert wheat into atta, pack them and deliver the packets at the doorstep of the beneficiaries. The newly engaged agencies are proposed to be granted licences under the Essential Commodities Act, appointing them as Fair Price Shop owners/dealers. It is also the claim of the Government of National Capital Territory of Delhi that a very large number of beneficiaries (98.57%) have opted for the doorstep delivery scheme. This scheme and the tenders issued by the Government of National Capital Territory of Delhi, if awarded and implemented, would admittedly put many of the existing ration shop dealers/owners out of business. The petitioners also assert that the impugned scheme is justified by the Government of National Capital Territory of Delhi on the basis of unfounded and biased allegations of wrongdoing by all the Fair Price Shop owners/dealers, and that their name and reputation are at stake. Thus, there is no doubt that the petitioners have the locus standi to prefer the present petitions. We therefore reject this objection of Dr. Singhvi., At this stage, we may take note of the history of the Public Distribution System in India, with focus on the National Capital Territory of Delhi, to understand how it has evolved and worked over the decades. India has witnessed the evolution of the system of public distribution of grains over the decades. This had its origin in the rationing system introduced by the colonial government as a wartime rationing measure around World War II, back in 1939.
id_47	6	As a response to the food shortages of the time, the first structured public distribution system through the rationing system, for sale of a fixed quantity of ration to entitled families in specified cities/towns, was then introduced. Post‑independence, India retained the public distribution of foodgrains as a deliberate social policy. On 1st April 1955, the Essential Commodities Act was enacted by the Parliament with the object to provide, in the interest of the general public, for the control of the production, supply and distribution of, and trade and commerce, in certain commodities. The Act was introduced to achieve two objectives: a) to maintain supply of the essential commodities to consumers; b) to secure equitable distribution and availability of these essential commodities. The Act provides for framing of rules to regulate and control the production, pricing, and distribution of the essential commodities. Section 2A defines essential commodity to mean a commodity specified in the Schedule to the Act. The Schedule to the Essential Commodities Act lists essential commodities and at serial No. (3), foodstuffs, including edible oil seeds and oils have been scheduled. Section 3 of the Act empowers the Central Government, for the purpose of maintaining or increasing supplies of any essential commodity, or for securing their equitable distribution and availability at fair prices, to issue orders providing for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce therein., Section 3(2) of the Essential Commodities Act enumerates some of the aspects on which an order may be issued by the Central Government, which include aspects of grant of licenses and permits for production or manufacture of essential commodities; for controlling the prices on which any essential commodity may be bought or sold; for regulating by licenses, permits, or otherwise, the storage, transport, distribution, disposal, acquisition, use or consumption of any essential commodity; for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale etc., Till the 1970s, the public distribution system was a general entitlement scheme as a component of the strategy to alleviate poverty for all consumers without any specific target, and was introduced as a universal scheme for the distribution of food at reasonable prices. The system was subsequently modified, and was launched in June 1992 as the Revamped Public Distribution System in view of the economic liberalisation measures adopted by the nation. It aimed to strengthen and streamline the system, as well as to improve its reach in the far‑flung, hilly, remote and inaccessible areas, where a substantial section of the underprivileged classes live., Pursuant to the World Food Summit in 1996, of which India was also a signatory committing to ensure food security for all, in June 1997 the public distribution system was renamed and launched as the Targeted Public Distribution System by the Government of India, with focus on the poor. Under the Targeted Public Distribution System, beneficiaries were divided into two categories: households below the poverty line (BPL) and households above the poverty line (APL)., In December 2000, Antyodaya Anna Yojana was launched for one crore poorest of the poor families. Antyodaya Anna Yojana was launched with the aim to reduce hunger among the poorest segments of the Below Poverty Line population., The implementation of the distribution schemes was achieved through the licensed ration shops/outlets, wherefrom the beneficiaries would collect the foodgrains. Insofar as Delhi is concerned, from time to time, several orders have been issued by the Government under the Essential Commodities Act. The Delhi Rationing Order, 1966 was one such order, which made provision for appointment of, inter alia, authorized wholesalers and authorized retail distributors in respect of rationed items. This order regulated the procurement and distribution of the rationed items through the authorized retail distributors., On 27 August 1968, the Delhi Specified Food Articles (Regulation & Distribution) Order, 1968 was issued by the Administrator of the Union Territory of Delhi with the concurrence of the Central Government under Section 3 of the Essential Commodities Act. Clause 2(7) of this order defined a fair price shop holder to mean a retail dealer authorized under the provisions of Clause 3 in respect of any specified food