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id_586	1	Therefore, it cannot be concluded that the offences under Sections 116 and 118 of the Indian Penal Code are made out from the information furnished. However, the aforesaid provisions can be incorporated if there are allegations against the accused that would attract the offence under Section 120B. This is because, as per Section 120B of the Indian Penal Code, the punishment for criminal conspiracy (in case no express punishment is provided in the Indian Penal Code) is provided in the same manner as if the accused had committed the offence of abetment. Therefore, in such circumstances, if the accused is found to have committed criminal conspiracy to commit an offence for which no express punishment is provided in the Indian Penal Code, he is deemed to have committed the offence of abetment for the purpose of imposing punishment. Thus the same depends upon whether the offence under Section 120B of the Indian Penal Code is made out and I shall deal with the said question when considering the ingredients of Section 120B of the Indian Penal Code at a later part of this order., Another offence is under Section 506 which reads as follows: Section 506. Punishment for criminal intimidation: Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; if the threat is to cause death or grievous hurt, etc., and if the threat is to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. In Manik Taneja and Another v. State of Karnataka and Another (2015) Supreme Court Cases 423, paragraphs 11 and 12, it was observed as follows:, Section 506 of the Indian Penal Code prescribes punishment for the offence of criminal intimidation. Criminal intimidation, as defined in Section 503 of the Indian Penal Code, is as under: Section 503. Criminal intimidation. Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom the person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation: A threat to injure the reputation of any deceased person in whom the person is interested is within this section. A reading of the definition of criminal intimidation would indicate that there must be an act of threatening another person, causing injury to the person, reputation or property of the person threatened, or to the person in whom the threatened person is interested, and the threat must be with the intent to cause alarm to the person threatened or to cause that person to do an act which he is not legally bound to do, or omit to do an act which he is legally entitled to do. In the instant case, the allegation is that the appellants have abused the complainant and obstructed the second respondent from discharging his public duties and spoiled the integrity of the second respondent. It is the intention of the accused that has to be considered for deciding whether what he has stated comes within the meaning of criminal intimidation. The threat must be with intention to cause alarm to the complainant to cause that person to do or omit to do any work. Mere expression of any words without any intention to cause alarm would not be sufficient to bring this section into application. Material must be placed on record to show that the intention is to cause alarm to the complainant. Thus, it is evident that unless the threat, which is the subject matter of the offence, is conveyed to the victim or was intended to be conveyed to him so as to cause alarm in the mind of the complainant or the victim, it cannot be treated as criminal intimidation., In this case, the offence of Section 506 is seen incorporated in Annexure‑9 based on certain utterances made by the petitioner while he was in his own residence. The utterances were made while seeing the images of five police officers in a video. The manner and circumstances in which the utterances were made would not amount to any criminal intimidation, as under no stretch of the imagination can it be concluded that the same was intended to be conveyed to the victims, or in fact conveyed to them. The statements cannot be treated as made with the intention to cause alarm to the minds of the police officers. The utterances were made only to the images of the alleged victims and not to them directly, and there was nothing to indicate that they were intended to be conveyed to the said victims. Moreover, the materials showing the intention of the petitioner to cause an alarm in the minds of the police officers and to compel or persuade them to do an act or omit to do something are also lacking. It is pertinent to note that the utterances were allegedly made on 15 November 2017, and the crime was registered in the year 2022, when the said Balachandra Kumar made revelations in this regard. In the absence of specific allegations in Annexure‑11 or Annexure‑10 complaint, which form the basis of Annexure‑9, it cannot be concluded that the offence under Section 506 is attracted., What remains is the offence under Section 120B of the Indian Penal Code. The punishment for the offence under Section 120B of the Indian Penal Code in respect of criminal conspiracy to commit an offence with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in the Indian Penal Code for punishment for such conspiracy, be punishable in the same manner as if he had abetted such offence. Thus, the punishment of Section 120B depends upon the offence for which the conspiracy was hatched. While registering Annexure‑9 First Information Report, no specific offence for which conspiracy is allegedly hatched is mentioned. Other than Section 120B, the offences alleged are under Sections 116, 118 and 506 of the Indian Penal Code. Since the aforesaid offences are not made out from the information furnished, the petitioner contends that the offence of conspiracy would not lie independently. Subsequently, a further report was submitted by the police incorporating the offence under Section 302 of the Indian Penal Code. The learned Senior Counsel argued that because the conspiracy alleged in Annexure‑9 is in respect of the commission of offences under Sections 116, 118 and 506, which are not attracted, it cannot be concluded that it reveals any cognizable offence. In such circumstances, the registration of Annexure‑9 was illegal, and subsequent inclusion of Section 302 of the Indian Penal Code cannot improve the case of the police., I am not inclined to accept that contention. What is relevant is not the offences mentioned explicitly in the First Information Report but what is revealed from the contents of the information furnished therein. Merely because a particular provision of the offence was omitted in the First Information Report, it cannot be concluded that the offence is not attracted. If the contents of the First Information Report reveal the commission of a particular offence, non‑mentioning the provision is not material and does not adversely affect the prosecution case. In Bijumon v. State of Kerala and Another (2018) Kerala Law Times 627, the Court held that the fact that the penal provision of Section 295A of the Indian Penal Code is not mentioned in the First Information Report is of little consequence. Mentioning a wrong provision of law in the First Information Report should not be a ground for rejecting the prosecution case or for granting anticipatory bail. The question is whether the allegations levelled against the accused would constitute an offence and, if so, which penal provision is attracted. At any stage of the investigation, the investigating officer could correct a mistake in mentioning a particular section of offence. Even after the charge sheet is filed, the Court may alter or add to any charge at any time before judgment is pronounced, as provided in Section 216 of the Code of Criminal Procedure. Section 215 of the Code provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. An error in mentioning the section of offence in the First Information Report would not definitely cause prejudice to the accused and would not entitle him to the grant of anticipatory bail (see Prakash v. State of Kerala, 2009 Supreme Court Cases)., Thus, the question to be considered is whether the offence under Section 120B of the Indian Penal Code is attracted, even if the other offences mentioned in the First Information Report are not attracted. Section 120B deals with criminal conspiracy. Section 120A of the Indian Penal Code defines criminal conspiracy as follows: Section 120A. Definition of criminal conspiracy. When two or more persons agree to do, or cause to be done, (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: PROVIDED that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object. The careful reading of the definition, particularly the proviso, reveals that an agreement to commit an offence by itself is an offence. It is not necessary that some acts besides the agreement be performed for attracting the offence of criminal conspiracy. In other words, agreement to commit an offence by itself is an offence as defined under Section 120A of the Indian Penal Code and is punishable under Section 120B., The crucial question is whether the First Information Report contained an allegation revealing an agreement to commit an offence. The primary allegation in the First Information Report is based on some utterances made by the petitioner while he was sitting in his residence. Those utterances by themselves cannot be treated as material for attracting the offence of criminal conspiracy. For that purpose, an agreement or a design for the commission of a crime is required. When the contents of Annexures 9 and 10, along with the statements of Sri Balachandra Kumar produced as Annexures 11 and 12, are considered, they reveal an allegation that on 15 November 2017 the petitioners arrived at an agreement for causing harm to five police officers. A specific statement to that effect is contained therein. In my view, the offence of Section 120B of the Indian Penal Code is attracted not because of the utterances allegedly made by the petitioner, but because of the statement of Balachandra Kumar, which is also recorded in the complaint of the third respondent, that the accused have decided to cause harm to five police officers named therein. It is true that it does not specifically state the commission of any murder, but the agreement is apparently for causing physical harm to the police officers. The petitioner also reported that the hands of Sri Sudharsan, one of the police officers, would be chopped off. The learned Director General of Police contended that the utterances are the reflections of the agreement which they arrived at and intended to execute at a future point of time. Although the information does not contain details as to the nature of the agreement or the further steps taken, what is relevant is the information furnished, not the materials produced. The averments in the First Information Report and the related documents may constitute a cognizable offence of criminal conspiracy to commit an offence, as they refer to an agreement between the accused for committing an offence punishable with imprisonment for more than two years, including an intention to cause physical injuries such as chopping off hands., The position of law with regard to the offence defined under Section 120A, punishable under Section 120B, and its independent existence even in the absence of further steps in pursuance of a conspiracy, has been discussed in numerous decisions. In Nirmal Chandra De v. The King‑Emperor (AIR 1927 Cal 265), the Calcutta High Court observed: Criminal conspiracy consists in the agreement of two or more persons to commit an offence punishable by law. It is undoubtedly true that the law does not take notice of the intention or the state of mind of the offender and there must be some overt act to give expression to that intention. In Mulcahy v. The Queen [1868] 3 HL 306, Willes, J., observed: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable; when two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contractus, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. This dictum has been accepted as good law. The overt act in a case of conspiracy therefore consists in the agreement of the parties, and this is the view adopted by the Indian Legislature in the definition of “conspiracy” in Section 120A of the Indian Penal Code, where the proviso says that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. The definition excludes the agreement to commit an offence from the category of conspiracies that require a further act., In State of Madhya Pradesh v. Sheetla Sahai and Others (2009) Supreme Court Cases 617, the Supreme Court observed: Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, therefore, for the purpose of bringing the charge of criminal conspiracy read with the provisions of the Prevention of Corruption Act, must establish the offence by applying the same legal principles applicable to criminal misconduct. A criminal conspiracy must be put to action; mere thoughts, even if criminal, do not become punishable. The offence is said to be committed only when there is a concrete agreement to do or cause to be done an illegal act or an act which, although not illegal in itself, is done by illegal means. Its ingredients are (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; or (b) an act which is not illegal in itself but is done by illegal means. It is necessary to show a meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. While conspiracy is often hatched in secrecy and direct evidence may not be possible, the offence can also be proved by circumstantial evidence. In Kehar Singh and Others v. State (Delhi Administration) (1988) Supreme Court Cases 609 at 731, the Court quoted Russell on Crimes: The gist of the offence of conspiracy lies not in doing the act, or effecting the purpose, nor in attempting to do them, nor in inciting others, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge or discussion of the plan is not, per se, enough., In this case, Annexure‑9 First Information Report does not contain any substantiating material indicating the nature of the agreement or the stage of execution. However, it contains information as to the existence of an agreement to commit an offence punishable with more than two years. In such circumstances, no discrepancy or legal infirmity can be attributed to the registration of the First Information Report. The contention of the learned counsel for the petitioner that the registration of the First Information Report is a violation of Section 154 of the Code of Criminal Procedure is therefore liable to be rejected., The main prayer sought by the petitioner is to quash Annexure‑9 First Information Report, as he alleges that the offences alleged against him are not made out and that the registration of the case itself is with malafide intentions. To support these contentions, it is alleged that the third respondent, the first informant, interacted with Balachandra Kumar on three occasions: 2 October 2021, 16 November 2021 and 27 December 2021. Reliance upon Annexure‑15 series highlights that the fifth respondent, who ordered the registration of the crime based on Annexure‑10 complaint, does not have a clean track record in his service. The acquaintance of the fifth respondent with Balachandra Kumar is sought to be established by certain WhatsApp messages produced as Annexure‑17. The fact that the fifth respondent was inducted into the Special Investigation Team for further investigation in Crime Number 297/2017 immediately after the revelations made by Balachandra Kumar was also relied upon to substantiate the alleged malafide intention and concerted efforts of the third and fifth respondents to implicate the petitioner. On examining the petitioner’s contentions regarding malafide intent and the materials relied upon, I find no sufficient material produced by the petitioner to substantiate the same, apart from mere allegations. Although it was contended that the fifth respondent was acquainted with Balachandra Kumar, the only material is certain WhatsApp messages in which the fifth respondent was not a party; his name is merely referred to. The messages indicate that the fifth respondent is a family friend of the young singer recommended by Balachandra Kumar, but the contents cannot be accepted as material showing a close direct relationship. Therefore, we are not concerned with the alleged tainted past of the fifth respondent. The investigation is being conducted by the second respondent, and there are no allegations raised against him. Consequently, I do not find any reason to accept the counsel’s contentions, and even otherwise, the contentions cannot be treated as a valid ground for quashing the proceedings., In Umesh Kumar v. State of Andhra Pradesh (2013) Supreme Court Cases 591, the Supreme Court observed: The issue of malafide loses its significance if there is substance in the allegation made in a complaint moved with malice. In Sheo Nandan Paswan v. State of Bihar and Others (1987) All India Reporter 877, this Court held that a criminal prosecution, if otherwise justifiable and based upon adequate evidence, does not become vitiated on account of malafide or political vendetta of the first informant or complainant. In Parkash Singh Badal v. State of Punjab and Others (2007) Supreme Court Cases 1274, the Court held that the ultimate test is whether the allegations have any substance. An investigation should not be shut out at the threshold because a political opponent raises an allegation of commission of offence. In State of Andhra Pradesh v. Goloconda Linga Swamy and Another (2004) Supreme Court Cases 3967, the Court held that the material collected during investigation and evidence led in court decides the fate of the accused; allegations of malafide against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding (see also K. Karunakaran v. State of Kerala (2007) Supreme Court Cases 59). Thus, if there is some substance in the allegations and material exists to substantiate the complicity of the applicant, the case must be examined in its full conspectus and the proceedings should not be quashed merely because the case was initiated with malafide intent., In this case, I have already found that there are sufficient allegations contained in Annexure‑9 First Information Report and the documents on which it was registered, for attracting the offence of Section 120B of the Indian Penal Code. Therefore, the question of malafide loses its significance in view of the observations made by the Supreme Court., Another contention raised by the learned Senior Counsel for the petitioner relied upon the judgment of the Supreme Court in Lalita Kumari v. Government of Uttar Pradesh and Others (2014) Supreme Court Cases 1. In that judgment, a constitutional bench considered the circumstances under which a preliminary inquiry is warranted before registration of a First Information Report. Paragraph 120.6 enumerates the categories of cases in which a preliminary inquiry may be made: (a) matrimonial or family disputes; (b) commercial offences; (c) medical negligence cases; (d) corruption cases; (e) cases where there is abnormal delay or lapse in initiating criminal prosecution, for example, over three months delay in reporting the matter without satisfactory explanation. The learned Senior Counsel pointed out that one of the instances mentioned is abnormal delay of over three months in reporting. He contended that the alleged conspiracy took place on 15 November 2017, the revelation was made only in December 2021, and the crime was registered on 9 January 2022. He argued that registration of the First Information Report without a preliminary inquiry was not proper. I am of the view that the lack of any preliminary inquiry by itself cannot be a reason to quash the proceedings. The purpose of a preliminary inquiry is to allow the investigating officer to satisfy himself that an offence was indeed committed and the complaint was not false. It is true that the alleged conspiracy took place on 15 November 2017 and the crime was registered only in 2022 because the revelation was made in December 2021 and the victims became aware at that time. Therefore, the proceedings cannot be quashed on that ground. Moreover, although the revelation of Balachandra Kumar was made through visual media on 25 December 2021, his statements were recorded subsequently, and audio clips produced by him were examined before the First Information Report was registered. Hence, it was not a case where the report was filed merely upon receiving information; some inquiry was conducted before registration. In such circumstances, I find no merit in the counsel’s contention., Regarding the power of this Court to interfere in an investigation, the settled position of law is that it is very limited. In State of Haryana and Others v. Ch. Bhajan Lal and Others (1992) Supreme Court Cases 335, the Supreme Court framed guidelines for the exercise of the powers of the High Court in interfering with investigations. The guidelines, extracted from paragraph 104, illustrate categories of cases wherein such power could be exercised to prevent abuse of process or to secure the ends of justice: (1) Where the allegations made in the First Information Report or the complaint, even if taken at face value, do not prima facie constitute any offence or make out a case against the accused; (2) Where the allegations in the First Information Report and other accompanying materials do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code of Criminal Procedure except under an order of a Magistrate within the purview of Section 155(2); (3) Where the uncontroverted allegations in the First Information Report or complaint and the evidence collected do not disclose the commission of any offence and make out a case against the accused.