article. It further explained that every authorized retail distributor appointed, or authorized, under the Delhi Rationing Order, 1966 and whose appointment, or authorization was in force immediately before such commencement, shall be deemed to be a fair price shop holder for the purposes of the said order., Under Clause 3 of this order, the Administrator or his authorized officer could appoint any person, or body of persons to be, inter alia, a fair price shop holder in respect of such specified food articles for the purpose of this order, and thereupon the fair price shop holder could obtain and supply specified food articles in accordance with the provisions of the order., Clause 5, inter alia, provided that no fair price shop holder shall sell, or supply specified food article to any person, except the food card registered with him, or a special food card issued by the Food & Supply Officer and only at such prices as may be specified by the Central Government, or the Administrator., The Administrator of the Union Territory of Delhi issued an order dated 12 January 1981 in exercise of powers conferred by sub‑section (2)(d) of Section 3 of the Essential Commodities Act, called the Delhi Specified Articles (Regulation of Distribution) Order, 1981, which extended to the whole of the Union Territory of Delhi, as it then existed. Clause 2(9) of the said Order defined fair price shop holders to mean a retail dealer authorised under the provisions of Clause 3 in respect of any specified articles. On the commencement of the said Order, the appointment of every fair price shop holder made under the Delhi Specified Food Articles (Regulation of Distribution) Order, 1968 was continued, unless such appointment or authorisation was, or was deemed to be rescinded under the said Order. Clause 3(1) enabled the Administrator, or his authorised officer by him in writing in this behalf, by order, to appoint any person or body of persons to be, inter alia, a fair price shop holder in respect of specified articles, and thereupon such fair price shop holder was entitled to obtain and supply specified articles in accordance with the provisions of the said Order. The authorisations issued under the erstwhile Delhi Specified Food Articles (Regulation of Distribution) Order, 1968 were deemed to be authorisations under Clause 3(1) of the 1981 Order., In 2001, the Public Distribution System (Control) Order 2001 was issued by the Central Government under Section 3 of the Essential Commodities Act, for maintaining supplies and securing availability and distribution of essential commodities under the public distribution system. This Order extended to the whole of India. This Order defined fair price shop to mean a shop which has been licensed to distribute essential commodity by an Order issued under Section 3 of the Essential Commodities Act, to the ration card holders under the public distribution system., The expression public distribution system was defined to mean the system for distribution of essential commodities to the ration card holders through the fair price shops, such as rice, wheat, sugar, edible oils, kerosene and such other commodities as are notified by the Central Government under Clause (a) of Section 2 of the Essential Commodities Act. While the obligation to issue ration cards to Above Poverty Line, Below Poverty Line and Antyodaya families, and to conduct periodical review and checking of ration cards was cast on the State Government, the Central Government was charged with the responsibility of making available to the State Governments, foodgrains for distribution under the Targeted Public Distribution System at such scales and prices, as provided in paragraph 3 of the Annexure to this Order., Clause 6 of this Order deals with the aspect of distribution. Clause 6(1) states that the procedure for distribution of foodgrains by the Food Corporation of India to the State Governments or their nominated agencies shall be as per paragraph 4 of the Annex to the said order. Clauses 6(2) and 6(3) are relevant: (2) Fair price shop owners shall take delivery of stocks from authorised nominees of the State Governments to ensure that essential commodities are available at the fair price shop within first week of the month for which the allotment is made. (3) The district authority entrusted with the responsibility of implementing the public distribution system shall ensure that the stocks allocated to the fair price shops are physically delivered to them by the authorised nominee within the stipulated time., Clause 14 of this Order provided that the provisions thereof shall have effect, notwithstanding anything to the contrary contained in any order made by a State Government, or by any officer of such State Government before the commencement of the said Order, except as regards anything done or omitted to be done thereunder before such commencement., The above orders issued from time to time, thus, envisaged the system of distribution of foodgrains and other specified essential commodities to the beneficiaries through the agency/institution of fair price shops, which were licensed by the State Government, while adhering to the terms and conditions laid down under the Orders and the Essential Commodities Act., In 2013, the President first promulgated the National Food Security Ordinance, 2013 on 5 July 2013. In the same year, the Parliament enacted the National Food Security Act, 2013. The Act relies largely on the existing Targeted Public Distribution System to deliver food. The Act came into force on 10 September 2013. The introduction to the National Food Security Act notices that eradicating extreme poverty and hunger is one of the goals under the Millennium Development Goals of the United Nations. It casts responsibilities on all State actors to recognise the right of everyone to adequate food. Food security is defined to mean availability of sufficient foodgrains to meet the domestic demand as well as access, at the individual level, to adequate quantities of food at affordable prices., The National Food Security Act makes a paradigm shift in addressing the problem of food security from a welfare approach to a right‑based approach. The eligible beneficiaries under the Act are entitled to receive foodgrains as per their entitlement, at highly subsidised prices. Women and children and other special groups such as destitute, homeless, disaster and emergency affected persons, and persons living in starvation, have been conferred with rights to receive free meals, or at affordable prices. Article 47 of the Constitution, inter alia, provides that 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. The Universal Declaration of Human Rights and International Covenant on Economic, Social and Cultural Rights, to which India is a signatory, also cast responsibilities on all State parties to recognise the right of everyone to adequate food. Eradicating extreme poverty and hunger is one of the goals under the Millennium Development Goals of the United Nations., In pursuance of the constitutional and the international conventions obligations, providing food security has been focus of the Government's planning and policy. Food security means availability of sufficient foodgrains to meet the domestic demand as well as access, at the individual level, to adequate quantities of food at affordable prices. Attainment of self‑sufficiency in foodgrains production at the national level has been one of the major achievements of the country. In order to address the issue of food security at the household level, the Government is implementing the Targeted Public Distribution System under which subsidised foodgrains are provided to the Below Poverty Line, including Antyodaya Anna Yojana, and Above Poverty Line households. While the Below Poverty Line households under the Targeted Public Distribution System receive thirty‑five kilograms foodgrains per family per month, the allocation to Above Poverty Line households depends upon availability of foodgrains in the Central pool. Allocations for other food‑based welfare schemes for women and children, natural disasters, etc., are also being made at subsidised rates., Ensuring food security of the people, however, continues to be a challenge. The nutritional status of the population, and especially of women and children, also needs to be improved to enhance the quality of human resource of the country. The proposed legislation marks a paradigm shift in addressing the problem of food security from the current welfare approach to a right‑based approach. Besides expanding coverage of the Targeted Public Distribution System, the proposed legislation would confer legal rights on eligible beneficiaries to receive entitled quantities of foodgrains at highly subsidised prices. It will also confer legal rights on women and children to receive meal free of charge., The National Food Security Act was enacted to, inter alia, (a) provide for food and nutritional security, in human life‑cycle approach, by ensuring access to adequate quantity of quality food at affordable prices to people to live a life with dignity; (b) entitle every person belonging to priority households, to receive every month from the State Government, under the Targeted Public Distribution System, five kilograms of foodgrains per person per month, at subsidised prices specified in Schedule I to the proposed legislation. The households covered under Antyodaya Anna Yojana shall be entitled to receive thirty‑five kilograms of foodgrains per household per month at the prices specified in Schedule I. The said entitlements at subsidised prices shall extend up to seventy‑five per cent of the rural population and up to fifty per cent of the urban population; (c) entitle every pregnant woman and lactating mother to meal, free of charge, during pregnancy and six months after child birth, through the local anganwadi, so as to meet the nutritional standards specified in Schedule II; and to provide to such women maternity benefit of not less than rupees six thousand in such instalments as may be prescribed by the Central Government; (d) entitle every child up to the age of fourteen years – (i) age appropriate meal, free of charge, through the local anganwadi so as to meet the nutritional standards specified in Schedule II in the case of children in the age group of six months to six years; and (ii) one mid‑day meal, free of charge, every day, except on school holidays, in all schools run by local bodies, Government and Government‑aided schools, to children up to class VIII or within the age group of six to fourteen years, whichever is applicable, so as to meet the nutritional standards specified in Schedule II; (e) require the State Government to identify and provide meals through the local anganwadi, free of charge, to children who suffer from malnutrition, so as to meet the nutritional standards specified in Schedule II; and implement schemes covering entitlements of women and children in accordance with the guidelines, including cost sharing, between the Central Government and the State Governments in such manner as may be prescribed by the Central Government; (f) ... (g) provide subsidised foodgrains under the Targeted Public Distribution System to specified percentage of rural and urban population, at the all‑India level and empower the Central Government to determine the State‑wise percentage coverage; (h) ... (i) progressively undertake necessary reforms by the Central and State Governments in the Targeted Public Distribution System in consonance with the role envisaged for them in the proposed legislation; (j) ... (k) impose obligation upon the State Governments to put in place an internal grievance redressal mechanism which may include call centres, help lines, designation of nodal officers, or such other mechanism as may be prescribed