id_586	2	Where the allegations in the First Information Report do not constitute a cognizable offence but constitute only a non‑cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code of Criminal Procedure., Where the allegations made in the First Information Report or complaint are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; where there is an express legal bar engrafted in any provision of the Code or the concerned Act under which a criminal proceeding is instituted; and where a criminal proceeding is manifestly attended with mala fide intent or is maliciously instituted with an ulterior motive for vengeance or personal grudge, the guidelines numbered 5 and 7 are attracted., The learned counsel for the petitioner places reliance upon those guidelines and contends that they are attracted in the facts of this case. I do not find any merit in the said contentions. It is true that, at the moment, there are no materials substantiating the aforesaid allegations. While considering the bail applications submitted by the accused, the High Court observed in the order that the materials placed on record do not attract the offences alleged against the petitioner. However, the High Court clarified that those observations were only to consider the question of bail. The present question is whether interference in the investigation is warranted by invoking the power under Section 482 of the Criminal Procedure Code. To consider the invocation of that power while interfering with the First Information Report, the relevant consideration can only be the allegation contained in the First Information Report and not the materials placed in support of the same. The materials substantiating the allegations are to be collected through the process of investigation, which must commence based on the registration of the First Information Report. Therefore, the observations made by the High Court in the bail order cannot be relied upon to consider an application under Section 482 of the Criminal Procedure Code., Even if the allegations reveal a doubtful case for making out the offences, at the stage of the First Information Report the benefit of the doubt should go in favour of the investigation and not to the accused. Interference at this stage would foreclose all opportunities for the police to collect materials in support of the allegations. The duty of the court is not confined to ensuring that no innocent person is punished but also to ensuring that proper punishment is granted to the real culprits. A balance must be struck, and a proper balancing can be made in this case by allowing the investigation to continue., Similarly, another contention is that the criminal proceedings are manifestly attended with mala fide intent, and therefore guideline No. 7 in Bhajan Lal's case is applicable. I have already entered a finding against the petitioner, and hence the said contention of the petitioner is not sustainable., Even otherwise, the power of the High Court under Section 482 of the Criminal Procedure Code in the matter of interference at the stage of the First Information Report is very limited. In S.M. Datta v. State of Gujarat [(2001) 7 SCC 659], the Supreme Court of India observed that criminal proceedings, in the normal course of events, should not be scuttled at the initial stage unless the same amounts to an abuse of the process of law. Quashing of a complaint should be an exception and a rarity. The genuineness of the averments in the First Information Report cannot be gone into with mathematical exactitude; the document must be read as a whole to decipher the intent of the maker. The First Information Report needs to be considered, and if it discloses an offence even broadly, courts are barred from usurping the jurisdiction of the police because the two organs of the State operate in specific spheres of activity., Applying the principles laid down in the above precedent to the facts of this case, the petitioner could not make out a case warranting interference at this stage. Although the power of the High Court under Section 482 of the Criminal Procedure Code is wide, it can be invoked for quashing a First Information Report only in the rarest of rare cases. This case does not fall in that category, and therefore I do not find any circumstances warranting interference. The prayer for quashing the First Information Report is hereby declined., The next question that arises is the alternative prayer sought by the petitioner: transfer of investigation of the case to the Central Bureau of Investigation to ensure a fair, impartial and truthful investigation. The main reasons highlighted by the petitioner are: (a) the allegation that the petitioner is part of a conspiracy to do away with some police officers, including a Director General of Police, which may influence senior police officers; (b) the first informant, who is the third respondent and also the investigation officer in Crime No. 297/2017, has a personal grudge against the petitioner; (c) the third respondent and Balachandra Kumar had mutual discussions on three occasions before registration of the crime; (d) immediately after registration, a search was conducted jointly by the special investigation team (including the third respondent) and the investigation officer, allegedly with malafide intention to create false evidence; (e) personal acquaintance of Balachandra Kumar with the fifth respondent, who ordered registration of the crime and was inducted as a member of the special investigation team; and (f) the registration of the crime in 2022 regarding a conspiracy alleged to have been hatched on 15‑11‑2017, with no evidence of further steps being taken., The learned senior counsel for the petitioner places reliance upon the decision of the Supreme Court of India in Babubhai v. State of Gujarat and Others [(2010) 12 SCC 254], wherein it was observed that a fair trial and a fair investigation are part of the constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India., Before going into the merits of the aforesaid contention, the crucial aspect to be considered is the maintainability of the relief of transfer of investigation to the Central Bureau of Investigation. The prayer for transfer is sought in a petition under Section 482 of the Criminal Procedure Code invoking the inherent powers of the High Court. In State of Punjab v. Davinder Pal Singh Bhullar and Others [(2011) 14 SCC 770], the Supreme Court of India observed that the rule of inherent powers has its source in the maxim \quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa, esse non potest\ and that the court cannot pass an order bypassing the procedure prescribed by law. The High Court can issue appropriate directions by invoking powers under Article 226 of the Constitution of India., Even if the prayer for transfer of investigation to the Central Bureau of Investigation is not maintainable under Section 482 of the Criminal Procedure Code, nothing precludes the High Court from issuing appropriate directions in this regard by exercising powers under Article 226 of the Constitution of India., The next question is whether the petitioner, being an accused, has a right to seek such a prayer. In Sivakumar E. v. Union of India and Others [(2018) 7 SCC 365], the Supreme Court of India held that an accused named in the First Information Report, who otherwise has no right to be heard at the stage of investigation, cannot claim that a direction to transfer investigation to the Central Bureau of Investigation is a nullity. In Sanjiv Rajendra Bhatt v. Union of India and Others [(2016) 1 SCC 1], it was observed that the accused has no right concerning the manner of investigation or mode of prosecution. Similarly, in Romila Thapar and Others v. Union of India and Others [(2018) 10 SCC 753], the Supreme Court reiterated that the accused cannot ask for changing the investigating agency or for a court‑monitored investigation. The view was again reiterated in Arnab Ranjan Goswami v. Union of India and Others [(2020) 14 SCC 12]., Thus, from the principles laid down by the Supreme Court of India, it is evident that the petitioner/accused does not have any right to seek a change of investigating agency. The reason is that, during the course of investigation, the accused does not have any right to be heard. In Romila Thapar's case there is a dissenting judgment favouring transfer, but even there the finding is that such a direction ought to be issued by invoking the powers of the Supreme Court under Article 142 of the Constitution of India, which are not available to the High Court., The circumstances under which transfer of investigation can be ordered by the High Court while exercising its constitutional powers have been considered by the Supreme Court of India in State of West Bengal v. Committee of Protection of Democratic Rights [(2010) 3 SCC 571]. The Court emphasized that, despite the wide powers conferred by Articles 32 and 226 of the Constitution, courts must exercise great caution and that an order directing the Central Bureau of Investigation to conduct an investigation should be passed only in exceptional situations where it is necessary to provide credibility, instil confidence, or where the incident has national or international ramifications., The learned counsel for the petitioner also relied upon K.V. Rajendran v. Superintendent of Police, CBI and Others [(2013) 12 SCC 480], where the Supreme Court of India observed that transfer of investigation from the State investigating agency to an independent agency like the Central Bureau of Investigation may be exercised only in rare and exceptional cases, such as when high officials of the State are involved or when the accusation is against top officials of the investigating agency. The counsel further relied upon Divine Retreat Center v. State of Kerala [(2009) 6 SCC 65], which held that neither the accused nor the complainant nor the informant is entitled to choose their own investigating agency., The learned Director General of Police placed reliance upon paragraph 13 of K.V. Rajendran's case, which states that transfer of investigation to an independent agency must be in rare and exceptional cases where the court finds it necessary to do justice between the parties, to instil public confidence, or where the State police investigation lacks credibility. According to the DGP, no such circumstances exist in this case, and a fair and unbiased investigation is ongoing., When the necessity to refer the investigation to another agency is considered, the main contention of the petitioner is the alleged interest of the police in the case because the allegation involves a conspiracy to do away with police officers, including a senior officer. The reliance on K.V. Rajendran's observations is not sustainable because that case involved police participation in the commission of the crime, which is not the situation here. Mere allegation of a conspiracy against police officers does not automatically imply police interest that would affect their neutral status. The Committee for Democratic Rights case categorically held that transfer of investigating agency cannot be made as a routine merely because a party has levelled some allegation against the police. In the present case, I do not find sufficient force in the petitioner's allegations to conclude that a proper and fair investigation is impossible. The petitioner has alleged collusion between the third respondent and Balachandra Kumar before registration of the crime, but there are no materials substantiating these allegations. Documents indicating a suspected blemish in the service record of the fifth respondent are not relevant. The investigation is being conducted by the second respondent, and no allegations have been raised against him. In the absence of any material indicating influence by superior officers, an order for transferring the investigation to another agency cannot be made. Although the registration of the crime based on an incident that occurred on 15‑11‑2017 may show some over‑zealousness, unless it is tainted with malafide intent, no interference can be made. I could not find any materials revealing any ulterior motive or malafide conduct by the investigating agency, and therefore I do not find any reason to allow the prayer for transfer of investigation., In the result, this Criminal Miscellaneous Application is dismissed. It is made clear that the findings and observations made in this order were only to ascertain whether the petitioner has made out a case for invocation of the powers of the High Court under Section 482 of the Criminal Procedure Code at this stage. None of the findings and observations in this order shall preclude the petitioner from raising his contentions at appropriate stages and invoking his remedies for challenging the final report, if any, filed against him in this case.
id_587	0	Present: The Hon'ble Justice Rai Chattopadhyay. Criminal Appeal No. 106 of 2010. Sanjoy Mondal v. The State of West Bengal. Amicus curiae: Mr. Somopriyo Chowdhury. For the State: Mr. Pravash Bhattacharyya. Hearing concluded on 15 March 2023. Judgment on 23 August 2023. Rai Chattopadhyay, J., The appellant, having been convicted and sentenced in Sessions Trial No. 187/March/09 under Section 324 of the Indian Penal Code, has preferred the instant appeal. The impugned judgment dated 31 October 2009 and the order of sentence dated the same are challenged., The appellant was found guilty of an offence under Section 324 of the Indian Penal Code and was sentenced to rigorous imprisonment for two years and a fine of Rs 5,000, with default leading to an additional three months of rigorous imprisonment. The de facto complainant lodged a First Information Report on 1 July 2004, alleging an incident on the same date at 9.30 p.m. The octogenarian mother of the de facto complainant was preparing papad in hot mustard oil at a gathering. The appellant allegedly asked for the same on credit, was refused, and then poured hot oil over the victim’s head, causing burn injuries over the body. The victim was immediately admitted to Anupnagar Hospital., Based on the FIR, Samserganj Police Station registered Case No. 63/04 dated 01.07.2004 under Section 326 of the Indian Penal Code. After investigation and submission of a charge sheet, the trial proceeded under Sections 324 and 307 of the Indian Penal Code, culminating in the impugned judgment sentencing the appellant for the offence under Section 324., The propriety of the judgment has been challenged in this appeal. Despite sufficient opportunity, no counsel appeared for the appellant. Consequently, the Additional District and Sessions Judge, 4th Functional Trial Court, Jangipur, Murshidabad appointed Mr. Somopriyo Chowdhury as amicus curiae to assist the court. The efforts of Mr. Chowdhury are acknowledged., The prosecution examined seven witnesses: the de facto complainant (Prosecution Witness 1), the victim (Prosecution Witness 2), co‑villagers (Prosecution Witness 3 and Prosecution Witness 6), a doctor (Prosecution Witness 5), and investigating officers (Prosecution Witness 7). The victim’s testimony and the doctor’s medical report are material to establish that the victim suffered injuries due to hot oil., The victim testified that when she asked the appellant to pay some outstanding dues, he became angry, abused her, and poured hot mustard oil on her head. Prosecution Witness 5, the doctor, examined the victim and reported burn injuries covering the back of both upper extremities, the front and back of the chest, amounting to approximately 36 percent of the body. The doctor opined that the injuries were caused by the pouring of hot oil., The prosecution presented the above ocular evidence, which it claims is beyond reasonable doubt. However, the evidence of Prosecution Witness 3 and Prosecution Witness 6 is counter‑productive. Prosecution Witness 6 was declared hostile, and Prosecution Witness 3 stated that the burn was due to an accident. The involvement of the appellant can be inferred only from the testimonies of Prosecution Witness 1 and Prosecution Witness 2. Prosecution Witness 1 is not an eye witness and was not interrogated by police before testifying, making his evidence unreliable. Consequently, the trial court had to rely primarily on the victim’s testimony., The victim’s evidence lacks sufficiency regarding the appellant’s specific and overt acts. While she alleges that the appellant, infuriated by her demand for outstanding dues, poured oil on her, there is a substantive lack of clarity about the time, place, and manner of the alleged occurrence, creating reasonable doubt about the appellant’s culpable intention and action. No other witness corroborates the victim’s version., It is well settled that the court may base its judgment on the testimony of a single witness, particularly the victim, provided the evidence is unimpeachable, truthful, and sufficient to answer all questions a prudent person might have. In this case, the victim’s evidence does not inspire confidence due to missing links, insufficiency, non‑specificity, and lack of coherence. The trial court erred in relying solely on her testimony to find the appellant guilty. The finding that the appellant poured hot oil from the victim’s utensils is baseless and imaginary, as none of the witnesses, including the victim, specified the manner of the incident., Therefore, the impugned judgment cannot be sustained, and the appeal merits success. Criminal Appeal No. 106 of 2010 challenging the judgment dated 31 October 2009 in Sessions Trial No. 187/March/09 before the Additional District and Sessions Judge, 4th Functional Trial Court, Jangipur, Murshidabad is allowed. The impugned judgment and order dated 31 October 2009 are hereby set aside., The appellant is found not guilty in Sessions Trial No. 187/March/09 before the Additional District and Sessions Judge, 4th Functional Trial Court, Jangipur, Murshidabad. He is to be immediately acquitted and released from all bail bonds., With the above directions, this appeal, Criminal Appeal No. 106 of 2010, is disposed of along with any application, if any., An urgent certified photocopy of this judgment, if applied for, shall be given to the parties upon compliance with requisite formalities. (Rai Chattopadhyay, J.)
id_588	0	Criminal Revision No. DLSE01-000285-2014 Revisionist Versus State NCT of Delhi Respondent Instituted on: 10.11.2014 Reserved on: 27.09.2021 Pronounced on: 12.10.2021, By way of the revision, the revisionist (father of the deceased) takes exception to the order dated 13.07.2012, passed by the Learned Metropolitan Magistrate, South District, New Delhi in case bearing FIR No. 293/2008, under section 302 of the Indian Penal Code, Police Station Defence Colony, whereby the Learned Magistrate dismissed the Protest Petition filed by the revisionist/complainant and accepted the cancellation report filed by the concerned Investigating Officer., Brief facts, crime scene and expert opinions as noted by the Learned Magistrate in the impugned order are not in dispute and are reproduced for the sake of convenience., The factual matrix of the case is that on 10.09.2008 information was received regarding the lying of a dead body of a girl at premises No. 69 E/1 Gautam Nagar, New Delhi, for which DD No. 14 was recorded at Police Post Gulmohar Park. On receipt of this information Inspector O. P. Sharma, Station House Officer, Defence Colony reached the spot, i.e., 69 E/1 Gautam Nagar, New Delhi, where Sub‑Inspector Arvind, Assistant Sub‑Inspector Tulsi Bahadur, Sub‑Inspector Sangwar and Constable Gurdeep were already present. At the first floor of that house there are rooms on the right side of the entrance floor. In the extreme last room there was one table and one bed (diwan) lying opposite to the gate. On the right side of the room two beds (diwan) were lying adjacent to each other. Two tables were also lying adjoining the diwan in different directions. On these adjoining diwan the dead body of a young girl was lying, who was identified as Ms. ___, whereas the other edge was found struck/tied around one leg of the table, lying adjacent to the said bed. Some scratch marks were seen on the neck of the deceased. On physical inspection of the dead body some blood was found to have oozed out from the private part and spread up to the underneath of the bed sheet. Some words were found written on the left palm of the deceased. The deceased was found wearing brown colour underwear and a white top. One blue colour multishade dupatta around the belly and one golden colour chain on the neck of the deceased were also found present., One Ms. Shakshi was present at the spot and her statement was recorded. Ms. Shakshi stated that in one flat five girls were residing in one room—she, one Razzi, and another—and in the other room one Beloroi and Priyanka were residing. There was one main door for both these rooms and all of them had a key to the main door. At about 9.15 she left for her institute. She was sleeping at that time and in the adjoining room Priyanka was sleeping. At about 4.00 pm she came to her room, opened it, entered and saw a body lying on the bed covered with the bed sheet. She asked the person to get up but she did not move. She removed the bed cover and found that the body was stiff. She was terrified, ran out and informed the landlord. The matter was reported to the police and a case under section 302 of the Indian Penal Code was registered., There was only one entry/exit gate providing access to both these rooms from the staircase. The gate has an inbuilt lock and all the five occupants had their separate key of the said lock, while the sixth key was kept by the landlord, Shri Sanjay Sharma. During the course of investigation all the suspected persons were interrogated and their call details were analyzed. On scrutiny of the mobile phone of the deceased it surfaced that she was in frequent touch with two boys, namely Avinash Kumar and Dushyant, who were thoroughly interrogated., During the course of investigation the case file was submitted to the Department of Forensic Medicine, Maulana Azad Medical College for its opinion as to whether it is a case of homicide or suicide. The matter was examined by Dr. Anil Aggarwal, Professor at Maulana Azad Medical College, who after detailed examination submitted a report stating that it is a case of suicide and not homicide. The matter was also referred to the Office of the Director of Medico‑Legal Institute, Bhopal. A detailed report was submitted by Dr. D. K. Satpathy, Director, Medico‑Legal Institute, Bhopal, wherein he also opined that it is a case of suicide and not homicide. Ultimately a cancellation report was filed., While accepting the cancellation report and thereby dismissing the protest petition filed by the revisionist, the Learned Magistrate inter alia observed as follows: It was a case of self‑strangulation in a lying down position. The photographs coupled with the expert opinion leave no doubt that it was a case of suicide. The ligature mark is situated about the thyroid cartilage with obliquity, incomplete with knot, with evidence that the body was moved downwards. The ligature mark is oblique at the sides. The ligature mark has slipped in an upward direction producing abrasions. The abrasions are a result of friction due to a metallic chain. As the body moved downwards, the ligature material (mobile charger cord) in the metallic chain moved upward and caused the injury. The wrinkles/folds on the bed sheet, especially around the heel region, occurred as the body moved downwards; pressure was exerted. On the heel region there is a depression and just below it there is heaping, again indicating that the body moved downwards giving this effect. The top has moved upward with a wrinkling effect exposing the whole abdomen and lower part of the chest. The bed sheets do not have any other disturbance or creases which may be indicative of involvement of another person. Accordingly, the cancellation report stands accepted. I find no merits in the protest petition and no reason to continue with the matter., The revisionist is aggrieved with the order of the Learned Trial Court and assailed the impugned order on various grounds which can be summarized as follows: the impugned order is bad in law, resulting in a grave miscarriage of justice; the Learned Magistrate ignored material available on record while passing the impugned order; the Learned Magistrate failed to appreciate several loopholes in the police investigation as the cancellation report was clandestinely silent on the injuries seen on the body of the deceased; the Learned Magistrate failed to appreciate that blood was oozing out of the private parts of the deceased, suggesting that she was subjected to rape before she was brutally murdered; the Learned Magistrate failed to appreciate that the scene of crime indicated violence in the room as the earphone of the deceased was found broken, indicating that she was subjected to physical assault; the Learned Magistrate failed to consider the opinion of Truth Lab, Hyderabad, which categorically indicated that the deceased died a homicidal death by ligature strangulation; the death cannot be caused by self‑strangulation as a person shall lose consciousness after applying initial force; there was an inordinate delay of fifteen days in sending the samples to the Forensic Science Laboratory and they were examined at the Forensic Science Laboratory after more than two months; the investigation in the present case is completely biased as the Investigating Officer attempted to scuttle the investigation into the gruesome rape and murder of the deceased; the concerned doctors who gave expert opinion were provided with limited materials., Learned Counsel for the revisionist argued on the grounds mentioned in the instant revision petition. He vehemently argued that the Learned Magistrate committed a grave error in passing the impugned order as it was passed hastily, ignoring the factual matrix and materials available on record. He further argued that the revisionist had a reasonable apprehension from the beginning that the Investigating Officer was not conducting the investigation as per law. He argued that the impugned order is completely silent on the issues raised by the revisionist in the protest petition preferred against the cancellation report. On the strength of these arguments, the revisionist seeks setting aside of the impugned order., Per contra, the Learned Additional Public Prosecutor for the State vehemently argued that there is no infirmity in the impugned order and that the Learned Magistrate, for the right reasons, accepted the cancellation report and dismissed the protest petition. He further argued that the impugned order was passed after considering all the facts and circumstances of the present case. He submitted that the Learned Magistrate rightly observed that there is no merit in the protest petition as the objections raised by the revisionist were frivolous. It was submitted that the present revision petition is misconceived and therefore liable to be dismissed., I have heard rival contentions of the parties and perused the record., In the matter of Taron Mohan v. State & Anr, 2021 SCC OnLine Del 312, Honourable Delhi High Court has observed as under:, The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 of the Code of Criminal Procedure gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding, inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence., Further, Honourable Apex Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others, 2015 (3) SCC 123, observed as under: Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non‑consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 of the Code of Criminal Procedure is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with the decision in exercise of their revisional jurisdiction. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court’s order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis., Therefore, in view of the settled position of law, this court in its revisional jurisdiction is not expected to substitute its own view with that of the Learned Trial Court unless the order passed by the Learned Trial Court suffers from jurisdictional error or patent infirmity or illegality. In the instant case, as evident from the record, the Learned Magistrate, while narrating in detail the facts, crime scene and expert opinion, passed a well‑reasoned detailed order, thereby accepting the cancellation report while brushing aside the protest petition of the revisionist, and therefore this court cannot and ought not substitute its own view with that of the Learned Magistrate while exercising its revisional jurisdiction., Further, the opinion of as many as three different experts is there, conclusively opining that it is a case of suicide by partial hanging while ruling out the possibility of any foul play. It is also evident from the record that one of the experts, Dr. Millo Tabin, Additional Professor, Department of Forensic Medicine, All India Institute of Medical Sciences, discarded the report of Dr. M. Narayana Reddy, MD (Forensic Medicine), Medico‑Legal Consultant, M/s Truth Labs, Hyderabad, with sound logic and reasoning. Therefore, in the facts and circumstances of the present case, I am of the view that there is no infirmity in the impugned order. Learned Counsel for the revisionist failed to point out any patent illegality, infirmity or jurisdictional error in the impugned order and therefore the present petition is liable to be dismissed., This court understands the pain of a wailing father. However, the court is not a cure‑all. Some wounds are better left unattended to be ministered by nature with an ointment of time. The court cannot, however, administer a placebo to the revisionist in the name of a panacea., With these observations, it is held that there is no patent illegality, impropriety or jurisdictional error in the impugned order. Accordingly, the revision petition stands dismissed., Trial Court Record be sent back to the Learned Trial Court along with a copy of this judgment. The revision file be consigned to the Record Room after due compliance. Announced in open Court on 12th October, 2021 (Anuj Agrawal) Additional Sessions Judge‑05, South East, Saket Courts, New Delhi.