by the respective Governments; and for expeditious and effective redressal of grievances of the aggrieved persons in matters relating to distribution of entitled foodgrains or meals under Chapter II of the proposed legislation, a District Grievance Redressal Officer, with requisite staff, to be appointed by the State Government for each District, to enforce these entitlements and investigate and redress grievances., To be able to deal with the challenge raised by the petitioners, it is necessary to closely look into and understand the provisions of the National Food Security Act. Section 2(4) of the Act defines fair price shop to mean a shop which has been licensed to distribute essential commodities by an order issued under section 3 of the Essential Commodities Act, 1955, to the ration card holders under the Targeted Public Distribution System. Section 2(16) defines ration card to mean a document issued under an order or authority of the State Government for the purchase of essential commodities from the fair price shops under the Targeted Public Distribution System. Section 2(23) defines Targeted Public Distribution System to mean the system for distribution of essential commodities to the ration card holders through fair price shops. Section 3 of the Act vests the right in every person belonging to eligible households identified under Section 10(1), to receive five kilograms of foodgrains per person per month at subsidised prices specified in Schedule I from the State Government under the Targeted Public Distribution System. Section 3(3) provides that, subject to Sub‑Section (1), the State Government may provide to the persons belonging to eligible households, wheat flour in lieu of the entitled quantity of foodgrains in accordance with such guidelines as may be specified by the Central Government. While placing the responsibility on the State Government to identify households covered under the Antyodaya Anna Yojana, and the remaining households as priority households to be covered under the Targeted Public Distribution System, Section 10 protects the right of the beneficiaries in the State by providing that the State Government shall continue to receive the allocation of foodgrains from the Central Government under the existing Targeted Public Distribution System. Section 12 further mandates that the Central Government and the State Governments shall endeavour to progressively undertake necessary reforms in the Targeted Public Distribution System in consonance with the role envisaged for them in the said Act. The reforms shall, inter alia, include doorstep delivery of foodgrains to the Targeted Public Distribution System outlets. The reforms shall also include preference to public institutions or public bodies such as Panchayats, self‑help groups, co‑operatives, in licensing of fair price shops and management of fair price shops by women or their collectives. Section 22 of the Act places statutory responsibility on the Central Government to allocate from the Central pool the required quantity of food grains to the State Government under the Targeted Public Distribution System as per entitlement under Section 3, and at prices specified in Schedule I, so as to ensure regular supply of food grains to persons belonging to eligible households. In fulfillment of this statutory obligation, the Central Government is, inter alia, obliged to provide for transportation of food grains, as per allocation, to the depots designated by the Central Government in each State and to provide assistance to the State Government in meeting the expenditure incurred by it towards intra‑State movement, handling of food grains and margins paid to fair price shop dealers, in accordance with such norms and manner as may be prescribed by the Central Government. Section 24 enlists the obligations of State Government to ensure food security to the targeted beneficiaries in their State. The said Section reads as follows: Implementation and monitoring of schemes for ensuring food security. (1) The State Government shall be responsible for implementation and monitoring of the schemes of various Ministries and Departments of the Central Government in accordance with guidelines issued by the Central Government for each scheme, and their own schemes, for ensuring food security to the targeted beneficiaries in their State. (2) Under the Targeted Public Distribution System, it shall be the duty of the State Government to a) take delivery of foodgrains from the designated depots of the Central Government in the State, at the prices specified in Schedule I, organise intra‑State allocations for delivery of the allocated foodgrains through their authorised agencies at the door‑step of each fair price shop; and b) ensure actual delivery or supply of the foodgrains to the entitled persons at the prices specified in Schedule I. (3) For foodgrain requirements in respect of entitlements under sections 4, 5 and section 6, it shall be the responsibility of the State Government to take delivery of foodgrains from the designated depots of the Central Government in the State, at the prices specified in Schedule I for persons belonging to eligible households and ensure actual delivery of entitled benefits, as specified in the aforesaid sections. (4) In case of non‑supply of the entitled quantities of foodgrains or meals to entitled persons under Chapter II, the State Government shall be responsible for payment of food security allowance specified in section 8. (5) For efficient operations of the Targeted Public Distribution System, every State Government shall, (a) create and maintain scientific storage facilities at the State, District and Block levels, being sufficient to accommodate foodgrains required under the Targeted Public Distribution System and other food‑based welfare schemes; (b) suitably strengthen capacities of their Food and Civil Supplies Corporations and other designated agencies; (c) establish institutionalised licensing arrangements for fair price shops in accordance with the relevant provisions of the Public Distribution System (Control) Order, 2001 made under the Essential Commodities Act, 1955, as amended from time to time., To maintain transparency and accountability in the matter of implementation of the Targeted Public Distribution System, Chapter XI of the Act (Sections 27 to 29) provides for TPDS related accounts to be placed in public domain and to be kept open for inspection to the public; for conduct of social audit by the local authority, or any other authority, or body authorized by the State Government, inter alia, on the functioning of Fair Price Shops; the conduct of a social audit by the Central Government or through an independent agency having experience in conduct of such audits and; to set up vigilance committees for ensuring transparency and proper functioning of TPDS and accountability of functionaries in such system, by the State Government., Section 32 of the Act clarifies that the provisions of the Act shall not preclude the Central Government, or the State Government, from continuing or formulating other food‑based welfare schemes. It further provides that notwithstanding anything contained in this Act, the State Government may, continue with or formulate food or nutrition based plans or schemes providing for benefits higher than the benefits provided under this Act, from its own resources., Section 36 of the Act provides that the provisions of the Act, or the schemes made thereunder, shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of such law., Section 38 empowers the Central Government to, from time to time, give such directions, as it may consider necessary, to the State Governments for the effective implementation of the provisions of the Act, and the State Governments shall comply with such directions., Section 39 empowers the Central Government to make Rules in consultation with the State Governments to carry out the provisions of the Act. Rules have been framed in exercise of power conferred by Section 39 of the Act on various aspects taken note of in Section 39(2)., Section 40 empowers the State Government to make Rules which are consistent with the Act, and the Rules made by the Central Government, to carry up the provisions of the Act., The Food Security Allowance Rules, 2015 were framed under Section 39(2)(c) read with Section 8 of the Act by the Central Government, which, inter alia, place the responsibility on the Central Government and State Governments to adhere to the time limits provided in the Public Distribution System (Control) Order, 2001, or any other orders issued from time to time by Central Government, for allocation of foodgrains and making them available for distribution to the persons entitled under the Act. Rule 4 obliges the Nodal Officer (an officer designated, as such, under Section 14 of the Act), to verify, at the end of every month and at each fair price shop, the status of supply of foodgrains to the entitled persons covered under each fair price shop, as per their entitlement under the Act. It, inter alia, provides for the payment of Food Security allowance in case of non‑supply of foodgrains., Rule 5 requires the State Government to use electronic methods, subject to availability of adequate infrastructure, for carrying out and recording the monthly distribution of foodgrains only, inter alia, reasons for non‑distribution, if any, in respect of each fair price shop and place such details in the public domain., Rule 9 is important, and states that the Food security allowance shall not be payable to an entitled person who does not visit the fair price shop to claim his entitlement during the month., The Central Government also framed the Food Security (Assistance to State Governments) Rules, 2015 under Section 39(2)(e) read with Section 22(4)(d) of the Act (after consultation with the State Governments). Rule 2(f) defines intra‑state movement to mean movement of food grains within a State from the designated depots and delivering it at the door‑step of fair price shops and shall include all stages in this process. Rule 2(g) defines point of sale device to mean device to be installed and operated at fair price shops for identification of entitled persons and households for delivery of food grains, based on Aadhaar number or other authentication tools, specified by the Central Government from time to time. Rule 3 obliges the Central Government and the State Government to adhere to the time limits provided in the Public Distribution System (Control) Order, 2015, as amended from time to time, or any other order issued by the Central Government in this regard, for allocation of food grains and delivery up to the fair price shops. Rule 5 casts a duty on the State Government to take delivery of food grains under Targeted Public Distribution System from the designated depots, ensure its delivery through their authorised agencies up to the door‑step of fair price shops and to ensure its supply to entitled persons and households at prices specified in Schedule I of the Act. Rule 6 states that the Central Government shall assist the State Government to meet the expenditure incurred by it on intra‑State movement, handling of foodgrains and margins paid to fair price shop dealers, for distribution of foodgrains allocated for the entitled persons and households. Rule 7 lays down the norms for grant of Central assistance to State Governments and Union Territories. The said Rule incentivises sale by Fair Price Shop dealers through a point of sale (PoS) device. Sub‑Rule 5, 6 and 7 of Rule 7 are relevant and read as follows: (5) The State Government shall furnish the details of all transactions made through the point of sale devices in public domain. (6) The State Government shall have the flexibility in choosing any of the following models for the installation of