id_589	0	Date of Decision: 4th June 2021. CS(OS) 262/2021 & Interim Applications Nos. 6904/2021, 6906/2021. Through: Mr. Deepak Khosla, Advocate for plaintiffs along with Ms. Juhi Chawla Mehta, Plaintiff No. 1 and Mr. Veeresh Malik, Plaintiff No. 2 versus Through: Mr. Tushar Mehta, SGI with Mr. Amit Mahajan, CGSC, Mr. Kanu Aggarwal and Mr. Dhruv Pande, Advocates for Mr. Anurag Ahluwalia, CGSC with Mr. Abhigyan Siddhant and Mr. Nitnem Singh Ghuman, Advocates for D-7/Indian Council of Medical Research, Mr. Arjun Mitra, Advocate for D-23/Indraprastha Institute of Information Technology Delhi, Mr. Kapil Sibal, Senior Advocate with Mr. Manjul Bajpai and Mr. Shashwat Bajpai, Advocates for D-25, D-26, D-27 and D-29/Cellular Operators Association of India. Interim Application No. 6905/2021 under Section 149 of the Code of Civil Procedure., The plaintiffs have affixed Court fees of Rs.1,950 on the plaint on the ground that they intend to challenge the Court Fees Act. They argue that if the justice dispensation system requires around 15‑20 years for settlement of a suit, the Delhi High Court has lost the moral as well as legal right to require Court fees to be paid upfront at the beginning of the suit. They further contend that the original intent of the Act was to recoup the costs for administration of justice, whereas the present system results in an inflow of fees far exceeding the amount spent by the State on providing the infrastructure to dispense justice., Relevant portion of the application is reproduced hereunder: That the suit has been filed by affixing Court fees of Rs.1,950 for the present, and the plaintiffs/applicants seek time to deposit the balance, if any. That it is also their intent to challenge the Court Fees Act on the grounds, inter alia, that if the justice dispensation system requires around 15‑20 years for settlement of a suit, it has lost the moral as well as legal right to require the Court fees to be paid upfront at the beginning of the suit. That it is also their intent to challenge the Court Fees Act in terms of the original intent of the Act being to recoup the costs for administration of justice, whereas the present system is such that the inflow of fees far exceeds the amount spent by the State on providing the infrastructure to dispense justice. That under these circumstances, if the Court fee is found short, this Delhi High Court may be pleased to record the undertaking of the plaintiffs to pay whatever be the appropriate Court fee within four weeks of this Delhi High Court granting time to do so, or within four weeks of losing their challenge to the Court Fees Act, whichever be later., In view of the aforesaid facts and circumstances, it is prayed that the Delhi High Court may be pleased to: (a) Allow this application and grant appropriate time to the plaintiff to pay the full Court fees as may be applicable to the matter (if the Court fees paid at all be short). (b) Allow that the time to be fixed by this Delhi High Court be fixed keeping in mind the challenge to be raised to the Court Fees Act., Plaintiffs Submissions: The plaintiffs seek time to pay the Court fees under Section 149 read with Section 148 of the Code of Civil Procedure because of COVID‑19 constraints and Plaintiff No. 1’s visit to South Africa on or around 26th May. Since the quantum of Court fees quantified by the plaintiffs in paragraph 147 of the plaint (Rs.12,210) may be called into question, the plaintiffs are ready to immediately file elaborate written submissions on this aspect, if required by this Delhi High Court. Without this becoming an issue at this stage, and subject to their rights being permitted by this Delhi High Court to stand preserved, the plaintiffs undertake to pay whatever Court fees is required by the Registry under directions of this Delhi High Court after reading the written submissions to be filed herein, in the time to be stipulated by this Delhi High Court. This Delhi High Court, while allowing the application and granting deferment for whatever period of time it deems fit, may make it clear that the quantum of Court fees is yet to be decided, thereby allowing fair opportunity to the plaintiffs to present their arguments on this point in due course. Nonetheless, if this Delhi High Court wishes, the plaintiffs agree to pay whatever Court fees may be directed, subject to preservation of all their rights and contentions., Findings: The plaintiffs have valued the suit for purpose of jurisdiction at Rs.2 crore. The law is well settled that the valuation of the suit for the purpose of jurisdiction and Court fees has to be the same. In that view of the matter, the plaintiffs are liable to pay Court fees of Rs.1,97,544 on the plaint. As such, there is a deficiency of Court fees of Rs.1,95,594 by the plaintiffs. Section 149 of the Code of Civil Procedure empowers this Delhi High Court to extend the time to pay the deficient Court fees. However, the challenge sought by the plaintiffs into the validity of the Court Fees Act is not permissible under Section 149. As such, no case for determination of the Court fees amount is made out. The application is misconceived, frivolous and unsustainable. The law with respect to valuation and computation of Court fees is well settled. The plaintiffs have taken a stand not to pay the Court fees in utter disregard of well‑settled law. All the objections raised by the plaintiffs to the payment of Court fees are hereby rejected. The application is partially allowed and, in the interest of justice, the plaintiffs are granted one week to deposit the deficit Court fees of Rs.1,95,594., Interim Application No. 6909/2021 under Section 80(2) of the Code of Civil Procedure: The plaintiffs are seeking dispensation from issuing notice to the State entities under Section 80(1) of the Code of Civil Procedure on the ground that it is an empty formality. Relevant portion of the application is reproduced hereunder: That in any case, all the State entities have been served with this suit prior to filing of the same, the suit itself being fair notice, and yet, they have not appeared before this Delhi High Court, this itself being their waiver to object to grant of interim relief. That under these circumstances, it is humbly prayed that the empty formality of issuance of notice may be dispensed with in exercise of this Delhi High Court’s power under Section 80(2) of the Code of Civil Procedure., It is therefore most respectfully and humbly prayed that this Delhi High Court may be pleased to: (i) Exercise its power under Section 80(2) of the Code of Civil Procedure and dispense with the empty formality of issuance of notice to State entities under Section 80(1) of the Code of Civil Procedure., Plaintiffs Submissions: Section 80(2) empowers this Delhi High Court to waive the requirement of prior notice on State defendants and/or prior 60‑day wait, subject to the caveat that it shall not grant relief in the suit, whether interim or otherwise, except after giving the State defendants a reasonable opportunity of showing cause in respect of the reliefs prayed for in the suit. Since the 5G roll‑out has not actually happened, though equally damaging trials involving the human population have started (which is not the same as doing trials on pigs or rats, or in an empty Thar Desert, or on the employees of the private defendants) – so that not even one single human life is lost by these trials, the plaintiffs are agreeable if this Delhi High Court, while waiving the requirement of Section 80(1) of the Code of Civil Procedure, grants fair opportunity to the State defendants to show cause as to why no interim relief be granted, which, in any case, is sought against the private defendants and not against the State defendants. In any case, all the State defendants have been served with the suit and have appeared today, which constitutes compliance with the spirit of Section 80(1) of the Code of Civil Procedure., Findings: The notice under Section 80(1) of the Code of Civil Procedure to the Government is mandatory before institution of the suit against the Government. The object of the notice is to give an opportunity to the Government to reconsider the matter and to make amends and settle the claim out of Court. Section 80 was enacted for the advancement of justice for securing public good by avoidance of unnecessary litigation. In State of Andhra Pradesh v. Gundugola Venkata Suryanarayana Garu, AIR 1965 SC 11, the Supreme Court of India observed that the object of the notice under Section 80(1) is to give an opportunity to the Government to reconsider the matter and to make amends and settle the claim out of Court. The Supreme Court further observed that Section 80(1) is imperative and must be strictly complied with. Failure to serve a notice complying with the requirements of the statute will entail dismissal of the suit., In State of A.P. v. Pioneer Builders, A.P., (2006) 12 SCC 119, the Supreme Court of India held that service of notice under Section 80 is a condition precedent for the institution of a suit against the Government. The object of Section 80 is the advancement of justice for securing public good by avoidance of unnecessary litigation. The relevant portion of the judgment is reproduced hereunder: From a bare reading of sub‑section (1) of Section 80, it is plain that subject to what is provided in sub‑section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer. It is well settled that before the amendment of Section 80 the provisions of unamended Section 80 admitted of no implications and exceptions whatsoever and are express, explicit and mandatory. The section imposes a statutory and unqualified obligation upon the court and in the absence of compliance with Section 80, the suit is not maintainable., Thus, from a conjoint reading of sub‑sections (1) and (2) of Section 80, the legislative intent is clear, namely, service of notice under sub‑section (1) is imperative except where urgent and immediate relief is to be granted by the court, in which case a suit against the Government or a public officer may be instituted, but with the leave of the court. Leave of the court is a condition precedent. Such leave must precede the institution of a suit without serving notice. Even though Section 80(2) does not specify how the leave is to be sought for or given, the order granting leave must indicate the ground(s) pleaded and application of mind thereon. A restriction on the exercise of power by the court has been imposed, namely, the court cannot grant relief, whether interim or otherwise, except after giving the Government or a public officer a reasonable opportunity of showing cause in respect of the relief prayed for., Having regard to the legislative intent, the power conferred on the court under sub‑section (2) is to avoid genuine hardship and is therefore coupled with a duty to grant leave to institute a suit without complying with the requirements of sub‑section (1), bearing in mind only the urgency of the relief prayed for and not the merits of the case. When want of notice under sub‑section (1) is made good by providing that even in urgent matters relief shall not be granted without giving a reasonable opportunity to the Government or a public officer to show cause, the provision also mandates that if the court is of the opinion that no urgent or immediate relief deserves to be granted it should return the plaint for presentation after complying with the requirements contemplated in sub‑section (1)., In State of Kerala v. Sudhir Kumar Sharma, (2013) 10 SCC 178, the Supreme Court of India observed that a suit filed without compliance of Section 80(1) of the Code of Civil Procedure cannot be regularised by simply filing an application under Section 80(2) of the Code of Civil Procedure. The plaintiffs’ contention that Section 80(1) notice is an empty formality is contrary to well‑settled law and is hereby rejected. This Delhi High Court is of the view that the notice under Section 80(1) of the Code of Civil Procedure is necessary in the present case. The application is therefore dismissed., Interim Application No. 7001/2021 under Section 91(1)(b) of the Code of Civil Procedure: The plaintiffs are seeking leave to institute this suit on various grounds inter‑alia that the matter concerns public health and electromagnetic field (EMF) radiation caused by cellular telecommunication technology must have caused harm to many members of the general public., Plaintiffs Submissions: While Section 91(1)(b) of the Code of Civil Procedure has been invoked, it is respectfully submitted that Section 91 has been invoked only in relation to the wrongful acts of the defendants, the wrongful acts relating to the act of omission in not completing studies on the health hazards of 5G before permitting any further activity in that field. Therefore, only some of the prayers in the suit relate to wrongful acts of the defendants, such as prayer (xiii); the other prayers, though also relating to acts of omission on the part of the State defendants, are more in the exercise of the statutory rights of the plaintiffs. The Supreme Court of India has settled the proposition that the precautionary principle stands embedded within the fold of Article 21 of the Constitution of India, thereby conferring statutory (rather, fundamental) rights upon the plaintiffs even independent of Section 91 of the Code of Civil Procedure., The suit also seeks prayers that, though connected, can be sought de hors the wrongful acts of the defendants, and have been preferred by the plaintiffs in exercise of their statutory rights e.g. prayer (i) which is under Order XXVII‑A of the Code of Civil Procedure. Even independent of grant of permission under Section 91(1)(b) of the Code of Civil Procedure, the suit ought to be permitted to proceed, where, at the highest, the issue of whether prior leave was actually required in respect of each and every single prayer could become one of the issues to be framed in the suit. Since numerous admissions of the defendants themselves have been tabled, which clearly show that they are guilty of wrongful acts, as the plaintiffs do not wish to rely upon a State actor to prosecute the present cause on their behalf (i.e. the learned Standing Counsel), they humbly request this Delhi High Court to grant leave under Section 91(1)(b) of the Code of Civil Procedure for such prayers that this court deems appropriate to be covered under the aforesaid provision., Interim Application No. 7002/2021 under Order VIII Rule 1 of the Code of Civil Procedure: The plaintiffs are seeking leave to sue in representative interest on the ground that colossal harm is eminent to the general public by the roll‑out of 5G technology and the suit involves issues regarding public health of the present as well as future generations., Plaintiffs Submissions: The plaintiffs, especially Plaintiff No. 1, who has been publicly and vociferously canvassing against the effects of EMF radiation for the last decade, have been approached by a number of individuals requesting them to initiate legal proceedings against the silent killer that exists in the country’s air, and who have expressed their desire to join them in such proceedings. As time, in light of COVID‑19 constraints, was too short to actually call upon all the other interested individuals to join the present suit, leave has been sought to sue also in representative interest, so that such individuals, after release of appropriate advertisement, can join the proceedings in due course. Since the plaintiffs themselves have individually suffered special as well as general damages, it is not the case of the plaintiffs that the suit cannot proceed if permission under Order I Rule 8 of the Code of Civil Procedure is denied. In fact, grant of leave of this Delhi High Court will give a first‑hand opportunity to assess how widespread the antagonism of members of the public at large is against the acts of omission of our regulatory agencies, just as was the case with tobacco, pan masala, asbestos, etc., Findings in respect of Interim Applications Nos. 7001/2021 and 7002/2021: No case for grant of leave to institute the suit is made out under Section 91(1)(b) of the Code of Civil Procedure or to sue in representative interest under Order I Rule 8 of the Code of Civil Procedure, as the plaintiffs’ suit is defective and not maintainable for the following reasons: (i) Order VI Rule 2(1) requires the plaint to contain statements of material facts in a concise form but no evidence; the plaintiffs have not complied as the statements are not concise and evidence is incorporated. (ii) Order VI Rule 9 prohibits setting out the contents of any document in the plaint unless the precise words are material; the plaintiffs have reproduced documents in the plaint. (iii) The plaint is stuffed with unnecessary scandalous, frivolous and vexatious averments, liable to be struck down under Order VI Rule 16. (iv) The plaintiffs have joined 33 defendants in this suit but the plaint does not reflect compliance with Order I Rule 3. (v) Various causes of action have been joined without complying with Order II Rule 3. (vi) The plaint has not been verified as required by Order VI Rule 15. (vii) In the affidavit filed with the plaint, the plaintiffs have deposed that only paragraphs 1 to 8 are true to their knowledge, whereas paragraphs 1 to 169 are based on information and legal advice, indicating no personal knowledge of the averments. A suit based entirely on information and legal advice is not maintainable. (viii) Since the plaintiffs have no personal knowledge of any averments, they appear to seek an inquiry by this Delhi High Court into the averments, which is not permissible. (ix) Section 34 of the Specific Relief Act, 1963 deals with declaratory suits; the plaintiffs never approached the defendants claiming any right, so the maintainability of the declaratory reliefs is doubtful. (x) Section 39 of the Specific Relief Act, 1963 deals with mandatory injunctions; the two requirements – existence of an obligation of the defendant towards the plaintiff and breach thereof – are not fulfilled, making the injunctions doubtful. (xi) The plaintiffs have not valued the suit properly for the purpose of Court fees. (xii) The plaintiffs have not given the mandatory notice under Section 80(1) of the Code of Civil Procedure., Justice Rajiv Sahai Endlaw observed that this is a classic textbook case of how not to draft a plaint, which should be taught in law colleges and to young lawyers so that such bloopers in drafting pleadings, damaging to one's own client, are avoided. The plaintiffs filed this suit on 28th May 2021, when the Registry raised an objection to the maintainability of the suit. Instead of explaining how the suit is maintainable, the plaintiffs requested the Registry to list the suit as it is with defects and undertook to bear the cost and consequences, whereupon the Registry listed the matter, subject to objections, before this Delhi High Court. The entire suit is filed under Section 91 of the Code of Civil Procedure read with Order XXVII‑A and Order I Rule 8 of the Code of Civil Procedure. No application was filed along with the suit to seek the leave of this Delhi High Court to institute the suit. On 31st May 2021, the plaintiffs filed two applications, namely Interim Applications Nos. 7001/2021 and 7002/2021, seeking leave to sue under Section 91(1)(b) of the Code of Civil Procedure and Order I Rule 8 of the Code of Civil Procedure. Although the plaint is not based on any special damage suffered by plaintiffs by EMF radiation caused by cellular telecommunication technology, the plaintiffs have attempted to set up a new plea in those applications that they have been advised that they suffered special damages because of EMF radiation caused by cellular telecommunication technology., Conclusion: Interim Applications Nos. 6909/2021, 7001/2021 and 7002/2021 are dismissed. However, Interim Application No. 6905/2021 is partially allowed and the plaintiffs are directed to deposit the deficit Court fees of Rs.1,95,594 within one week, failing which the Registry shall recover the Court fees from the plaintiffs. Consequently, the suit is also dismissed. All other applications are disposed of. The plaintiffs have abused and misused the process of law, resulting in waste of judicial time. A cost of Rs.20 lakh is imposed on the plaintiffs. The plaintiffs are directed to deposit the cost of Rs.20 lakh with the Delhi State Legal Services Authority within one week. If the cost is not deposited within one week, the Delhi State Legal Services Authority shall recover the same from the plaintiffs in accordance with law and shall utilize this cost for the cause of victims of road accidents., If any proceedings are instituted by the plaintiffs without the deposit of the deficient Court fees of Rs.1,95,594 and the cost of Rs.20 lakh, the Registry shall place the copy of this judgment before the concerned court in those proceedings. It appears that the plaintiffs have filed this suit to gain publicity, which is clear from the fact that Plaintiff No. 1 circulated the video‑conferencing link of this Delhi High Court on her social media accounts, resulting in repeated disruption of the court proceedings. During the hearing of this suit, the court proceedings were disrupted thrice by unknown miscreants who continued the disruptions despite repeated warnings. Issue show‑cause notice to the persons who disrupted the court proceedings as to why contempt of court proceedings should not be initiated against them. The Delhi Police shall identify the persons and serve the notice on them. List for reporting compliance before the Joint Registrar on 5th July 2021.