point of sale device, namely: a) the State Government may purchase, install and maintain the point of sale device; b) the State Government may select a system integrator to purchase, install and maintain the point of sale device; c) the fair price shop dealer may purchase, install and maintain the point of sale device. (7) The State Government shall determine the basis for apportioning the additional margin for sale through point of sale device among different stakeholders, depending upon the model chosen., Rule 8 obliges the State Government to ensure payment of fair price shop dealers margin in advance by way of adjusting the same in prices of foodgrains to be paid by fair price shop dealers, or through other appropriate mechanism. It further provides in sub‑Rule (2) that if the price of food grains payable by fair price shop dealers in any State or Union Territory is lower than the fair price shop dealers' margin, the State Government shall ensure upfront payment of margin, in full, to fair price shop dealers., We may now notice the provisions of the Targeted Public Distribution System (Control) Order, 2015 issued by the Central Government under Section 3 of the Essential Commodities Act, in supersession of the Public Distribution System (Control) Order, 2001.
id_47	7	Clause 2(j) defines “fair price shop owner” to mean a person and includes a cooperative society, a body corporate, a company of a State Government, a Gram Panchayat, or any other body in whose name a shop has been licensed to distribute essential commodities under the Targeted Public Distribution System. The Food Security Act means the National Food Security Act., Clause 4 of the Order states that the State Government shall issue ration cards to eligible households. Clause 7 of the Order obliges the State Government to lift foodgrains from designated depots of the Food Corporation of India through its authorized agency. The State Government, on receiving allocation of food grains from the Central Government, shall issue allocation orders authorising its agencies to lift foodgrains from the Corporation. Such orders shall specify the allocation for each month for a fair price shop. While making allocation to a fair price shop, the designated authority shall take into account any balance stock undistributed with the fair price shop owner for subsequent allocations. The designated authority shall ensure that one copy of the allocation order is delivered to the local authority, vigilance committees, and any other body nominated by the State Government for monitoring the functioning of the fair price shop. The State Government shall ensure that the allocation order depicting the stocks of food grains allotted during the month to the fair price shops is displayed in the public domain, including on the State web portal., Clause 7(11) obliges the State Government to devise a suitable mechanism for transportation of foodgrains from the Corporation godown to the intermediate godown and the doorstep delivery of the food grains to the fair price shop, provided that the State Government may also transport foodgrains directly to the fair price shop from the Corporation godown and ensure its doorstep delivery., Clause 7(12) obliges the State Government to furnish a report on a quarterly basis to the Central Government regarding doorstep delivery in the format of Annex‑III. The format requires a statement on doorstep delivery to the fair price shops for the quarter ending June, September, December or March, including total number of districts in the State/UT, name of agency, type of agency (State Civil Supplies Corporation, other apex body, cooperative societies, private agency such as wholesalers, LAMPS, PACS, etc.), number of districts covered, total number of fair price shops covered, and other relevant details. The information shall be furnished within two weeks after the end of every quarter., Clause 8 mandates that the allocation of food grains made by the Central Government under the Targeted Public Distribution System to the State Government shall be used for distribution as per the provisions of the National Food Security Act and not for any other purpose. The State Government is obliged to furnish a utilization certificate every year in the format of Annex‑IV., Clause 8(3) requires the State Government, through the authorized agency, to ensure physical delivery of food grains to the fair price shop by the end of the month preceding the allocation month and in any case not later than the first week of the allocation month. Clause 8(4) obliges the State Government to obtain a monthly certificate, including through an electronic platform, confirming delivery of allocated foodgrains to the fair price shop and their distribution to eligible households during the allocation month., Clause 9 deals with licensing and regulation of fair price shops. Sub‑clauses 5 to 9 are pertinent: (5) licences to fair price shop owners shall be issued keeping in view the viability of the fair price shop; (6) the State Government shall ensure that the number of ration card holders attached to a fair price shop is reasonable, that the shop is located so consumers do not face difficulty reaching it, and that proper coverage is ensured in hilly, desert, tribal and other difficult‑to‑access areas; (7) the State Government shall fix an amount as the fair price shop owner's margin, which shall be periodically reviewed to ensure sustained viability of operations; (8) the State Government shall put in place a mechanism to ensure release of the margin without delay; (9) the State Government shall allow sale of commodities other than the food grains distributed under the Targeted Public Distribution System at the fair price shop to improve viability., Clause 10 concerns the operation of fair price shops. (1) The fair price shop owner shall disburse food grains to the ration card holder as per his entitlement under the Targeted Public Distribution System. (2) The ration card holder may draw his full entitlement in more than one installment. (3) The fair price shop owner shall not retain the ration cards after supply of the food grains. (4) The licence issued by the State Government shall lay down the duties and responsibilities of the fair price shop owner, including: (i) sale of food grains at the prescribed retail issue price; (ii) display of information on a notice board regarding entitlement, scale of issue, retail prices, shop timings, stock received, opening and closing stock, grievance redressal mechanism and toll‑free helpline; (iii) maintenance of records of ration card holders in the form prescribed by the State Government, including electronic format; (iv) display of samples of food grains supplied; (v) production of books and records relating to allotment and distribution for inspection; (vi) submission of accounts of actual distribution and balance stock at month‑end to the designated authority with a copy to the local authority; (vii) opening and closing of the shop as per the prescribed timings displayed on the notice board., Clause 11 deals with monitoring of fair price shops by the State Governments through regular inspections. Clause 12 deals with transparency and accountability in respect of records of the Targeted Public Distribution System. Clause 14 vests the authorized officer of the State Government to undertake search and seizure operations at fair price shops or any premises relevant to transactions of the fair price shop., In the light of the above study and analysis of the Public Distribution System and the statutory framework for its creation and working, we examine the plea of Dr. Singhvi whether there is any bar or prohibition under the National Food Security Act, the Rules and statutory Orders, to the formulation of a scheme for distribution of foodgrains under the Act to the targeted beneficiaries at their doorstep. The fair price shops have always been considered, and continue to be considered, the nodal interface between the State Government and the beneficiaries. While the Central Government makes foodgrains available for distribution, the responsibility of receiving the foodgrains and ensuring their distribution through fair price shops rests with the State Governments. Under the existing regime, the only exception to this manner of distribution is for beneficiaries who are above sixty‑five years of age or who are differently‑abled and have no other adult family member (16 to 65 years) listed in the ration card and are unable to visit the fair price shop, as permitted by the Central Government vide its circular dated 01.02.2018. Such beneficiaries are entitled to home delivery of foodgrains, and the States/UTs have been authorized to devise the procedure for supply to such beneficiaries at their homes or through authorized nominees., The fair price shop is defined in Section 2(4) of the National Food Security Act to mean a shop licensed to distribute essential commodities to the ration card holder under the Targeted Public Distribution System. Section 2(16) defines a ration card as a document issued by the State Government for purchase of essential commodities from the fair price shops. Section 2(23) defines the Targeted Public Distribution System as the system for distribution of essential commodities to ration card holders through the fair price shops. Section 12 mandates the State Governments to progressively undertake necessary reforms in the Targeted Public Distribution System, which include doorstep delivery of food grains to the outlets, obviously including fair price shops. Section 24 places the responsibility on the State Government for implementation and monitoring of schemes of various Ministries and Departments of the Central Government in accordance with guidelines, and for taking delivery of foodgrains from Central Government depots and delivering them to the doorstep of each fair price shop. The Food Security (Assistance to State Governments) Rules, 2015 envisage that the food grains delivered by the State Government to the fair price shops would be collected by the beneficiaries from the shops, as evident from Rule 9 which speaks of the visit by the entitled person to the shop to claim entitlement. Rule 2(f) defines intra‑state movement as the movement of food grains within a State from a designated depot to the doorstep of the fair price shop. Rule 2(g) requires the point of sale device to be installed and operated at fair price shops. Rule 3 obliges both the Central and State Governments to adhere to the time limits prescribed in the Public Distribution System (Control) Order, 2015 for allocation and delivery up to the fair price shops. Rule 5 casts a duty on the State Government to ensure delivery through its authorized agencies up to the doorstep of fair price shops. Clause 7(11) of the Targeted Public Distribution System (Control) Order, 2015 obliges the State Government to devise a suitable mechanism for transportation of foodgrains from the Corporation godowns to intermediate godowns and the doorstep of fair price shops. Clause 7(12) requires the State Government to furnish a quarterly statement of doorstep delivery to fair price shops. Clause 8(4) requires a monthly certificate confirming delivery of allocated foodgrains to the fair price shops. Clause 10 obliges the owner to distribute food grains to the ration card holders., Thus, the provisions of the National Food Security Act, the Rules framed thereunder, and the statutory Orders issued under the Essential Commodities Act envisage distribution of food grains to beneficiaries through fair price shops and at the fair price shops. Neither the Act nor the Rules nor the Orders contemplate actual delivery of food grains at the beneficiary’s doorstep, except in the limited exceptional cases noted earlier. However, there is no bar or prohibition for a State