id_590	0	Appellant: Aftaf alias Nafees alias Pappu. Respondent: State of Uttar Pradesh. Counsel for Appellant: Rakesh Dubey. Counsel for Respondent: Government Advocate. Honourable Doctor Kaushal Jayendra Thaker, J. Honourable Ajai Tyagi, J., Heard Sri Rakesh Dubey, learned counsel for the accused appellant and Sri Vikas Goswami, learned Additional Government Advocate for the State., Non‑following of the decision of the Supreme Court of India in Criminal Appeal No. 308 of 2022 (Saudan Singh versus State of Uttar Pradesh) decided on 25 February 2022 and non‑considering the case of the accused for remission seems to be the natural administrative conduct of the officers and the jail authority. We once again plead to show our anguish., This appeal was listed in the year 2004. Unfortunately, as the order sheet shows, the matter was listed only after a few years and the delay was condoned in the year 2008. From 2008 till 2022, the matter was never listed for hearing as is clear from the order sheet and it was only after the listing application was filed that the matter was listed. The lower Court's records were there in the year 2004 but the office has not prepared the paper book. As the matter is pending for a long time and the accused appellant is in jail for more than 21 years with remission, we dispense with the paper book. We have requested learned counsels to go through the record. We have also perused the record., This appeal challenges the judgment and order dated 23 October 2003 passed by the Special Judge (Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act), Kanpur Dehat in Special Sessions Trial No. 50 of 2001 (State versus Aftaf alias Nafees alias Pappu) wherein the learned Special Judge convicted and sentenced the accused appellant, Aftaf alias Nafees alias Pappu, under Section 376 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) read with Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as SC/ST Act) and sentenced him to imprisonment for life with a fine of Rupees 5,000 and, in case of default in payment of fine, further to undergo one year's simple imprisonment., Brief facts as culled from the record are that Kamlesh Kumar, the husband of the prosecutrix, made a complaint to Police Station Akbarpur, Kanpur Dehat stating that on 9 February 2001, at about 12.00 noon, when the prosecutrix went to her field for bringing silage for the cattle, the accused appellant, Aftaf alias Nafees alias Pappu, caught her from behind, knocked her down and started committing rape on her. On raising alarm by the prosecutrix, the informant along with his brother, Dinesh Kumar, who were cutting silage in the adjacent field, reached the place of incident where they saw that the accused was committing rape on her. It was alleged that the prosecutrix sustained injuries, her glass bangles got broken and the informant, his brother and one Darogi Lal brought her to the Police Station. On the basis of the written report, the First Information Report being Case No. 36 of 2001 under Section 376 of the IPC and Section 3(2)(v) of the SC/ST Act was lodged against the accused., After lodging of the First Information Report, the investigation was set in motion. The prosecutrix was medically examined. The Investigating Officer, after taking statements of witnesses, submitted a charge sheet against the accused appellant under Section 376 of the IPC and under Section 3(2)(v) of the SC/ST Act., The accused was committed to the Court of Sessions as the case was triable by the Court of Session. The learned Sessions Judge framed charges on the accused. The accused pleaded not guilty and wanted to be tried., The prosecution examined seven witnesses: Kamlesh Kumar (PW1), the prosecutrix (PW2), Doctor Subha Mishra (PW3), Maan Singh (PW4), Dinesh Kumar (PW5), and Om Prakash Singh (PW6)., In support of the ocular version, the following documents were filed: Written Report (Exhibit Ka.1), Recovery memo of glass bangles (Exhibit Ka.7), Recovery memo of petikot (Exhibit Ka.2), Medical Report of the prosecutrix (Exhibits Ka.3 and Ka.4), Charge sheet (Exhibit Ka.12), and Site Plan with Index (Exhibit Ka.8)., At the end of the trial and after recording the statement of the accused under Section 313 of the Criminal Procedure Code, and hearing arguments on behalf of the prosecution and the defence, the learned Special Judge convicted the appellant as mentioned aforesaid., As far as commission of offence under Section 3(2)(v) of the SC/ST Act is concerned, it is submitted by learned counsel that the First Information Report nowhere states that the injured belongs to a particular community. No documentary evidence to prove that the injured belongs to a Scheduled Caste or Scheduled Tribe was produced either before the Investigating Officer or the Sessions Court. No independent witness has been examined by the prosecution. It is stated by the prosecutrix that she did not know the accused. PW1 had stated that he did not know the accused and in his cross‑examination he denied the commission of the offence and, therefore, no case is made out for commission of offence under Section 3(2)(v) of the SC/ST Act and the finding of the learned Special Judge requires to be upturned., As far as commission of offence under Section 376 of the IPC is concerned, it is submitted by learned counsel for the appellant that the accused has been falsely implicated in the present case. The medical evidence does not support the prosecution version as no internal or external injury was found on the person of the prosecutrix though the First Information Report and medical examination were prompt. It is further submitted that even PW1, in his cross‑examination, has denied the commission of rape and the finding of the Special Judge is based on surmises and conjectures and requires to be upturned. In support of his argument, learned counsel for the appellant has relied on the decision of the Supreme Court of India in Criminal Appeal No. 204 of 2021 (Vishnu versus State of Uttar Pradesh) decided on 28 January 2021 and in Criminal Appeal No. 4083 of 2017 (Pintu Gupta versus State of Uttar Pradesh) decided on 28 July 2022 and has contended that no ingredients of Section 3(2)(v) of the SC/ST Act and Section 376 of the IPC are made out and, therefore, the conviction is required to be set aside., Per contra, Sri Vikas Goswami, learned Additional Government Advocate for the State has submitted that the conviction of the accused is just and proper as ingredients of offence under Section 3(2)(v) of the SC/ST Act and Section 376 are very much present. It is further submitted by the learned Additional Government Advocate that PW2, the prosecutrix, has stated that before committing the unlawful act, the accused had asked her name, caste and her husband's name and, therefore, the finding of the learned Special Judge is just and proper., Before we venture upon to discuss the evidence and the arguments advanced by the learned counsel for the parties, it would be pertinent to discuss Section 3(2)(v) of the SC/ST Act and Section 375 of the IPC which read as follows: \3. Punishments for offences of atrocities. (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, (v) commits any offence under the Indian Penal Code (Act of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine.\ [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 six following descriptions: (First) Against her will. (Secondly) Without her consent. (Thirdly) 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 of hurt. (Fourthly) 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. (Fifthly) 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. (Sixthly) With or without her consent, when she is under sixteen 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 fifteen years of age, is not rape.], The aforesaid provisions of law would now be seen in view of the ocular version as well as the documentary evidence of the prosecution witnesses. PW1, in his cross‑examination, categorically mentions that he has not seen the appellant committing any kind of sexual intercourse with the prosecutrix. PW3, whose oral testimony has been considered, also categorically states that she cannot conclusively opine whether there was commission of sexual intercourse against the will or against the consent of the prosecutrix. None of the ingredients, according to us, has been proved by the prosecutrix., The evidence on record highlights the theory of commission of rape on the ground that the prosecutrix belongs to a particular community. Neither the First Information Report nor the oral testimony has remotely suggested the same. So as to attract the provisions of Section 375 read with Section 376 of the IPC and Section 3(2)(v) of the SC/ST Act, ingredients of the said offence have to be proved., PW Kamlesh Kumar, who lodged the First Information Report, is the husband of the prosecutrix and has stated that the accused appellant professes Muslim religion. The appellant is a resident of a place which is eight to nine kilometres away from the house of the prosecutrix. The most important aspect is that he does not know the prosecutrix, which shows that the accused would not be knowing the caste of the prosecutrix. The accident occurred on 9 February 2001 in broad daylight at about 12.00 noon. The First Information Report and evidence show that the accused caught hold of the prosecutrix from behind and knocked her down. PW1, PW5 and Darogi Lal were in the nearby field. According to PW1, in resisting, the prosecutrix suffered injuries and her bangles got broken. The report was lodged by Om Prakash Singh and the informant signed the same. It is an admitted position of fact that broken bangles were found at the place of occurrence. However, when we read the evidence of PW2, the prosecutrix, it shows that she was being dragged and when she shouted, her husband and one Darogi Lal came to save her. According to the prosecutrix, the accused ran away and after a lot of running he could be caught. This statement is opposite to the statement made by PW1 and PW5, and there is no corroboration. She also mentions that she does not know the accused nor does the accused know her. The witnesses have given different versions. Evidence of PW2 shows that at the time of occurrence the accused first caught her from behind and asked her caste and the name of her husband. It is highly unbelievable that a person who is going to commit a grave offence like rape would ask the caste and name of the husband of the prosecutrix before the commission of the crime. Hence, there is no evidence which shows that the offence by the appellant is committed on the ground that the prosecutrix belongs to a Scheduled Caste. The improvement in statement before the lower Court was made by the prosecutrix, PW2, stating that the appellant first asked her caste and name of her husband then committed the offence. This is nothing else but a totally manufactured evidence., As per the prosecution version, on hearing the hue and cry of the prosecutrix, her husband, brother‑in‑law and one Darogi Lal reached the spot but Darogi Lal, who was an independent witness, has not been produced., We now go to the deposition of PW3, the doctor. The medical examination of the prosecutrix was conducted by PW3. In the medical report of the prosecutrix, no injury was found on her private part. Two slides were taken from the discharge of the vagina and sent for examination. The pathology report received by the doctor and the supplementary report were prepared. In the supplementary report, no living or dead spermatozoa was found, which shatters the prosecution case with regard to commission of rape. Neither dead nor live spermatozoa was found. She was carrying a five‑month‑old fetus., This judgment shows that the learned Sessions Judge convicted the accused appellant where there was no evidence for commission of offence under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Neither the First Information Report nor the oral testimony of PW1 to PW5 even remotely suggests that the accused knew the prosecutrix. It is not credible that a person who wants to commit a sexual offence would enquire from the prosecutrix her name and her caste and then commit the unlawful act. PW1, who is the husband of the prosecutrix, has flatly denied the commission of the offence in his cross‑examination though he was in the adjacent field. He also stated that he did not know the accused appellant. Therefore, the evidence of PW5 is wholly unreliable. The judgment relied upon by the prosecution before the Supreme Court of India, namely Ved Prakash versus State of Haryana, JIC 1996 SC 18, cannot apply to the facts of this case., The evidence of the doctor and the medical report does not show the presence of any spermatozoa though the prosecutrix, after lodging the First Information Report, was directly taken from the police station for medical examination. No injury was found on her private part. In the medical report of the prosecutrix, some small abrasions were found on her hand and knee but it has been specifically mentioned that these abrasions were three to four days old while the medical examination of the prosecution was conducted on the very next day of the occurrence; hence, these abrasions cannot be linked with the alleged occurrence. It was also stated in her testimony that at the time of the alleged occurrence the appellant threw her on the ground and during the commission of rape she was sliding along the ground, but not a single injury was found on the back of the prosecutrix. The learned judge, unfortunately, nowhere discussed the ingredients of Section 375 of the IPC. Rather, he misread the evidence of PW3. The learned Sessions Judge assumed that because a saree was worn by the prosecutrix, there may not be any injuries. He also assumed that because she was a married lady carrying a child, there was no necessity of any injury. He considered the fact that spermatozoa may or may not be found. The important aspects are the non‑finding of spermatozoa and the non‑finding of any kind of injuries, which would permit us to upturn the judgment of the learned Sessions Judge. There is no finding as far as commission of offence under Section 3(2)(v) of the SC/ST Act. Only on the ground that the prosecutrix and her family members belong to a particular community can it be said that the offence has been committed; the answer is no. We are also fortified in our view by the decision of the Supreme Court of India in Patan Jamal Vali versus State of Andhra Pradesh, 2021 SCC Online SC 343, wherein the Supreme Court held: \58. The issue as to whether the offence was committed against a person on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe or such property belongs to such member is to be established by the prosecution on the basis of the evidence at trial. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW1 did not mention in her statement to the police that the offence was committed because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW2. While it would be reasonable to presume that the accused knew the caste of PW2 since village communities are tightly knit and the accused was also an acquaintance of PW2's family, the knowledge by itself cannot be said to be the basis of the commission of offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW2 faces, it becomes difficult to establish what led to the commission of offence whether it was her caste, gender or disability. This highlights the limitation of a provision where causation of a wrongful act arises from a single ground or what we refer to as the single‑axis model. 59 It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words “on the ground of” under Section 3(2)(v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. This has decreased the threshold of proving that a crime was committed on the basis of caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. Section 8, which deals with presumptions as to offences, was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows: 8. Presumption as to offences. – In a prosecution for an offence under this Chapter, if it is proved that (a) the accused rendered [any financial assistance in relation to the offences committed by a person accused of], or reasonably suspected of, committing an offence under this Chapter, the Special Court shall presume, unless the contrary is proved, that such person had abetted the offence; (b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or in prosecution of the common object. [(c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim, unless the contrary is proved.] 60 The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that a high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration and recommends inclusion of provisions of the SC/ST Act while registering cases of gendered violence against women from SC/ST communities. However, as we have noted, one of the ways in which offences against SC/ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression. This is especially the case when courts tend to read the requirement of “on the ground” under Section 3(2)(v) as only on the ground of caste. The current regime under the SC/ST Act, post‑amendment, has facilitated the conduct of an intersectional analysis by replacing the causation requirement with a knowledge requirement, making the regime sensitive to the kind of evidence likely to be generated in cases such as these. 61 However, since Section 3(2)(v) was amended and clause (c) of Section 8 was inserted by Act No. 1 of 2016 with effect from 26 January 2016, these amendments are not applicable to the case at hand. The offence in the present case took place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence was committed on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe. The conviction under Section 3(2)(v) would consequently have to be set aside.\, The decisions cited by learned counsel for the appellant in Vishnu (Supra) and in Pintu Gupta (Supra) will also apply to the facts of this case. This is a similar case to Vishnu (Supra) where the man was languishing in jail for non‑commission of an offence for which he was punished., We, therefore, hold that no case for commission of offence under Section 376 read with Section 3(2)(v) of the IPC is made out. The judgment and order impugned to this appeal is set aside. The accused appellant is acquitted from the charges leveled against him. We direct the jail authority concerned to set the accused appellant free, if not warranted in any other offence., Record and proceedings be sent back to the Trial Court forthwith., The Supreme Court of India is thankful to both the learned advocates for ably assisting the Court and getting this old matter decided., The office has not prepared the paper book in this matter though the record was very much there in the year 2004. We, by this omnibus direction, direct the Registrar (Listing) to impress upon the officer concerned to follow the decision of the Supreme Court of India in Vishnu (Supra) which is yet not being followed as even after 2021, the matters are not being listed. Even this matter has been listed only after the counsel for the appellant filed a listing application as the accused is in jail for more than 19 years (21 years with remission). His case has not been considered for remission by the jail authorities though fourteen years of incarceration is over and there are directions of the Supreme Court of India and this Court. Even if there is no direction of the Courts, under Section 433 of the Criminal Procedure Code the authorities concerned are under an obligation to consider the case of the accused for remission.
id_591	0	The writ‑petitioner organisation approaches the Supreme Court of India under Article 32 of the Constitution, seeking issuance of appropriate orders directing the respondents – Union government and each State/Union Territory government collectively referred to as respondent‑state – to take steps for implementing the provisions of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 read with the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (hereafter Act/POSH Act or Act and Rules/POSH Rules respectively). The detailed claims are extracted verbatim: To issue a writ in the nature of mandamus or an appropriate writ, order or direction as may be necessary: directing all the respondents, i.e., Union of India, States and Union Territories to implement the provisions of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Act, 2013 and the Sexual Harassment of Women at Workplace (Prevention, Prohibition, Redressal) Rules, 2013 without any further delay; directing all the States/UTs to notify and appoint the District Officers as per Section 5 of the Act; directing all the States/UTs to constitute Local Committees in all the districts as per Sections 6 and 7 of the Act; directing all the States/UTs to appoint Nodal Officers as per Section 6 of the Act; directing all the States/UTs to constitute Internal Complaints Committees as per Section 4 of the Act in all the workplaces defined in Section 2(o) of the Act; directing all the States/UTs to ensure reporting and collection of Annual Compliance Reports from all workplaces by all the District Officers of respective States as per Sections 21 and 22 of the Act; directing all the States/UTs to ensure that the Annual Compliance Reports collected by District Officers, containing information on the number of cases filed and their disposal, are consolidated and the reports are published and put in the public domain; directing all the States/UTs to give due publicity to the Act and Rules in all districts, blocks, talukas, tehsils in rural or tribal areas and wards or municipalities in urban areas and to organise awareness activities to advance the understanding of the provisions of this Act; directing all the States/UTs that the gist of important provisions will be displayed at all workplaces in all the States/UTs; directing Respondent No.1 to frame rules and/or directions as provided in Section 29 of the Act, to clarify the role of Districts in collecting annual compliance reports from Internal Complaints Committees and Local Committees, the role of District Officers in collecting fines for non‑compliance of the Act and the appropriate authority for collection of fines; and to issue any other writ, order or direction as the Honourable Court may deem fit and proper in the circumstances of the case., Over the course of many hearings, the Supreme Court of India, with the able assistance and cooperation of learned counsels on both sides, undertook an exercise to delineate lacunae in the implementation of the Act on the ground. Further, in compliance with orders of the Supreme Court of India, numerous states filed affidavits highlighting steps taken by their respective governments in furtherance of implementing the Act and Rules in letter and spirit., On 20 February 2023, learned counsels addressed the Supreme Court of India on certain questions regarding the setting up of Nodal Cells in the concerned Central Union Ministry and also with respect to setting up of Local Committees and appointment of Nodal Officers in all districts of the country. This judgment pertains to these specific issues and the suggestions made in this regard., Recently, the Supreme Court of India in another bench composition, in Aureliano Fernandes v. State of Goa & Ors., had occasion to pass directions regarding the implementation of the POSH Act. These directions are comprehensive with regard to seeking compliance of the Act by the appropriate government as defined under Section 2(b) and its many departments, authorities, institutions, etc.; the High Courts and the courts they supervise; specific non‑state authorities and organisations such as statutory bodies of professionals at the apex and state level, universities and other educational institutions, hospitals and nursing homes. It specifically directed the National Legal Services Authority and the State Legal Services Authorities, and the National Judicial Academy and State Judicial Academies, to develop modules for workshops and awareness programmes, in their capacities., The Supreme Court of India issued the following directions: (i) The Union of India, all State Governments and Union Territories are directed to undertake a time‑bound exercise to verify whether all concerned Ministries, Departments, Government organisations, authorities, Public Sector Undertakings, institutions, bodies, etc., have constituted Internal Complaints Committees, Local Committees or Internal Complaints Committees as the case may be and that the composition of the said committees is strictly in terms of the provisions of the POSH Act; (ii) It shall be ensured that necessary information regarding the constitution and composition of the committees, details of the e‑mail IDs and contact numbers of the designated persons, the procedure prescribed for submitting an online complaint, as also the relevant rules, regulations and internal policies, are made readily available on the website of the concerned authority, functionary, organisation, institution or body, as the case may be, and the information furnished shall also be updated from time to time; (iii) A similar exercise shall be undertaken by all statutory bodies of professionals at the apex level and the state level (including those regulating doctors, lawyers, architects, chartered accountants, cost accountants, engineers, bankers and other professionals), by universities, colleges, training centres and educational institutions and by government and private hospitals and nursing homes; (iv) Immediate and effective steps shall be taken by the authorities, managements and employers to familiarise members of the committees with their duties and the manner in which an inquiry ought to be conducted on receiving a complaint of sexual harassment at the workplace, from the point when the complaint is received till the inquiry is finally concluded and the report submitted; (v) The authorities, management and employers shall regularly conduct orientation programmes, workshops, seminars and awareness programmes to up‑skill members of the committees and to educate women employees and women’s groups about the provisions of the Act, the Rules and relevant regulations; (vi) The National Legal Services Authority and the State Legal Services Authorities shall develop modules to conduct workshops and organise awareness programmes to sensitize authorities, managements, employers, employees and adolescent groups with the provisions of the Act, which shall be included in their annual calendar; (vii) The National Judicial Academy and the State Judicial Academies shall include in their annual calendars orientation programmes, seminars and workshops for capacity building of members of the committees established in the High Courts and District Courts and for drafting Standard Operating Procedures to conduct an inquiry under the Act and Rules; (viii) A copy of this judgment shall be transmitted to the Secretaries of all the Ministries, Government of India, who shall ensure implementation of the directions by all the concerned departments, statutory authorities, institutions, organisations etc., under the control of the respective ministries, and a copy shall also be transmitted to the Chief Secretaries of all the States and Union Territories, who shall ensure strict compliance of these directions by all the concerned departments; (ix) The Registry of the Supreme Court of India shall transmit a copy of this judgment to the Director, National Judicial Academy, Member Secretary, National Legal Services Authority, Chairperson, Bar Council of India and the Registrar Generals of all the High Courts, and also to the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and the Engineering Council of India for implementing the directions issued; (x) The Member‑Secretary, National Legal Services Authority is requested to transmit a copy of this judgment to the Member Secretaries of all the State Legal Services Authorities, and similarly the Registrar Generals of the State High Courts shall transmit a copy of this judgment to the Directors of the State Judicial Academies and the Principal District Judges of their respective states; (xi) The Chairperson, Bar Council of India and the apex bodies mentioned in sub‑paragraph (ix) shall in turn transmit a copy of this judgment to all the State Bar Councils and the State Level Councils, as the case may be., The Union of India and all States and Union Territories are directed to file their affidavits within eight weeks for reporting compliances., In addition to these detailed directions, a few aspects relating to the effective implementation of the POSH Act highlighted in the present writ petition require the Court’s attention. The POSH Act is comprehensive and a code in itself for prevention, punishment and redressal of sexual harassment complaints. It takes the remit of the remedy envisaged in the Vishaka Guidelines beyond the State and public functionaries to a larger, much wider scope of employee and employer than any other legislation., Section 2(f) defines “employee” as a person employed at a workplace for any work on regular, temporary, ad‑hoc or daily‑wage basis, either directly or through an agent, including a contractor, with or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise, and includes a co‑worker, a contract worker, probationer, trainee, apprentice or any other such name. Section 2(g) defines “employer” as (i) in relation to any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit of the appropriate Government or a local authority, the head of that department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit or such other officer as the appropriate Government or the local authority may by an order specify; and (ii) in any workplace not covered under sub‑clause (i), any person responsible for the management, supervision and control of the workplace., Each employer is legally mandated to constitute an Internal Complaints Committee under Section 4. To address the gaps where there is no Internal Complaints Committee – for those working in a workplace that employs less than ten workers or where the employer themselves are the respondent – the Act provides for a Local Committee in each district, which is to be constituted by the District Officer under Section 6. The District Officer is also tasked with designating a Nodal Officer in each block, taluka and tehsil in rural or tribal areas, and ward or municipality in urban areas, to receive complaints and forward the same to the concerned Local Committee. These Nodal Officers are meant to be the first point of contact, especially where no Internal Complaints Committee is constituted. After conducting an inquiry or recording a settlement, the Internal Complaints Committee or Local Committee, in its inquiry report, must recommend to the employer or District Officer, respectively, the action to be taken against the respondent, or in the situation of a false or malicious case, against the complainant., The petitioner has pointed out a lack of clarity as to the District Officer’s role in relation to the annual reports contemplated under Sections 21 and 22. Both the Internal Complaints Committee and the Local Committee prepare annual reports and submit them either directly (in the case of the Local Committee) or through the employer (the Internal Complaints Committee) to the District Officer. Section 21(1) does not mention the Internal Complaints Committee report being forwarded to the District Officer; Section 22, however, states that the employer is mandated to mention in its report the number of cases lodged and disposed, and even in the absence of a report it must intimate the numbers to the District Officer. The District Officer, in turn, submits a brief report to the State Government., The appropriate government, as defined under Section 2(b), is responsible at the last level to monitor the implementation of this Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplace. It is also obligated to take measures to publicise the Act. The appropriate government is empowered to call for information and inspection of records, wherein it may call upon an employer or District Officer to furnish in writing any information relating to sexual harassment it may require, or to produce any record required by an officer authorised to carry out an inspection., It is wholly apparent from this outline of the scheme of the Act that the role of the District Officer is pivotal; they are responsible for numerous aspects in the implementation of the Act. They are the point where coordination and accountability for the POSH Act converge. The District Officer is also responsible for payment of allowances to the Chairman and members of the Local Committee, which it receives from the agency set up by the State Government (Section 8 of the Act). Under Section 13, if the respondent in any case fails to pay any sum so directed, the Internal Complaints Committee or Local Committee can forward the order for recovery of the sum as an arrear of land revenue to the concerned District Officer., Section 5 stipulates that the appropriate Government may notify a District Magistrate, Additional District Magistrate, Collector or Deputy Collector as a District Officer for every district to exercise powers or discharge functions under this Act. Chapter VII, titled Duties and Powers of the District Officer, states under Section 20 that the District Officer shall (a) monitor the timely submission of reports furnished by the Local Committee; and (b) take such measures as may be necessary for engaging non‑governmental organisations for creation of awareness on sexual harassment and the rights of women. While the language in Section 5 uses ‘may’, the context of the statute and Section 20, which uses ‘shall’, makes it clear that the District Officer is the most important functionary in the system, tasked with keeping the redressal and monitoring framework both intact and smoothly running. In State of Uttar Pradesh v. Jogendra Singh, this Court held that the word ‘may’ can, in context, be interpreted as a command., We have perused the replies and affidavits filed by numerous states pursuant to receiving notice; seen together, they are marked by a lack of uniformity in terms of implementation of the Act. Numerous states have tried to force‑fit the institutional requirements of the Act within their existing bureaucratic frameworks, for instance assigning its implementation to departments other than their Women and Child Development Ministry, such as Social Welfare, Social Security, Legislative Affairs, etc. The affidavit filed by the petitioner in response to the replies by the States highlights many lacunae and lack of uniformity in implementation of the POSH Act by various state governments. District Officers were in most states notified after notice of this writ petition was served on them, and even among those states that have taken action they have simply notified a specific post as District Officer without providing any specific details of the officers, their contact information, etc. Most states have failed to provide documentation on constitution of Local Committees, and even those that have, many have not constituted one in each district. Only a handful of states have provided any details of Nodal Officers, but even among these, the Nodal Officers are specific posts notified, not individuals at every taluka, ward or municipality as contemplated under Section 6(2). Information on annual reports is perhaps most alarming; only three states have provided a consolidated report, relying on differing sources or just the Local Committees. Each state has notified a different ministry as the nodal ministry for implementation of the Act, some the Social Welfare Ministry or its allied departments, while others rely on the Women and Child Development department., The general thrust of the affidavits, especially that of the Union of India, has been to highlight the generation of awareness through a massive publicity campaign, issuance of advisories, publication of handbooks, etc. However, it is plainly clear that while generation of awareness is necessary, if a woman suffers sexual harassment at the workplace the framework for redressal must in fact exist. The failure to notify District Officers specifically has a snowballing effect on appointment of the Local Committees and Nodal Officers, in addition to other aspects. The complaint mechanism and larger framework, no matter how effective, remain inadequate if the authorities set out in the Act are not duly appointed or notified. Therefore, the State or Union Territory government must ensure that every district at all times has a notified District Officer; in case of vacancy caused by retirement or any other reason, it must be duly remedied to enable smooth transition between officers and ensure that there is always someone in charge of this position. Furthermore, effort has to be undertaken to orient, train and sensitize these District Officers with regard to the provisions of the Act and Rules, with an emphasis on their roles and obligations. A similar range of activities must be conducted for the Nodal Officers appointed and Local Committees constituted by each District Officer., This Act is a pioneering legislation with a horizontal mechanism and rights framework. A look at some of the definitions – employee, employer and workplace – drives this point home and demonstrates the scope of its horizontal application. The inclusion of definitions of domestic worker and unorganized sector in Section 2, which though not expressly referred to in the substantive content of the Act, is telling: (e) “domestic worker” means a woman who is employed to do household work in any household for remuneration whether in cash or kind, either directly or through any agency on a temporary, permanent, part‑time or full‑time basis, but does not include any member of the family of the employer; (p) “unorganized sector” in relation to a workplace means an enterprise owned by individuals or self‑employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten. The inclusion of these definitions has greatly expanded the scope of this Act’s application. An aggrieved domestic worker can therefore take action against a person residing in the house where she works, using the Local Committee framework; Section 2(o) defines workplace and includes, among other things, a dwelling place or house., The composition and role of the Local Committee, which is the foundational body in the district, especially for the unorganized sector, is as follows: the committee is headed by a nominated chairperson who is an eminent woman in the field of social work and committed to the cause of women; one member is nominated from women working in a block, taluka or tehsil (rural) or ward or municipality (urban); two more members, at least one of whom must be a woman, are nominated amongst NGOs or associations committed to the cause of women or a person familiar with issues relating to sexual harassment; one member must have a legal background or knowledge of the law; and one member must belong to a Scheduled Caste, Scheduled Tribe or Other Backward Class. As per Sections 6 and 7 of the Act, a Local Committee is empowered with powers equivalent to a civil court to conduct inquiry, issue summons, enforce attendance, etc., which reflects its importance in the framework. The inclusion of nominees from NGOs is helpful because women find it easier to approach local NGOs; however, there is no avenue in the law for these NGOs to register or pursue the matter on behalf of consenting women. Therefore, spreading awareness relating to Local Committees and dispelling the air of formality should be a priority of the highest level State that seeks to implement the Act., It is relevant to note a major limitation of the Act, which depends on the Union Government to disburse funds to the States, which, using an agency, can transfer the same to the District Officer. Sections 20 and 24 obligate the District Officer and appropriate government to take steps to publicise the Act, but Section 24 states that the appropriate Government may, subject to the availability of financial and other resources, (a) develop relevant information, education, communication and training materials, and organise awareness programmes to advance the public’s understanding of the provisions of this Act providing for protection against sexual harassment of women at workplace; and (b) formulate orientation and training programmes for the members of the Local Committee. In the absence of a delineated budget to pay the concerned officers and conduct events for awareness and training, various Local Committees are rendered ineffective or remain vacant. Therefore, setting a budget for implementation of this Act at each district level, and thereafter at state level, is necessary to ascertain disbursal of grants from the Union Government., In this manner, the Act contemplates a wide scope for both the aggrieved woman and the respondent, and places a public duty on employers or Local Committees, as the case may be, to ensure prevention, prohibition and redressal of complaints of sexual harassment. Operationalising Local Committees and ensuring their effectiveness remains the key to making these remedies accessible to the unorganized sector., The directions prayed for in the present writ petition can be traced directly to the obligations and duties set out in the express provisions of this Act: implement the provisions of the POSH Act and Rules – Union of India, State governments and Union Territories; notify and appoint District Officers under Section 5 by State and UT governments; appoint Local Committees in each district under Sections 6 and 7 by the District Officer; appoint Nodal Officers under Section 6(2) by the District Officer; constitute Internal Complaints Committees in all workplaces as defined under Section 2(o) by each employer; ensure reporting and collection of annual compliance reports from all workplaces under Sections 21 and 22 by District Officers; consolidate annual compliance reports and publish them in the public domain under Section 23 by the appropriate government; publicise the Act and Rules and organise awareness activities to advance understanding of the provisions of the Act under Section 24 and Section 20(2); display the gist of important provisions at all workplaces under Section 19(b); and frame rules or directions under Section 29 by the Union Government to clarify aspects not covered under the prevailing Rules., Section 23 of the Act provides that the appropriate government shall monitor the implementation of this Act and maintain data on the number of cases filed and disposed of in respect of all cases of sexual harassment at workplaces. While the Act does not contemplate publication of such data in the public domain, there is merit in using anonymised data on cases lodged and disposed to consolidate statistics that will reflect the efficacy of implementation. Therefore, although there is no need for an express direction by this Court, the Central Government and State Governments, in the interest of transparency and good governance, may consider making these statistics public, which would have a positive impact on various stakeholders and strengthen monitoring of the implementation of the Act., The petitioner seeks framing of rules or directions as provided in Section 29 of the Act to address three lacunae: (i) to clarify the role of districts in collecting the annual compliance reports from Internal Complaints Committees and Local Committees; (ii) the role of District Officers in collecting fines for non‑compliance of the Act; and (iii) the appropriate authority for collection of fines. The Court has considered the Rules closely; there are gaps. On point (i), the Court’s discussion clarifies the position, although an amendment explicitly laying this out in the Rules would be appropriate. Points (ii) and (iii) are of real concern., Section 26(1) of the Act defines the penalty to be imposed on the employer for failing to constitute the Internal Complaints Committee under Section 4, conduct inquiries under Sections 13 and 14, submit annual compliance reports as per Section 22, or contravention of any other provision of the Act or Rules. Contravention of the Act attracts a penalty of fifty thousand rupees. However, the Rules are silent on the reporting authority actually responsible for taking note of non‑compliance and the public authority empowered to collect the said fine.
id_591	1	Given the scheme of the Prevention of Sexual Harassment Act, it would be recommended that the District Officer itself be made the authority; however, presently they are not empowered to take appropriate action against employers for non‑compliance of the Act, which renders the framework rather toothless. Similarly, Section 26(2) provides further penalty, including cancellation of business licence or withdrawal of renewal or approval of cancellation of registration by the government or local authority required for carrying on a business or activity, on an employer for continuous violations of the same provisions, but does not mention the authority under the Act responsible for carrying out this function., Having regard to the above discussion, it is appropriate for the Supreme Court of India to issue the following directions, under the relevant heads, to ensure the effective implementation of the Prevention of Sexual Harassment Act and render it workable., The Women and Child Development Ministry of every State or Union Territory, through its Principal Secretary, should consider identifying a nodal person within the Department to oversee and aid in coordination as contemplated under the Prevention of Sexual Harassment Act. This person would also be able to coordinate with the Union Government on matters relating to the Act and its implementation. Section 17 provides a penalty for any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of the Act who contravenes the provisions of Section 16; such person shall be liable for penalty in accordance with the service rules applicable to the said person, or, where no such service rules exist, in such manner as may be prescribed. Rule 12 of the Prevention of Sexual Harassment Rules sets the fine at Rs 5,000, which is to be collected by the employer., Each State or Union Territory Government is to submit a consolidated report of its compliance with the directions to the Union Government within eight weeks. The Union Government is hereby directed to consolidate the various reports, identify any lapses in compliance by the State, and remedy them before filing a consolidated affidavit of compliance detailing the State's compliance and the Union Government's action taken, within twelve weeks from the date of this judgment., The concerned Principal Secretary of the State or Union Territory Ministry of Women and Child Development, or any other Department subject to amendment of the Rules as per direction (vii) below, will personally ensure appointment of a District Officer in each district within their territorial jurisdiction, as contemplated under Section 5, within four weeks from the date of this judgment., Thereafter, each appointed District Officer must, in compliance with Section 6(2), appoint nodal officers in every block, taluka and tehsil in rural or tribal areas and in every ward or municipality in urban areas; must constitute a Local Committee as contemplated under Sections 6 and 7 of the Act; and must ensure that the contact details of these nodal officers and Local Committees are forwarded to the nodal person within the State Government Ministry of Women and Child Development within six weeks from the date of this judgment., Thereafter, a circular or bulletin containing the names of all District Officers and their contact details (phone, address, and email), along with a district‑wise chart of the various nodal officers and their contact details, must be uploaded on the Department's website, or in the absence of one, on the main State Government website, in a conspicuous location, together with a compiled version of the Act, Rules, and simple charts or explainers on the basics of the Act, within six weeks from the date of this judgment., The Union Government ought to consider amending the Rules to operationalise Section 26 of the Act by recognising a reporting authority and a fine‑collecting authority. This direction must be read in light of the discussion in paragraph 8 (role of District Officer with regard to annual compliance reports) and paragraph 21 (penalty regime contemplated in the Act and resulting lacunae in the Rules). The Union Government may also consider amending the Rules to identify one Department, preferably the Women and Child Development Department, and create a nodal person post within the said Department to be responsible for the coordination required in the implementation of the Act, as referred to in direction (i). This will ensure greater uniformity in the implementation of the Act across the country., The District Officers and Local Committees should be mandatorily trained regarding their important responsibilities. Given their position in the redressal framework contemplated in the Act, they must first be sensitised to the nature of sexual harassment, the gendered interactions that occur in the workplace, etc. The State Governments must organise periodic and regular training sessions at the district level, to be attended by the District Officer, members of the Local Committee, and nodal officers, pursuant to Section 24(b)., In furtherance of Section 24, the State or Union Territory Governments are hereby directed to set out the financial resources allocated or needed for developing educational, communication and training material for spreading awareness of the provisions of this Act to the public, and to formulate orientation and training programmes as elaborated in direction (viii) above. This plan of action must form part of the compliance affidavit filed by each State. The District Officers, once nominated by the State, are hereby directed to identify non‑governmental organisations working with women and their protection within the district and to take action pursuant to their duty under Section 20(b) for creation of awareness. The appropriate government or district officers must also undertake effort to spread awareness of the existence of Local Committees and make them approachable for the unorganised sector, thus operationalising the horizontal import of this Act. The directions (iv) and (v) passed in Aureliano Fernandes v. State of Goa & Others, 12 May 2023, Civil Appeal No. 2482/2014, specifically cover the direction to authorities, management and employers to familiarise the members of the Internal Complaints Committees and Local Committees with their duties and the step‑wise manner in which an enquiry ought to be conducted on receiving a complaint of sexual harassment; to conduct orientation programmes, workshops, seminars, awareness programmes, etc.; and to educate women employees and women groups about the Act, Rules and regulations. The modules prepared by the National Legal Services Authority, as per direction (vi) in Aureliano Fernandes, to conduct workshops and organise awareness programmes to sensitise authorities, management and employers could be used in this regard. The Ministry of Women and Child Development, Government of India, has prepared a Handbook for implementation of the Prevention of Sexual Harassment Act, which serves as a useful guide for employees seeking information and for those nominated or appointed as members of the Internal Complaints Committees or Local Committees. It is hereby directed that a targeted effort be made to share this information with each District Officer, who may in turn disseminate it to their respective Local Committees, the nodal officers appointed under Section 6(2), and employers who constitute their own Internal Complaints Committees., Due compliance with Section 21(1) and (2) and Section 22 must be undertaken by each District Officer of the State, including collecting the reports from the Internal Complaints Committees or employers (or information where no report is available), and from the Local Committee, and preparation of a brief report to be shared with the State Government. The State or Union Territory Governments are hereby directed to create a Standard Operating Procedure, including the procedure and timelines for this process, so as to enable compliance with Section 23 of the Act, i.e., monitoring implementation and maintaining data. This direction may be read in light of the discussion contained in paragraph 18 above., The directions passed in Aureliano Fernandes v. State of Goa & Others, 12 May 2023, specifically address the constitution of Internal Complaints Committees in public establishments falling broadly within Section 2(o)(i) and some private establishments such as bodies governing professional associations. Those directions are reiterated to avoid multiplicity or overlap of efforts. It is further directed that efforts must be in line with the scheme of the Act and through the authorities designated for the various roles. Similarly, directions are made to hospitals, nursing homes, sports institutes, stadiums, sports complexes, or competition and games venues, as defined in Section 2(o)(iii) and (iv), to establish Internal Complaints Committees and report compliance as per the duties under this Act. The District Officer must be supplied a list of establishments, compiled by the relevant departments of the State or Union Territory Government, that fall within the scope of Section 2(o), so that they may write to them and ensure that they are well versed with the provisions relating to employers and their duties, including constitution of Internal Complaints Committees under Section 4, duties under Section 19, etc., and are implementing them in letter and spirit. This will also enable collection of annual reports as contemplated under Section 21. The consequent direction to all private sector workplaces under Section 2(o)(ii) can be passed once the District Officer is able to discern an exhaustive list of entities., This matter is to be listed in the first week of February 2024 for further compliance.
id_593	0	W.P.(C) ./2021 (to be registered and numbered)., To deal with the raging COVID-19 pandemic and to provide protection to the masses, the Central Government and the State Governments have rolled out the vaccination drive. In the first round, the frontline workers, particularly of the medical community, were covered, and other frontline workers such as the Police Force have already been covered., From 01.03.2021, the Government has initiated the programme to vaccinate persons above 60 years of age and those having the specified comorbidities falling in the age group of 45-60 years. The comorbidities listed by the Government are the following: Heart failure with hospitalization in the last one year; post cardiac transplant/left ventricular assist device; significant left ventricular systolic dysfunction; moderate or severe valvular heart disease; congenital heart disease with severe pulmonary arterial hypertension or idiopathic pulmonary arterial hypertension; coronary artery disease with past CABG/PTCA/MI and hypertension/diabetes on treatment; angina and hypertension/diabetes on treatment; CT/MRI documented stroke and hypertension/diabetes on treatment; pulmonary arterial hypertension and hypertension/diabetes on treatment; diabetes (more than 10 years or with complications) and hypertension/diabetes on treatment; kidney/liver/hematopoietic stem cell transplant recipient or on wait list; end‑stage kidney disease on haemodialysis/CAPD; current prolonged use of oral corticosteroids or immunosuppressant medication; decompensated cirrhosis; severe respiratory disease with hospitalisations in last two years/FEV1 <50%; lymphoma/leukaemia/myeloma; diagnosis of any solid cancer on or after 1 July 2020 or currently on any cancer therapy; sickle cell disease/bone marrow failure/aplastic anemia/thalassemia major; primary immunodeficiency disease/HIV infection; persons with disabilities due to intellectual disabilities, muscular dystrophy, acid attack with involvement of respiratory system, persons with disabilities having high support needs, multiple disabilities including deaf‑blindness., The Chairman, Bar Council of Delhi sent a communication to Hon'ble Chief Justice on 01.03.2021 requesting that appropriate directions be issued to the concerned administrative and medical authorities to make available necessary infrastructure in Delhi High Court premises, particularly in medical dispensaries and other appropriate places conducive for vaccination, for vaccination of the members of the judiciary, the employees and staff working in the Delhi High Court, as well as the advocates who throng the Delhi High Court to attend to their cases, by treating them as frontline workers. The communication has been marked by the Hon'ble Chief Justice to one of us (Vipin Sanghi)., The need of the hour is to vaccinate the masses, in view of the raging pandemic, on a war footing so as to secure the life and health of all those who step out of their homes to attend to their avocations and professions. Delhi High Court, by its very nature, is a place which has very high density congregations of people on a daily basis. Hundreds of thousands of cases are listed in any given Delhi High Court complex every day. Apart from judges, the Delhi High Court staff, which is substantial, and advocates who have to attend to their respective cases, a large number of litigants visit the Delhi High Court in which their cases are listed, on a daily basis. Since the cases listed on any given day are mostly different from those listed on the previous day or the next day, the litigants visiting the Delhi High Court constitute a different group from day to day to a great extent. This peculiarity exposes the judges, the Delhi High Court staff, and the lawyers functioning in the Delhi High Court system to the risk of contracting the disease from not only each other but also from the large number of litigants who visit the Delhi High Court every day to attend to their cases. In fact, the number of persons visiting a Delhi High Court complex such as the Tis Hazari Courts on any given day may well be in excess of the number of persons visiting and thronging a hospital for treatment of patients., The Full Court of the Delhi High Court has already taken a decision to re‑open the full‑fledged physical functioning of the Delhi High Court and all courts subordinate to it from Monday, 15.03.2021. Once the Delhi High Court re‑opens fully, there is bound to be a surge in the number of litigants, advocates, Delhi High Court staff and the judges attending the Delhi High Court physically who, till now, have been conducting their cases partially through the online mode and partially physically., There is a clear pattern emerging that the number of COVID‑19 positive cases increases with greater intermingling and congregation of people. Delhi High Court premises and some of the District Courts, and all the court rooms are air‑conditioned. With increased footfall, there is likelihood of the rate of infection amongst those who attend the Delhi High Court spiking once the full‑fledged physical functioning of courts in Delhi resumes., In the light of the aforesaid, prima facie, it appears to us that there is weight in the claim made by the Bar Council of Delhi for declaring all persons associated with the judicial functioning, which includes the judges, the Delhi High Court staff and the lawyers as frontline workers, so that they could receive vaccination on priority and without limitations of their age or physical condition. We may observe that the comorbidities enlisted by the Government to accommodate persons falling in the age group of 45 to 60 years, taken note of hereinabove, are serious conditions from which the judges, the Delhi High Court staff and advocates may, or may not, be suffering. Even if they are not found to be suffering from one of the comorbidities, it does not mean that the risk of their contracting the disease and suffering serious health issues including fatality does not exist. To examine the aforesaid aspects, we are inclined to register this communication of Mr. Ramesh Gupta, Chairman, Bar Council of Delhi dated 01.03.2021 as a Public Interest Litigation., It would be necessary to ascertain the availability of the two vaccinations in use in India, namely COVISHIELD and COVAXIN manufactured by Serum Institute of India and Bharat Biotech., We, therefore, direct issuance of notice to the Secretary, Ministry of Health and Family Welfare, Government of India; the Principal Secretary, Ministry of Health and Family Welfare, GNCT of Delhi; the Serum Institute of India; and Bharat Biotech, returnable on 04.03.2021 before Hon'ble Chief Justice. Notice be issued to the Union of India and GNCT of Delhi through their respective standing counsels. Notice be issued to Serum Institute of India and Bharat Biotech through email. Along with the notice, the communication of Mr. Ramesh Gupta, Senior Advocate, Chairman, Bar Council of Delhi dated 01.03.2021, and a copy of this order shall accompany.