Government to provide an additional benefit of doorstep delivery of foodgrains to beneficiaries. Section 24(2)(b) of the Act obliges State Governments to ensure actual delivery or supply of food grains to entitled persons at the prices specified in Schedule I. Section 32 enables the Central or State Government to formulate other food‑based welfare schemes, provided they are funded from the State’s own resources. Therefore, delivering rations at the beneficiary’s doorstep falls within the authority and responsibility vested in the State Government under Section 24(2)(b) and Section 32 of the National Food Security Act., The next issue is whether the Government of National Capital Territory of Delhi (GNCTD), in implementing its scheme of doorstep delivery, can appoint new fair price shop owners or dealers by inviting tenders, thereby bypassing the existing framework. A fair price shop is defined in Section 2(4) of the National Food Security Act as a shop licensed to distribute essential commodities by an Order issued under Section 3 of the Essential Commodities Act. Section 3(2)(d) empowers the Central Government to issue an Order regulating the storage, transportation, distribution, disposal, acquisition, use or consumption of any essential commodity. The Targeted Public Distribution System Order, 2015, issued by the Central Government under Section 3 of the Essential Commodities Act, provides in Clause 9 that the State Government shall issue an Order under Section 3 of the Essential Commodities Act for regulating the sale and distribution of essential commodities. Licences to fair price shop owners are issued under that Order, and the State Order shall be notified and displayed on the web portal. Hence, the State Government has the prerogative to grant and rescind licences for establishment of fair price shops., Section 36 of the National Food Security Act states that the provisions of the Act, or the schemes made thereunder, shall have effect notwithstanding any inconsistency with any other law in force. The submission is that existing fair price shop owners licensed under the Essential Commodities Act have no vested right to continue receiving food grains, and that GNCTD may frame schemes to provide food grains at the doorstep. It is argued that the NFSA, being a special law concerning the right to food, would prevail over the Targeted Public Distribution System Order, 2015, which is issued under the Essential Commodities Act, a general law. Reliance is placed on Ashoka Marketing Ltd. (supra)., The Court notes that Section 22 of the National Food Security Act places an obligation on the Central Government to assist State Governments with expenditure incurred towards intra‑state movement, handling of foodgrains, and margins to be paid to fair price shop dealers in accordance with norms prescribed by the Central Government. The statutory scheme requires fair price shops to offer foodgrains to beneficiaries at fixed prices; they cannot sell at higher prices. Maintaining the financial viability of fair price shops is essential to prevent adulteration or diversion of foodgrains. The Targeted Public Distribution System Order, 2015, issued under the Essential Commodities Act, was framed after the NFSA came into force and therefore cannot be overridden by any provision or scheme under the NFSA. No entry in List‑II of the Seventh Schedule of the Constitution places distribution of food exclusively in the State domain; entry 33 of List‑III of the Seventh Schedule deals with trade and commerce in, and production, supply and distribution of foodstuffs, including edible oilseeds and oils. Consequently, a scheme framed by the GNCTD to implement the NFSA cannot violate the Essential Commodities Act, the NFSA, or the Orders and Rules made thereunder., The Targeted Public Distribution System Order, 2015 gives statutory recognition to the protection of the financial viability of fair price shop dealers. Clauses 9(5) to 9(9) require the State Government to issue licences keeping in view viability, ensure a reasonable number of ration card holders per shop, fix and periodically review the shop’s margin, and allow shops to sell commodities other than the food grains distributed under the Targeted Public Distribution System., The submission that the State Government is not concerned with the impact of appointing fresh fair price shop dealers under the impugned scheme, which would bypass existing shops and affect their financial viability, is rejected. Even if a large majority of beneficiaries have opted for the MMGGRY scheme, this would drive out many fair price shop owners. Without addressing the concerns of existing owners whose viability is statutorily protected, the GNCTD cannot proceed with the scheme as presently framed., The petitioners contend that the actions of the GNCTD are actuated by unfounded prejudice and bias. The GNCTD, in its notice, listed deficiencies in the existing system such as non‑issuance of commodity, supply of substandard or expired commodity, misleading beneficiaries, and shops being closed during official hours. The GNCTD planned to launch a new scheme, MMGGRY, to reform the system. No material or data was presented by Dr. Singhvi or Mr. Mehra to substantiate these findings. However, the record contains an analysis report of the NIC Central Team on OTP transactions of various fair price shops in March 2018 and file notings regarding a survey that led to suspension of licences of several shop owners for black‑marketing. While malpractices by some shop owners exist and require strict action, it is incumbent on the GNCTD to collect and collate substantiated complaints from beneficiaries before concluding that all shops are engaged in corrupt practices., The Court finds merit in the grievance of the petitioners that the actions of the GNCTD were actuated by unfounded prejudice and bias.

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