id_595	0	Reserved on: 12.02.2024 Pronounced on: 16.02.2024 The petitioner is before the Supreme Court of India seeking a direction to call for records and quash the order dated 31-01-2024 passed by the first respondent Director, Serious Fraud Investigation Office (SFIO)., The petitioner claims to be a one person company incorporated in 2014 under the Companies Act, 2013 (the Act) with the Registrar of Companies, Bangalore (the Registrar). The petitioner is represented through its Director‑Shareholder. On 28-07-2020 the second respondent Ministry of Corporate Affairs, Union of India addressed a communication to the petitioner observing that a complaint had been received regarding an alleged incorrect address mentioned in Form No.10 filed by the petitioner with the Registrar. The communication never reached the petitioner. A show‑cause notice was issued invoking Section 12 of the Act for alleged non‑maintenance of the registered office at the address mentioned in Form No.10. The petitioner replied that, owing to the COVID‑19 pandemic, the company began to work from home and the registered office had been shifted. Consequently, a notice dated 19-08-2020 was issued by the Registrar directing the petitioner to file an adjudication application under Section 454 of the Act for alleged non‑maintenance of the office. The petitioner submitted the application and the Registrar initiated adjudication proceedings for alleged violation of Section 12 for non‑intimation of change in address as mandated under Section 12(4). An order dated 09-02-2021 imposed a penalty of ₹1,00,000 each on the petitioner and the Director. The petitioner appealed, resulting in reduction of the penalty to ₹20,000. The present issue does not concern the proceedings initiated under Section 12 of the Act., On 29-01-2021 the Registrar addressed a communication of enquiry under Section 206 of the Act to the petitioner regarding certain transactions between the petitioner and Cochin Minerals and Rutile Limited (CMRL). The petitioner was directed to furnish various documents, details and audited bank statements for the years 2014‑15 to 2019‑20. The petitioner responded by furnishing all requested documents, after which the Registrar issued another communication alleging that the trial balance furnished was not proper and directed submission of additional documents. The petitioner has, from time to time, furnished all documents sought by the Registrar through several communications., On 24-06-2022 the Registrar issued a notice directing the petitioner to appear in person at the Registrar's office. After submitting various representations, documents and clarifications, the Registrar again directed personal appearance on the next hearing date, 14-07-2022. The proceedings were before the Registrar under Section 206 of the Act. Despite providing all relevant documents, the Registrar issued a show‑cause notice on 11-08-2023 alleging, inter alia, a related‑party transaction between the petitioner and Kerala State Industrial Development Corporation (KSIDC), which holds a 13.4% share in the company that transacted with the petitioner., A communication/notice was sent to the Director of the petitioner seeking details of several transactions in respect of certain agreements with CMRL. The notice indicated that failure to furnish all details would expose the petitioner to prosecution under Sections 447 and 448 of the Act. The petitioner complied with the requirements, contending that KSIDC is a government company functioning independently with its Board of Directors and has no connection with the family members of the petitioner’s Director., The petitioner became aware of a writ petition filed before the Kerala High Court seeking a direction to the Central Government to initiate investigation into the affairs of the petitioner, CMRL and KSIDC. The writ petition is pending before the Kerala High Court at Ernakulam. The petitioner alleges that media reports indicated an order under Section 210 of the Act was passed by the second respondent directing investigation into the affairs of CMRL, KSIDC and the petitioner, based on reports of the Registrars in Bengaluru and Ernakulam. The petitioner claims no such order was served upon it. Subsequently, the petitioner learned of an order dated 31-01-2024 passed by the second respondent assigning investigation to the Serious Fraud Investigation Office under Section 212 of the Act. Pursuant to that order, the petitioner received notices on 02-02-2024 and 06-02-2024 from the SFIO requesting documents. The petitioner sought an extension of time up to 15-02-2024 and filed the present writ petition on 08-02-2024., Heard: Sri Arvind Datar, learned senior counsel, along with learned counsels Sri Manu Prabhakar Kulkarni, Sri Marinal Shankar, Sri Dharmendra Chatur and Smt Isha Prakash appearing for the petitioner; and Sri K. Arvind Kamath, learned Additional Solicitor General of India, along with Sri H. Shanthi Bhushan, learned Deputy Solicitor General of India appearing for the respondents., The learned senior counsel for the petitioner, Sri Arvind Datar, contended that proceedings under Chapter XIV of the Act, which deal with inspection, inquiry and investigation, commence after issuance of a notice under sub‑section (4) of Section 206. This leads to an order under Section 210 for investigation into the affairs of a company. The documents sought under Section 210 have been submitted, and the proceedings are pending. He submitted that the SFIO could not have been assigned investigation under Section 212 while proceedings under Section 210 were pending, as assignment under Section 212 requires a report under Section 210 and the existence of four specific circumstances listed in sub‑section (1) of Section 212. He further argued that Section 210 contains the same conditions for initiation of investigation except for clause (d) found in Section 212. Therefore, in the public interest, the second respondent cannot assign investigation to another entity when an investigation under Section 210 is already underway, and such assignment amounts to gross misuse of power conferred on the Government of India under the Act., The learned senior counsel further submitted that invoking power under Section 212 requires formation of an opinion that investigation into the company's affairs is necessary; no such opinion was formed in the present case. He also submitted that the petitioner was not served with a copy of the order dated 12-01-2024 ordering investigation under Section 210, nor was it made aware of the assignment to the SFIO under Section 212. Consequently, the order violates principles of natural justice and is malicious. His specific submissions were: (i) once investigation under Section 210 has commenced, it cannot be midway changed or assigned to the SFIO under Section 212; (ii) formation of opinion to invoke Section 212 is imperative, and none was formed, rendering the order a non‑application of mind; (iii) no order initiating investigation under Section 210 or assigning investigation to the SFIO under Section 212 was served upon the petitioner, violating natural justice and constituting malice in law., Per contra, Sri K. Arvind Kamath, learned Additional Solicitor General of India, refuted the petitioner’s submissions, stating that the SFIO is a multidisciplinary body. An interim report submitted by the Inspector who began investigation under Section 210 necessitated assignment to the SFIO. He argued that the SFIO can call for information from any source, facilitating completion of the investigation. He contended that the matter does not involve a transaction of ₹1.70 crore as alleged by the petitioner, but rather a ₹135 crore transaction between CMRL and the petitioner’s company, with funds allegedly transferred to accounts of several political entities. Accordingly, the investigation was rightly assigned to the SFIO., The Additional Solicitor General further contended that once investigation under Section 212 commences, all prior investigations cease to operate. Therefore, the argument that Section 212 cannot be invoked after Section 210 is untenable. He maintained that no right of the petitioner is taken away and no prejudice is caused, as it is merely an investigation by a different entity within the Act. At the investigation stage, there is no legal requirement to inform the person against whom the investigation is conducted. Consequently, natural justice does not apply, and the petition should be dismissed for lack of a ground to entertain it., The learned senior counsel for the petitioner joined issue, stating that the SFIO was established in the wake of major scams such as Sahara India and Jet Airways. While the present case does not involve a scam, it concerns alleged transactions of ₹1.70 crore. He expressed no objection to continuation of investigation under Section 210 but sought quashment of the investigation entrusted to the SFIO., I have given careful consideration to the submissions made by the learned senior counsel and the learned Additional Solicitor General of India appearing for the respective parties and have perused the material on record., The aforesaid facts are not in dispute. The genesis of the problem, as narrated above, requires only a brief elaboration, as the issue merits consideration on the interpretation of the statutory provisions., There are four protagonists in the list. First is the one person company, registered under the Companies Act, before the Registrar of Companies, Karnataka, represented through its Director‑Shareholder. The second protagonist is Cochin Minerals and Rutile Limited, a dormant company with its registered office in Kerala. The third is the Union of India, Ministry of Corporate Affairs, which controls corporate affairs of companies within its ambit. The fourth is the Serious Fraud Investigation Office, a multidisciplinary body under the Ministry of Corporate Affairs, constituted under the Act for detecting and recommending prosecution of corporate crimes., The petitioner, as observed, is a one person company. On 28-07-2020 a communication was sent by the Registrar, Bangalore to the Director of the petitioner stating that a complaint had been received regarding an incorrect address in Form No.10 filed with the Registrar. The communication read: No. ROCB/Complaint/EXALOGIC/2020, Date: 28-07-2020, To Ms. Veena Thaikkandiyil Pravik, Pandialamukku Pinarayi P.O., Thalassary, e‑mail: veena@exalogic.in, Sub: Complaint dated 22-05-2020 received from Mr. Vijay J in the matter of Exalogic Solutions. The office received a complaint that the address of the subscriber/first director in Form 10 was AKG Centre, Palayam, Thiruvananthapuram, Kerala‑695 034. A letter dated 16‑06‑2020 was issued to the company at the registered address calling for an explanation, but it was returned unserved as unclaimed. The petitioner was directed to explain why action should not be taken under Section 12 of the Companies Act, 2013 for non‑maintenance of the registered office. The petitioner replied that, due to the onset of COVID‑19 in March 2020 and a Karnataka Government notification directing IT companies to work from home, the registered office was shifted to work from home. On 19‑08‑2020 the Registrar directed the company to file an adjudication application under Section 454 of the Act for non‑maintenance of the registered office., The petitioner submitted an application on 02‑09‑2020. Based on this, the Registrar initiated adjudication proceedings for alleged violation of Section 12. An order dated 09‑02‑2021 imposed a penalty of ₹1,00,000 each on the company and its Director. The petitioner appealed before the Regional Director, Ministry of Corporate Affairs, and the appellate authority reduced the penalty to ₹20,000. This constitutes one set of proceedings against the petitioner., Around the same time, on 29‑01‑2021 the Registrar sent a communication under Section 206 of the Act, seeking information due to a reference from the Directorate of Enforcement, Bengaluru, regarding transactions between CMRL and the petitioner. The communication directed the petitioner to submit within seven days: (1) certified copies of annual reports, financial statements, directors’ report, audit report and notes to accounts; (2) details of all bank accounts; (3) bank statements; (4) certified copies of statutory registers; and (5) party‑wise trial balance for 2014‑15 to 2019‑20. The petitioner replied by enclosing the requested documents., On 01‑10‑2021 the Competent Authority again sought information under sub‑section (4) of Section 206, requesting a complete trial balance for the last five years, minutes of board and general meetings, and detailed information on loans from Empower India Capital Investments Private Limited, donations, regular receipts from charitable organisations, receipts from CMRL, trade payables and receivables, and employee remuneration. The petitioner was instructed to submit the reply in quadruplicate and also send a soft copy by email., The petitioner replied on 17‑11‑2021, stating that a donation of ₹1,30,000 in FY 2018‑19 was paid to the Chief Minister’s Distress Relief Fund and that the agreement with CMRL was in subsistence. After document scrutiny, the Registrar directed the petitioner to appear in person. On 11‑08‑2023, after further scrutiny of financial statements, several violations were noted, leading to an order dated 12‑01‑2024 under Section 210 of the Act to investigate the affairs of the company in public interest. The order appointed three inspectors—Shri Varun B.S., Deputy Registrar of Companies, Karnataka; Shri K.M. Shanker Narayan, Deputy Director, Office of Regional Director (Chennai); and Shri A. Gokulnath, ROC, Puducherry—and directed them to complete the investigation and submit a report within four months., During the investigation, an interim report was submitted to the Competent Authority, leading to assignment of the investigation to the Serious Fraud Investigation Office under Section 212 of the Act. The interim report indicated that ₹135 crore had been transferred to political entities without accounting, constituting a grave offence affecting public interest. Consequently, on 31‑01‑2024 the Central Government ordered investigation under Section 212(1)(a)&(c) into the affairs of Exalogic Solutions Private Limited, Cochin Minerals and Rutile Limited and Kerala State Industrial Development Corporation Limited, assigning the investigation to the SFIO. Officers designated as inspectors were Shri Prasad Adelli, Additional Director; Shri M. Arun Prasad, Deputy Director; Shri K. Prabhu, Senior Assistant Director; Shri A. Gokulnath, ROC; and Shri K.M.S. Narayan, Deputy Director. Shri M. Arun Prasad, Deputy Director, was appointed as Investigating Officer. The inspectors and the investigating officer were directed to complete the investigation and submit a report within eight months to the Central Government., After the assignment to the SFIO, a notice dated 02‑02‑2024 was issued to the petitioner to produce several documents, treating the notice as one under Section 217(2) of the Act. The petitioner sought time on 07‑02‑2024, contending it had not been served with an order assigning investigation to the SFIO. The following day, the writ petition was filed before the Supreme Court of India, challenging the order dated 31‑01‑2024 assigning the investigation to the SFIO., In view of the submissions made by the learned senior counsel for the petitioner, it is necessary to note the statutory framework. Chapter XIV of the Companies Act deals with inspection, inquiry and investigation and spans Sections 206 to 229. Relevant sections in the present case are Sections 206, 207, 210, 211 and 212. Section 206 provides the Registrar with the power to call for information, inspect books and conduct inquiries when, on scrutiny of any document or information, further information or documents are deemed necessary.
id_595	1	On the receipt of a notice under sub‑section (1), it shall be the duty of the company and its officers concerned to furnish such information or explanation to the best of their knowledge and power and to produce the documents to the Registrar within the time specified or extended by the Registrar. Provided that where such information or explanation relates to any past period, the officers who had been in the employment of the company for such period, if so called upon by the Registrar through a notice served on them in writing, shall also furnish such information or explanation to the best of their knowledge., If no information or explanation is furnished to the Registrar within the time specified under sub‑section (1) or if the Registrar on an examination of the documents furnished is of the opinion that the information or explanation furnished is inadequate or if the Registrar is satisfied on a scrutiny of the documents furnished that an unsatisfactory state of affairs exists in the company and does not disclose a full and fair statement of the information required, he may, by another written notice, call on the company to produce for his inspection such further books of account, books, papers and explanations as he may require at such place and at such time as he may specify in the notice. Provided that before any notice is served under this subsection, the Registrar shall record his reasons in writing for issuing such notice., If the Registrar is satisfied on the basis of information available with or furnished to him or on a representation made to him by any person that the business of a company is being carried on for a fraudulent or unlawful purpose or not in compliance with the provisions of this Act or if the grievances of investors are not being addressed, the Registrar may, after informing the company of the allegations made against it by a written order, call on the company to furnish in writing any information or explanation on matters specified in the order within such time as he may specify therein and carry out such inquiry as he deems fit after providing the company a reasonable opportunity of being heard. Provided that the Central Government may, if it is satisfied that the circumstances so warrant, direct the Registrar or an inspector appointed by it for the purpose to carry out the inquiry under this sub‑section. Provided further that where the business of a company has been or is being carried on for a fraudulent or unlawful purpose, every officer of the company who is in default shall be punishable for fraud in the manner as provided in Section 447., Without prejudice to the foregoing provisions of this section, the Central Government may, if it is satisfied that the circumstances so warrant, direct inspection of books and papers of a company by an inspector appointed by it for the purpose., The Central Government may, having regard to the circumstances by general or special order, authorise any statutory authority to carry out the inspection of books of account of a company or class of companies., If a company fails to furnish any information or explanation or produce any document required under this section, the company and every officer of the company who is in default shall be punishable with a fine which may extend to one lakh rupees and in the case of a continuing failure, with an additional fine which may extend to five hundred rupees for every day after the first during which the failure continues., Conduct of inspection and inquiry. (1) Where a Registrar or inspector calls for the books of account and other books and papers under Section 206, it shall be the duty of every director, officer or other employee of the company to produce all such documents to the Registrar or inspector and furnish him with such statements, information or explanations in such form as the Registrar or inspector may require and shall render all assistance to the Registrar or inspector in connection with such inspection. (2) The Registrar or inspector, making an inspection or inquiry under Section 206 may, during the course of such inspection or inquiry, as the case may be, (a) make or cause to be made copies of books of account and other books and papers; or (b) place or cause to be placed any marks of identification in such books in token of the inspection having been made. (3) Notwithstanding anything contained in any other law for the time being in force or in any contract to the contrary, the Registrar or inspector making an inspection or inquiry shall have all the powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit in respect of the following matters, namely: (a) the discovery and production of books of account and other documents, at such place and time as may be specified by such Registrar or inspector making the inspection or inquiry; (b) summoning and enforcing the attendance of persons and examining them on oath; and (c) inspection of any books, registers and other documents of the company at any place. (4)(i) If any director or officer of the company disobeys the direction issued by the Registrar or the inspector under this section, the director or the officer shall be punishable with imprisonment which may extend to one year and with fine which shall not be less than twenty‑five thousand rupees but which may extend to one lakh rupees. (ii) If a director or an officer of the company has been convicted of an offence under this section, the director or the officer shall, on and from the date on which he is so convicted, be deemed to have vacated his office as such and on such vacation of office, shall be disqualified from holding an office in any company., Investigation into affairs of company. (1) Where the Central Government is of the opinion that it is necessary to investigate into the affairs of a company, (a) on the receipt of a report of the Registrar or inspector under Section 208; (b) on intimation of a special resolution passed by a company that the affairs of the company ought to be investigated; or (c) in public interest, it may order an investigation into the affairs of the company. (2) Where an order is passed by a court or the Tribunal in any proceedings before it that the affairs of a company ought to be investigated, the Central Government shall order an investigation into the affairs of that company. (3) For the purposes of this section, the Central Government may appoint one or more persons as inspectors to investigate into the affairs of the company and to report thereon in such manner as the Central Government may direct., Establishment of Serious Fraud Investigation Office. (1) The Central Government shall, by notification, establish an office to be called the Serious Fraud Investigation Office to investigate frauds relating to a company. Provided that until the Serious Fraud Investigation Office is established under sub‑section (1), the Serious Fraud Investigation Office set up by the Central Government in terms of the Government of India Resolution No. 45011/16/2003Adm‑I, dated 2nd July 2003 shall be deemed to be the Serious Fraud Investigation Office for the purpose of this section. (2) The Serious Fraud Investigation Office shall be headed by a Director and consist of such number of experts from the following fields to be appointed by the Central Government from amongst persons of ability, integrity and experience in, (i) banking; (ii) corporate affairs; (iii) taxation; (iv) forensic audit; (v) capital market; (vi) information technology; (vii) law; or (viii) such other fields as may be prescribed. (3) The Central Government shall, by notification, appoint a Director in the Serious Fraud Investigation Office, who shall be an officer not below the rank of a Joint Secretary to the Government of India having knowledge and experience in dealing with matters relating to corporate affairs. (4) The Central Government may appoint such experts and other officers and employees in the Serious Fraud Investigation Office as it considers necessary for the efficient discharge of its functions under this Act. (5) The terms and conditions of service of Director, experts, and other officers and employees of the Serious Fraud Investigation Office shall be such as may be prescribed., Investigation into affairs of Company by Serious Fraud Investigation Office. (1) Without prejudice to the provisions of Section 210, where the Central Government is of the opinion that it is necessary to investigate into the affairs of a company by the Serious Fraud Investigation Office, (a) on receipt of a report of the Registrar or inspector under Section 208; (b) on intimation of a special resolution passed by a company that its affairs are required to be investigated; (c) in the public interest; or (d) on request from any Department of the Central Government or a State Government, the Central Government may, by order, assign the investigation into the affairs of the said company to the Serious Fraud Investigation Office and its Director, may designate such number of inspectors, as he may consider necessary for the purpose of such investigation. (2) Where any case has been assigned by the Central Government to the Serious Fraud Investigation Office for investigation under this Act, no other investigating agency of the Central Government or any State Government shall proceed with investigation in such case in respect of any offence under this Act and in case any such investigation has already been initiated, it shall not be proceeded further with and the concerned agency shall transfer the relevant documents and records in respect of such offences under this Act to the Serious Fraud Investigation Office. (3) Where the investigation into the affairs of a company has been assigned by the Central Government to the Serious Fraud Investigation Office, it shall conduct the investigation in the manner and follow the procedure provided in this Chapter; and submit its report to the Central Government within such period as may be specified in the order. (4) The Director, Serious Fraud Investigation Office shall cause the affairs of the company to be investigated by an Investigating Officer who shall have the power of the inspector under Section 217. (5) The company and its officers and employees, who are or have been in employment of the company shall be responsible to provide all information, explanation, documents and assistance to the Investigating Officer as he may require for conduct of the investigation. (6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), offence covered under Section 447 of this Act shall be cognizable and no person accused of any offence under those sections shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm may be released on bail, if the Special Court so directs. Provided further that the Special Court shall not take cognizance of any offence referred to this sub‑section except upon a complaint in writing made by (i) the Director, Serious Fraud Investigation Office; or (ii) any officer of the Central Government authorized, by a general or special order in writing in this behalf by that Government. (7) The limitation on granting of bail specified in subsection (6) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. (8) If any officer not below the rank of Assistant Director of the Serious Fraud Investigation Office 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 any offence punishable under sections referred to in sub‑section (6), he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (9) The officer authorized under sub‑section (8) shall, immediately after arrest of such person under such subsection, forward a copy of the order, along with the material in his possession, referred to in that sub‑section, to the Serious Fraud Investigation Office in a sealed envelope, in such manner as may be prescribed and the Serious Fraud Investigation Office shall keep such order and material for such period as may be prescribed. (10) Every person arrested under sub‑section (8) 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 Special Court or Magistrate’s court. (11) The Central Government, if so directs, the Serious Fraud Investigation Office shall submit an interim report to the Central Government. (12) On completion of the investigation, the Serious Fraud Investigation Office shall submit the investigation report to the Central Government. (13) Notwithstanding anything contained in this Act or in any other law for the time being in force, a copy of the investigation report may be obtained by any person concerned by making an application in this regard to the court. (14) On receipt of the investigation report, the Central Government may, after examination of the report (and after taking such legal advice, as it may think fit), direct the Serious Fraud Investigation Office to initiate prosecution against the company and its officers or employees, who are or have been in employment of the company or any other person directly or indirectly connected with the affairs of the company. (14‑A) Where the report under sub‑section (11) or sub‑section (12) states that fraud has taken place in a company and due to such fraud any director, key managerial personnel, other officer of the company or any other person or entity, has taken undue advantage or benefit, whether in the form of any asset, property or cash or in any other manner, the Central Government may file an application before the Tribunal for appropriate orders with regard to disgorgement of such asset, property or cash and also for holding such director, key managerial personnel, other officer or any other person liable personally without any limitation of liability. (15) Notwithstanding anything contained in this Act or in any other law for the time being in force, the investigation report filed with the Special Court for framing of charges shall be deemed to be a report filed by a police officer under Section 173 of the Code of Criminal Procedure, 1973 (2 of 1973). (16) Notwithstanding anything contained in this Act, any investigation or other action taken or initiated by the Serious Fraud Investigation Office under the provisions of the Companies Act, 1956 (1 of 1956) shall continue to be proceeded with under that Act as if this Act had not been passed. (17)(a) In case the Serious Fraud Investigation Office has been investigating any offence under this Act, any other investigating agency, State Government, police authority, income tax authorities having any information or documents in respect of such offence shall provide all such information or documents available with it to the Serious Fraud Investigation Office; (b) The Serious Fraud Investigation Office shall share any information or documents available with it, with any investigating agency, State Government, police authority or income tax authorities, which may be relevant or useful for such investigating agency, State Government, police authority or income tax authorities in respect of any offence or matter being investigated or examined by it under any other law., Section 206 deals with power to call for information, inspect books and conduct of inquiries. It is where on a scrutiny of any document filed by a Company or any information received, if the Registrar is of the opinion that further information is required, he may summon all such information or direct production of all documents. Sub‑section (4) of Section 206 permits the Registrar, if he is satisfied, that there has been certain activities carried on which are fraudulent or unlawful purpose or not in compliance with the provisions of the Act, initiate such inquiry against the Company; Section 207 deals with conduct of inspection and inquiry. Sub‑section (3) of Section 207 permits the Registrar or Inspector making an inquiry to have certain powers akin to civil Court under the Civil Procedure Code; Section 208 deals with mandate of the report of inspection that is made under Sections 206 and 207 of the Act. Section 209 deals with search and seizure; Section 210 forms the first part of the fulcrum in the lis. It deals with the investigation into the affairs of the Company. Section 210 permits the Central Government, if it is of the opinion that it is necessary to investigate into the affairs of the Company, on three circumstances it may order investigation into the affairs of the said Company and they are, (a) on receipt of a report of the Registrar or Inspector under Section 208; (b) on intimation of a special resolution passed by a Company itself and (c) in public interest. For the purpose of investigation under Section 210, sub‑section (3) permits the Government to appoint one or more persons as Inspectors to investigate into the affairs of the Company and to report thereon to the Central Government; Section 211 deals with establishment of Serious Fraud Investigation Office which comes to be established in the year 2015., Section 212 completes the fulcrum of the lis, it deals with investigation into the affairs of a Company by the SFIO, on four circumstances. Investigation can be assigned to the SFIO (a) on receipt of a report of the Registrar or Inspector under Section 208, as is found in Section 210; (b) on intimation by the Company itself as is found in Section 210; (c) in public interest which is also found in Section 210 and what is in addition is, (d) a request from any department of the Central Government or a State Government to assign investigation to the SFIO. What happens once investigation is handed over to the SFIO is also dealt with under sub‑section (2) of Section 212. Any investigation by any agency preceding such assignment will cease to operate. It is on the bedrock of the aforesaid statutory framework, the issue in the lis needs to be considered., What would unmistakably emerge from what is above analysed is, once investigation has commenced under Section 210, the statute does not render the Government of India powerless, to assign the investigation under Section 212 to the SFIO. It neither results in duplication of investigation, nor takes away any right of the petitioner. Sub‑section (2) clearly mandates that once the SFIO is entrusted with investigation under Section 212, any other investigation already initiated shall not be proceeded further and those agencies who are/were conducting any investigation shall transfer all the relevant documents and records in respect of those offences to the SFIO. The powers of SFIO are statutorily determined from sub‑section (3) to sub‑section (17) of Section 212 and for conduct of investigation there is procedure in place which need not require elaboration at this juncture., The submission of the learned senior counsel for the petitioner is that when the proceedings under Section 210 are underway, assignment of investigation to the SFIO cannot take place. The strength on which the said submission is made is that there should be a report under Section 210, as is directed, and only then the investigation can be handed over to the SFIO. The effect of such submission is that handing over of investigation to the SFIO should precede a final report under Section 210. This submission is without merit as it travels on a slippery slope. Section 210 does speak of a report, the report can be either interim or final it need not be the final report only. During an investigation under Section 210, if the Inspectors, out of serendipity, come across information that would prima facie touch upon skullduggery and thereon necessity emerges to assign the investigation to a multi‑disciplinary body like the SFIO, created under the Act, this High Court cannot put shackles on the hands of the Central Government for such assignment. If it had been entrusted to any other agency outside the Act, it would have been a circumstance altogether different. It is entrusted to the SFIO which is created under the Act, i.e., in terms of Section 211 with elaborate functions under Section 212. The protection to any Company from duplication of proceedings is kept tight under sub‑section (2) of Section 212 and above all, it is investigation., A bleak attempt is made by the learned senior counsel to submit that the phrase interim report is found only in sub‑section 11 of Section 212, and nowhere in Section 210 suffers from want of tenability, as observed hereinabove, the report under Section 210 can either be interim or final. The said report will not result in any penalty being imposed straight away against any Company. It is for the purpose of investigation. Investigation is for the purpose of unearthing the alleged unethical activities of any Company, in the case at hand, the petitioner/Company. The Apex Court, in plethora of cases, has observed that with the advancement of technology, economic offences have become a real threat to the functioning of the financial system of the country. Those offences become a great challenge for Investigating Agencies to detect and comprehend intricate nature of transactions, as also the role of persons involved therein. Plethora of minute exercise is expected to be undertaken by any Investigating Agency. It is therefore, to unearth such intricate or minute details about the transactions it becomes necessary to hand it over to a multi‑disciplinary body, like the Serious Fraud Investigation Office. As submitted by the learned Additional Solicitor General, the multidisciplinary body would bring about multi‑departmental correspondence to arrive at any finding. Therefore, no fault can be found with the action of the Union of India, in entrusting the investigation to the Serious Fraud Investigation Office., The second submission is that no reasons are provided to invoke Section 212 of the Act and, therefore, it suffers from non‑application of mind. This is again unacceptable, as this High Court is projected with a problem of investigation being handed over. At this stage, application of mind to hand over the investigation, again in the considered view of the Court, need not form part of the said order. The statement of objections are, in defence of interim report necessitating assignment of investigation. If the Union of India has thought it fit to entrust the investigation to the Serious Fraud Investigation Office, owing to certain factors which have emerged while conduct of investigation under Section 210 and in public interest, this High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not by a stroke of pen, annul such opinion of the Union of India, unless it is contrary to the statute or the action is demonstrably arbitrary. Neither of the two is present in the case at hand, as the projection of the two, by the learned senior counsel for the petitioner is without acceptance. Therefore, there is no warrant to interfere at this stage., Insofar as the judgments relied on by the learned senior counsel in support of his submissions in the case of MODERN MADHYA PRADESH (2016) 7 SCC 353 and in the case of UTTAM DAS CHELA SUNDER DAS, the action impugned does not suffer from any statutory aberration and therefore, the petition does not deserve any entertainment., For the foregoing reasons, petition stands rejected. Consequently, I.A.No.1 of 2024 also stands disposed.
id_597	0	Case: Bail No. 6782 of 2019\nApplicant: Rajveer Singh\nOpposite Party: Union of India\nCounsel for Applicant: Anil Kumar Sharma, Abhishek Singh Pawar, Alok Yadav, Ashwani Kumar Singh Ratho, Kunwar Sushant Prakash, V. K. Pandey\nCounsel for Opposite Party: Digvijay Nath Dubey\nHon'ble High Court, Heard Sri I. B. Singh, learned Senior Advocate assisted by Sri Alok Yadav, learned counsel for the applicant, and Sri Digvijay Nath Dubey, learned counsel for the respondent., By means of this application, the applicant, who is involved in Case Crime No. 02 of 2019, under Sections 8 and 20 of the Narcotic Drugs and Psychotropic Substances Act, Police Station Gomti Nagar, District Lucknow, is seeking enlargement of bail. The facts leading to the prosecution are that a special information tip indicated that a truck loaded with narcotic substances (ganja) was moving from Orissa through Jhansi, Orai, Kanpur, Lucknow to Aligarh. A team of officers of the Directorate of Revenue Intelligence, together with two witnesses, intercepted the truck at Nadarganj around 02:00 PM. The driver, identified as Rakesh Kumar, and his companion Veerpal were apprehended. Initially they denied knowledge of the contraband, but later admitted that they were carrying ganja. A special cavity in the truck yielded 146 packets containing a total of 628.280 kilograms of ganja. The applicant, Rajveer Singh, was implicated through the confessional statements of Rakesh Kumar and Veerpal, and he also gave a statement under Section 67 of the Narcotic Drugs and Psychotropic Substances Act that he purchased the seized contraband with his own money. He was arrested under Section 43 of the Narcotic Drugs and Psychotropic Substances Act., Counsel for the applicant submitted that no contraband was recovered from the applicant’s exclusive possession and that the applicant was not arrested on the spot. The confessional statements of co‑accused Rakesh Kumar and Veerpal have been retracted, claiming they were made under threat, rendering them inadmissible. The applicant was arrested after a long gap from a hotel in Gorakhpur during a business trip, was not produced before any magistrate, and no summons was served to him under Section 67 of the Act. It was alleged that his signature was taken on blank pages and later used to fabricate a confession, which he retracted before the Hon'ble High Court. The applicant is not the registered owner of the vehicle bearing registration number UP 81 AF 3651 from which the ganja was recovered; there is no documentary evidence that Shri Bahoran Singh sold the truck to the applicant five to six years ago. The applicant has no criminal antecedent and has been in jail since 04‑04‑2019. There is no possibility of the applicant fleeing or tampering with evidence, and if released on bail he will abide by all conditions imposed., Counsel for the respondent, Mr. Digvijay Nath Dubey, vehemently opposed the applicant’s submissions, contending that the applicant is fully involved in planning, financing and managing deliveries of commercial quantity of ganja and that his involvement is established through other smuggling acts, including a statement of Shreedam Adhikari dated 10‑05‑2019 in DRI Case No. 08/2019. Co‑accused Rakesh Kumar (driver) and Veerpal, in their voluntary statements under Section 67 of the Act, admitted that they were transporting the seized ganja to Aligarh on the instructions of Rajveer Singh, that he owned the truck purchased from Bahron Singh, and that the applicant, along with Ankit Singh and Rohit Singh, paid Rs 50,000 to Tandon Denter for truck repair and an additional Rs 25,000. In a voluntary statement dated 03‑04‑04‑2019, the applicant confessed that the seized 628.28 kg of ganja was smuggled on his directions and that the money used was his own. A statement by Shreedam Adhikari indicated he supplied ganja to the applicant, and a statement by Bahoran Singh dated 25‑06‑2019 claimed he sold the truck to the applicant five to six years ago, corroborated by Mukesh Kumar. Bail of co‑accused Rakesh Kumar has been rejected by the coordinate bench of this Hon'ble High Court in Bail Application No. 7139(B) of 2019 dated 30‑07‑2020. The respondent submitted that ample credible evidence exists against the applicant and that the twin conditions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act are not satisfied, therefore the bail application should be rejected in the interest of justice., I have heard the learned counsel for the parties and perused the records. There is no dispute that the commercial quantity of ganja is 20 kg, while a total of 628.28 kg was recovered and seized, which is far above the commercial quantity. Consequently, the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act are attracted, in addition to Section 439 of the Criminal Procedure Code, and are mandatory in nature., Section 37 of the Narcotic Drugs and Psychotropic Substances Act provides that no person accused of an offence involving commercial quantity shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application, and (ii) where the Public Prosecutor opposes, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail. These limitations are in addition to those under the Criminal Procedure Code, 1973., The expression ‘reasonable grounds’ has been explained by the Apex Court in Union of India v. Rattan Mallik @ Habul (2009) 1 SCC (Criminal) 83. The Court held that ‘reasonable grounds’ means more than prima facie grounds; it connotes substantial probable cause for believing that the accused is not guilty. The satisfaction of the court on both aspects – that the accused is not guilty and that he is not likely to commit any offence while on bail – is sine qua non for granting bail under the Narcotic Drugs and Psychotropic Substances Act. The Court also clarified that while considering bail under Section 37, the court is not required to make a finding of ‘not guilty’; it only needs to be satisfied that reasonable grounds exist for such belief., In the instant case, the 628.28 kg of contraband ganja was recovered from the truck. The applicant was not named in the FIR and was not present at the spot of recovery. No recovery was made from his possession. His name surfaced only through the confessional statements of co‑accused Rakesh Kumar and Veerpal recorded under Section 67, stating that they were transporting the seized ganja to Aligarh on the applicant’s instructions and that he owned the truck purchased from Bahron Singh. Although Bahron Singh corroborated this claim, the prosecution has failed to produce any documentary evidence or Registration Certificate establishing the applicant’s ownership of the vehicle bearing registration number UP 81 AF 3651. Consequently, there is no material on record to prove ownership by the applicant., A Division Bench of the Supreme Court in Tofan Singh v. State of Tamil Nadu (2013) 16 SCC 31, while referring to the ratio in Raj Kumar Karwal v. Union of India (1990) 2 SCC 409 and Kanhiyalal v. Union of India (2008) 4 SCC, examined whether an officer empowered under Section 42 or Section 53 of the Narcotic Drugs and Psychotropic Substances Act is a ‘police officer’ within the meaning of Section 25 of the Evidence Act, and the scope of power under Section 67. The Larger Bench concluded that a confessional statement made before an officer designated under Section 42 or Section 53 is barred under Section 25 of the Evidence Act and cannot be used to convict an accused. Moreover, a statement recorded under Section 67 of the Narcotic Drugs and Psychotropic Substances Act cannot be used as a confessional statement in the trial of an offence under the Act., In the present case, the Narcotics Bureau relies not only on the statements of the co‑accused implicating the applicant but also on a statement given by the applicant under Section 67 of the Narcotic Drugs and Psychotropic Substances Act. The applicant has been named as an accused on the disclosure statements of Rakesh Kumar and Veerpal. The complicit role of the applicant must be determined by the quality of evidence led at trial. In view of the ratio laid down in Tofan Singh’s case, the applicant is entitled to the benefit of regular bail., Bahoran Singh, in his voluntary statement recorded under Section 67, corroborated the statements of Rakesh Kumar and Veerpal and claimed to have sold the truck to the applicant five to six years ago. However, the prosecution failed to produce any documentary evidence or Registration Certificate to establish the applicant’s ownership of the vehicle bearing registration number UP 81 AF 3651. Under Section 50 of the Motor Vehicle Act, 1988, the transfer of a vehicle must be registered within 30 days of sale, and Section 50(1) obliges reporting of the transfer within 14 days. In Naveen Kumar v. Vijay Kumar & Ors. (2018) 3 SCC 1, the Supreme Court held that even if ownership is transferred, the person whose name remains in the RTO records continues to be liable to a third person. No such transfer was effected in this case; therefore, Bahoran Singh remained the registered owner, and there is no material to prove the applicant’s ownership., In light of the foregoing analysis, I find reasonable grounds under Section 37 of the Narcotic Drugs and Psychotropic Substances Act to believe that the applicant is not guilty of the offence and is not likely to commit any offence while on bail. Accordingly, the bail application is allowed., Let the applicant Rajveer Singh be released on bail in Case Crime No. 02 of 2019, under Sections 8 and 20 of the Narcotic Drugs and Psychotropic Substances Act, Police Station Gomti Nagar, District Lucknow, upon furnishing personal bonds and two reliable sureties each of the like amount to the satisfaction of the Hon'ble High Court, subject to the following conditions: (1) The applicant shall file an undertaking that he shall not seek any adjournment on dates fixed for evidence if the witnesses are present in Court; default will be treated as abuse of liberty of bail. (2) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel; in case of absence without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (3) If the applicant misuses the liberty of bail, a proclamation under Section 82 of the Criminal Procedure Code shall be issued, and failure to appear shall invite proceedings under Section 174-A of the Indian Penal Code. (4) The applicant shall be present in person before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge, and (iii) recording of statement under Section 313 of the Criminal Procedure Code; deliberate default will be treated as abuse of liberty of bail., The observations made herein are solely for the purpose of deciding the instant bail application and shall not in any manner affect the investigation or trial of the case.
id_598	0	Petitioner: Abbas Ansari and another. Respondent: State of Uttar Pradesh and four others. Counsel for petitioner: Upendra Upadhyay. Counsel for respondent: G. A., Jitendra Ojha, Honourable Mrs. Sunita Agarwal, Honourable Vikas Kunvar Srivastav. Heard Sri Upendra Upadhyay, learned counsel for the petitioners; Sri Jitendra Ojha, learned counsel appearing for respondent No. 2; and learned Additional Government Advocate for the State respondents., By means of this writ petition, the petitioners have sought the quashing of the first information report lodged on 4 March 2022, on account of a statement made by petitioner No. 1 during the course of an election meeting on 3 March 2022. The learned counsel for the petitioners submits that, taking cognizance of the statement made by petitioner No. 1 during the election meeting on 3 March 2022, the Election Commission of India passed an order dated 4 March 2022 censoring petitioner No. 1 for violation of the Model Code of Conduct and prohibiting him from holding any public meetings, public processions, public rallies, road shows and interviews and public utterances in media (electronic, print, social media) etc. in connection with the ongoing election for 24 hours from 07:00 PM on 4 March 2022, exercising powers under Article 324 of the Constitution of India., It is submitted that the statement made by petitioner No. 1 during the public meeting was noted by the Election Commission of India while passing the order dated 4 March 2022. In that order, it was noted that the Chief Election Officer, Uttar Pradesh had reported that a first information report under Sections 171F and 506 of the Indian Penal Code, 1860 had been lodged against petitioner No. 1. The submission is that the offence under Section 171F is non‑cognizable and Section 506 was added as a consequence of Section 171F. However, the period of sentence for the said offences being less than seven years and the offences being minor, the police could not have arrested petitioner No. 1. During the course of investigation, it has come to the knowledge of the petitioners that the local police is trying to arrest the petitioners by adding more grave offences such as Section 153A and Section 120B of the Indian Penal Code in Criminal Case No. 97 of 2022, which was registered on the first information report lodged under Sections 171F and 506 of the Indian Penal Code., Petitioner No. 1 moved an application before the Chief Judicial Magistrate, Mau regarding the case wherein he was wanted, and on the said application a report was submitted by the investigating officer, from which the petitioners learned the aforesaid fact. The police report dated 15 March 2022 of Police Station Kotwali Nagar, District Mau is appended as Annexure 5 of the paper book. The learned counsel for the petitioners argues that at no point did the Election Commission of India issue any direction or recommendation for lodging a criminal case against the petitioners for the statement made by him on a public platform. Further, the offence under Section 153A of the Indian Penal Code has been added only in order to ensure the arrest of the petitioner. In any case, petitioner No. 2 has been implicated only because he is the brother of petitioner No. 1 and there is no allegation of any statement made by him. All the sections indicated in the report submitted on 15 March 2022, wherein the petitioners are wanted, would entail punishment of not more than seven years. However, Section 153A being a non‑bailable offence, the petitioners apprehend their immediate arrest., It is further submitted that petitioner No. 1 is an elected Member of Legislative Assembly of Mau constituency and he is being targeted so as not to allow him to take oath of office. Be that as it may, looking to the material on record and the submissions of the learned counsel for the petitioners, we find it a fit case to entertain at this stage., Let a counter‑affidavit be filed by respondents Nos. 1, 3 and 4 within a period of three weeks. One week thereafter is granted to file a rejoinder. Let this matter be posted for 27 April 2022 in the additional cause list. Sri Jitendra Ojha, learned counsel appearing for respondent No. 2, may also file his reply in the meantime. The question of issuing notice to respondent No. 3 will be considered after the response of respondents Nos. 1, 3 and 4 is received. Till the next date of listing, the petitioners shall not be arrested; they shall, however, be under obligation to cooperate in the investigation. In case of any act of non‑cooperation by the petitioners in the ongoing investigation, it would be open for the respondents to approach the High Court of Judicature at Allahabad for vacation of this interim order.
id_599	0	By way of the present writ application the prosecution State of Gujarat has invoked Article 226 and Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 16 April 2016 passed by the learned Additional Sessions Judge, Court No. 15, City Sessions Court, Ahmedabad, in Sessions Case No. 389 of 2013, whereby the learned Judge discharged the respondents‑accused from the charges levelled against them under Section 130 of the Indian Penal Code, 1860., The brief facts for consideration are as follows: there were serial bomb blasts in the city of Ahmedabad in the year 2008. An FIR was lodged with Shahibaug Police Station, Crime Report No. I‑236/2008, for offences punishable under Sections 120(B), 121A, 124A, 153(1)(b)(a), 302, 307, 326, 427, 435, 468 and 471 of the Indian Penal Code read with Sections 3, 5, 6 and 7 of the Explosive Substances Act, also read with Sections 10, 13, 16, 18, 19, 20, 23, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, read with Sections 3 and 4 of the Damage to Public Property Act, read with Sections 25(1)(b)(a) and 27 of the Arms Act, and read with Sections 65 and 66 of the Information Technology Act. In that incident 56 persons lost their lives and 240 persons were injured., Few accused were arrested and charge‑sheeted in connection with the aforesaid offence, culminating in Sessions Case No. 38 of 2009 and others. Charges were framed and the accused were lodged at Sabarmati Central Jail, Ahmedabad., The accused, being prisoners and offenders of offences against the State under Sections 121A and 124A of the Indian Penal Code, are considered enemies of the State. Consequently, the Prisoners Act is applicable to them, and any act committed by the accused that contravenes the Prisoners Act is governed by that Act as well as other criminal law., The first informant, Govindbhai Subedar, on duty on 10 February 2013, discovered a tunnel in Yard No. 4, Barrack No. 4/2 of Sabarmati Central Jail, Ahmedabad, dug by the accused in connivance with each other with an intention to escape from lawful custody. The investigation of the FIR was entrusted to the Crime Branch, Ahmedabad City, by order dated 11 February 2013 passed by the Commissioner of Police, Ahmedabad., The accused were not allowed to attend court proceedings because they were considered offenders of a grave crime. The government passed an order under Section 268 of the Code of Criminal Procedure excluding these accused from attending the proceedings, and the trial was conducted through video conference., The accused conspired to escape by digging a tunnel from the premises of the jail to outside the jail campus, known as “Surangkand”. They were kept in different yards (Yard No. 4 and 5) and planned to escape through the tunnel and run away into the nearby jungle. The accused were well educated, some holding degrees in engineering and MBA, and were conversant with engineering techniques. Accused No. 1, a civil engineer, measured the distance from the jail to the outside and planned the length and depth of the tunnel. All accused obtained equipment to dig the tunnel, conceal it from jail officers, and distract them. They also obtained four books from the library to understand tunnelling techniques. The work was carried out from around 11 October 2012 to 11 February 2013, when jail officers discovered a tunnel near the water tank behind a large tree, approximately 16 feet deep and 196 feet long, outside the jail campus. An FIR, Crime Report No. I‑24/2013, was registered with Ranip Police Station on 11 February 2013 against 14 accused for offences punishable under Sections 224, 120(B) and 511 of the Indian Penal Code and under Section 45 of the Prisoners Act. Subsequent investigation disclosed additional accused. The authority prepared two reports to add Section 130 of the Indian Penal Code dated 27 February 2013 and to add Section 42 of the Prisoners Act dated 29 April 2013. Sanction was given by the concerned authority on 17 May 2013., After completion of the investigation, a charge‑sheet was filed against 24 accused and C.C. No. 102 of 2013 was filed at the Additional Chief Judicial Magistrate, Court No. 11, Ghee‑Kanta, Ahmedabad on 2 October 2013. The accused approached the Sessions Court seeking discharge under Section 227 of the Code of Criminal Procedure, praying that they be discharged from the offences punishable under Section 130 of the Indian Penal Code on the ground that they are not State Prisoners. The learned Sessions Court examined the technical definition of State Prisoner, which is beyond its jurisdiction, and discharged the accused by order dated 16 April 2016 passed by the learned Additional Sessions Judge, Court No. 15, City Sessions Court, Ahmedabad, in Sessions Case No. 389 of 2013. Paragraphs 8, 9 and 10 of that order read as follows: (8) Before the City Sessions Court, Ahmedabad examines the merit‑demerit of the applications with the submissions of both parties, the Court notes that there is no specific legal definition of State Prisoner in the law. The Court considered citations placed by the accused and held that historical background may be taken into consideration while construing the provision. (9) The Court examined Section 130 of the Indian Penal Code and observed that knowledge of the harbourer is an essential ingredient; without knowledge, a person cannot be liable under Section 130. The Court also noted that Section 128 defines State Prisoner as a prisoner confined under regulations for confinement of State Prisoner, and that the accused are not identified as State Prisoners under Bengal Regulation III of 1818. (9.1) The Court found no sufficient evidence or material on record to charge Section 130 against the accused, and held that the report of the Investigating Officer adding Section 130 at a later stage was false and a misreading of the provision. (9.2) The Court observed that the second FIR appears to have been filed to fill gaps in the first FIR by adding names of police personnel, but no police personnel have been arrested or sanctioned for prosecution. (9.3) Consequently, the Court directed that Section 130 of the Indian Penal Code be deleted from the charge‑sheet of Session Case No. 389 of 2013, the committal order of the Additional Metropolitan Magistrate, Court No. 11 be set aside, and the original charge‑sheet be sent to the Chief Metropolitan Magistrate Court, Ahmedabad. The jail warrants of the concerned accused are to be transferred to the Chief Metropolitan Magistrate Court, Ahmedabad. The order is to be intimated to the Police Inspector, Crime Branch, and the Superintendent, Central Jail, Sabarmati, Ahmedabad. The next date of the case is 30 April 2016. No order as to costs. Pronounced in open court on 16 April 2016., The hearing was conducted before the High Court of Gujarat. Learned Public Prosecutor Mr. Mitesh Amin appeared for the writ‑applicant State, assisted by Ms. Maithili Mehta, the learned Assistant Public Prosecutor, and Mr. Vatsa, the learned advocate appearing for the respondents‑original accused. Mr. Amin submitted that the respondents were arrested and are in jail for the FIR lodged with Shahibaug Police Station, Crime Report No. I‑236/2008, for offences punishable under Sections 120B, 121A, 124A, 153(1)(b)(a), 302, 307, 326, 427, 435, 468 and 471 of the Indian Penal Code read with the relevant provisions of the Explosive Substances Act, the Unlawful Activities (Prevention) Act, the Damage to Public Property Act, the Arms Act and the Information Technology Act. He stated that the present writ application seeks a writ of certiorari and/or any other writ, order or direction in the nature of certiorari for quashing and setting aside the order dated 16 April 2016 passed by the learned Additional Sessions Judge. He further submitted that the writ application invokes the inherent powers of the Court for prevention of abuse of process and to secure justice by quashing the impugned order. Mr. Amin argued that the respondents are State Prisoners because the FIR of 2008 involves offences against the State under Sections 121A and 124A of the Indian Penal Code read with Chapter VI of the Unlawful Activities (Prevention) Act, 1967, and that the definition of State Prisoner in The Chambers Dictionary (Deluxe Edition) supports this contention., The learned advocate for the respondents, Mr. S. M. Vatsa, submitted that the special criminal application is not maintainable under Articles 226 and 227 of the Constitution of India because no fundamental right of the writ‑applicant State has been violated by the order of the City Civil & Sessions Court, Ahmedabad, which discharged the accused from the charge under Section 130 of the Indian Penal Code. He contended that the term “State Prisoner” is not defined in the Indian Penal Code or any other statute, and that the classification of the accused as State Prisoners is unwarranted. He further argued that expressions such as “enemies of the State” are colourable and that “Prisoner of War” is a term defined in the Third Geneva Convention and unrelated to offences under Sections 121, 121A, 122, 123 and 125 of the Indian Penal Code. Mr. Vatsa relied on historical legislation, noting that the concept of State Prisoner originated in pre‑independence preventive detention laws and was later repealed. He cited the 42nd Law Commission Report of India and argued that any trial of the respondents as State Prisoners would contravene Article 21 of the Constitution of India. He also pointed out that the additional FIR dated 10 May 2013 (Crime Report No. I‑17/2013) registered with DCB Police Station, Ahmedabad, against nine persons, including the respondents, under Sections 217, 218 and 201 read with Section 120B of the Indian Penal Code, has not resulted in any charge‑sheet or prosecution of police personnel, indicating procedural irregularities., The Court considered the position of law on framing charges under Section 227 of the Code of Criminal Procedure. In Union of India v. Prafulla Kumar Zsamal and Anr., (1979) 3 SCC 4, the Supreme Court of India held that the judge has the power to sift and weigh evidence to determine whether a prima facie case exists, and may discharge the accused if only suspicion, not grave suspicion, is evident. In Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368, the Supreme Court of India reiterated that the judge must not act as a mere mouth‑piece of the prosecution and must consider the broad probabilities of the case, the total effect of the evidence, and any infirmities before framing a charge.
id_599	1	For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal., In the case of State of Tamil Nadu v. N. Suresh Rajan, reported in (2014) 11 SCC 709, the Supreme Court of India observed that while exercising powers under Section 227 of the Code of Criminal Procedure, the Judge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. If two views are equally possible and the Judge is satisfied that the evidence produces some suspicion but not grave suspicion, he will be justified to discharge the accused. The Judge cannot act merely as a post office or a mouthpiece of the prosecution, but must consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, without making a roving enquiry into the pros and cons of the matter., The Court noted that at the stage of consideration of an application for discharge, the Court cannot act as a mouthpiece of the prosecution or as a post office and may sift evidence to determine whether the allegations are groundless so as to pass an order of discharge. The Court proceeds on the assumption that the materials brought on record by the prosecution are true and evaluates them to see whether, taken at their face value, they disclose the existence of all the ingredients constituting the alleged offence. The probative value of the materials is examined, but the Court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. The question is whether there is a ground for presuming that the offence has been committed, not whether there is a ground for convicting the accused. If the Court thinks that the accused might have committed the offence on the basis of the materials on record, it can frame the charge; conviction requires a separate conclusion. The law does not permit a mini trial at this stage. In Sheoraj Singh Ahlawat & Ors. v. State of Uttar Pradesh & Anr., AIR 2013 SC 52, the Supreme Court of India endorsed the view that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence, and that even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence would justify the framing of charge., In the case of State of Rajasthan v. Ashok Kumar Kashyap, reported in (2021) 11 SCC 191, the High Court of Rajasthan, in exercise of its revisional jurisdiction, set aside the order passed by the learned Special Judge framing the charge against the accused under Section 7 of the Prevention of Corruption Act and discharged the accused. The High Court’s reasoning was examined in light of the law and decisions of the Supreme Court of India. In P. Vijayan, the Supreme Court held that at the stage of Section 227, the Judge merely sifts the evidence to find out whether there is sufficient ground for proceeding against the accused. If sufficient ground exists, the Judge frames a charge under Section 228 of the Criminal Procedure Code; otherwise, the accused is discharged. The Judge is not required to enter into the pros and cons of the matter or to weigh and balance evidence, which is the function of the court after the trial starts. In M. R. Hiremath, Justice D. Y. Chandrachud observed that at the stage of considering an application for discharge under Section 239 of the Criminal Procedure Code, the court must proceed on the assumption that the material brought on record by the prosecution is true and evaluate whether, taken on its face value, the facts disclose the existence of the ingredients necessary to constitute the offence. The Court reiterated that the probative value of the materials is to be considered, but the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. The question is whether there is a ground for presuming that the offence has been committed, not whether there is a ground for convicting the accused., The Court applied the principles to the present case and held that the High Court of Rajasthan exceeded its jurisdiction in exercising revisional jurisdiction and acted beyond the scope of Section 227/239 of the Criminal Procedure Code. While discharging the accused, the High Court went into the merits of the case and considered whether, on the basis of the material on record, the accused was likely to be convicted. The High Court examined in detail the transcript of the conversation between the complainant and the accused, which is not permissible at the stage of discharge application or framing of charge. The learned Special Judge, at the stage of framing of charge, considered whether a prima facie case was made out and did not consider the defence of the accused. After finding a prima facie case under Section 7 of the Prevention of Corruption Act, the Special Judge framed the charge. The High Court erred in negating the exercise of considering the transcript in detail and in assessing the likelihood of conviction., The Court observed that at the stage of framing of charge and/or considering the discharge application, a mini trial is not permissible. Even under Section 7 of the Prevention of Corruption Act, an attempt constitutes an offence. Therefore, the High Court erred in effectively conducting a mini trial at the stage of discharge application. The Court will not enter into the merits of the case or the transcript, as those are to be considered at trial. Defence on merits is not to be considered at the stage of framing of charge or discharge application., The impugned judgment and order passed by the High Court discharging the accused under Section 7 of the Prevention of Corruption Act is unsustainable in law and is hereby quashed and set aside. The order passed by the learned Special Judge framing charge against the accused under Section 7 of the Prevention of Corruption Act is restored. The case is to be tried against the accused by the competent court for the offence under Section 7 of the Prevention of Corruption Act, in accordance with law and its own merits., On 10 February 2013, while the first informant Govindbhai Subedar was on duty with other officers of Sabarmati Central Jail, Ahmedabad, a tunnel was discovered in Yard No.4, Barrack No.4/2 of the jail, dug by the accused in collusion with each other. The investigation was entrusted to the Crime Branch, Ahmedabad city by order dated 11 February 2013 passed by the Commissioner of Police, Ahmedabad. The FIR dated 11 February 2013 under Sections 224, 120B, 511 read: The accused gathered at the central backside of Yard No.4, conspired to execute a criminal plan, illegally made a bunker of about 10 to 12 feet in the ground within the prohibited area of judicial custody and attempted to escape from the jail barrack, thereby committing an offence., The authority prepared two reports: one adding Section 130 of the Indian Penal Code dated 27 December 2013, and another adding Section 42 of the Prisoners Act dated 24 September 2013. The report seeking addition of Section 130 in FIR No.24 of 2013 dated 27 February 2013 listed fourteen accused persons residing at Sabarmati Central Jail and charged with offences under Sections 120B, 121A, 124A, 153(1)(B)(C), 302, 307, 326, 427, 435, 465, 468, 471 of the Indian Penal Code; Sections 3, 5, 6, 7 of the Explosive Substances Act; Sections 10, 13, 16, 18, 19, 20, 23, 38, 39, 40 of the Unlawful Activities (Prevention) Act; Sections 3, 4 of the Damage to Public Property Act; and Sections 65, 66 of the Information Technology Act. Permission to file a charge sheet was obtained from the Government of Gujarat under Section 196 of the Criminal Procedure Code., Sanction was accorded on 17 May 2013 under Section 196 of the Criminal Procedure Code, 1973, after noting that an offence was noticed on 12 February 2013 at Central Jail, Ahmedabad, where jail staff caught under‑trial prisoners attempting escape through a tunnel behind the water tank in Yard No.4. An FIR was lodged against the accused at Ranip Police Station (I.C.R. No. 24/2013). Twenty‑four under‑trial prisoners were arrested by the Crime Branch, Ahmedabad, and prima facie evidence was found against them for offences under Section 130 of the Indian Penal Code and Sections 42, 45 of the Prison Act. The sanction allowed prosecution of the accused in connection with I.C.R. No. 24/2013., After completion of investigation, a charge sheet was filed against the twenty‑four accused, culminating in Criminal Case No.102 of 2013 before the Additional Chief Judicial Magistrate Court No.1, Gheekanta, Ahmedabad on 18 May 2013. The charge sheet listed 169 witnesses and 14 seized articles. The Court discharged the accused on the technical ground that the definition of State Prisoner did not apply, and therefore Section 130 of the Indian Penal Code could not be invoked. The prosecution filed the present writ application., The respondents are charged with offences under Sections 121A and 124A of the Indian Penal Code as well as Sections 10, 13, 16, 18, 19, 20, 23, 38, 39 and 40 of the Unlawful Activities (Prevention) Act, and Section 130 of the Indian Penal Code. Section 130 provides that anyone who knowingly aids or assists a State prisoner or prisoner of war in escaping from lawful custody, or rescues, harbours or attempts to rescue such a prisoner, shall be punished with imprisonment for life or up to ten years and may be fined. In the present case, the accused allegedly conspired to escape by digging a tunnel from the jail to the outside campus., The accused were kept in Yards No.4 and 5 and allegedly planned to escape by digging a tunnel to the outside campus and nearby jungle. The prosecution alleges that the accused were well educated, some holding degrees in engineering and MBA, and that one accused, a civil engineer, measured the distance from the jail to the outside and planned the tunnel dimensions. The accused obtained equipment, books, and dug the tunnel from 10 October 2012 to 12 February 2013. The tunnel was approximately six feet deep and 196 feet long, discovered during a jail inspection. This led to the addition of charge under Section 130 of the Indian Penal Code on 27 February 2013 and Section 42 of the Prisoners Act on 29 April 2013., Applying the principles laid down by the Supreme Court of India for exercising jurisdiction under Sections 227 and 239 of the Criminal Procedure Code, the impugned order dated 16 April 2016 passed by the learned Additional Sessions Judge, Court No.15, City Sessions Court, Ahmedabad, is interfered with. The learned Sessions Judge had digressed by relying on Bengal Regulation‑3 of 1818, which has been repealed, and by deciding that the respondents did not fall within the definition of State Prisoner. At this stage, the Court need not consider whether the respondents fall within the definition of State Prisoner, as that is a matter of evidence. The Court must only consider whether a prima facie case is made out. The Sessions Court erred in discharging the respondents without assessing the evidence on the State Prisoner issue., Exercising extraordinary jurisdiction under Article 226 of the Constitution of India read with Section 482 of the Code, the Court quashes and sets aside the order dated 16 April 2016 discharging the respondents. The respondents may raise all contentions available under law at the time of trial. The present writ application is allowed, and Criminal Miscellaneous Application No.1 of 2022 is disposed of.
id_6	0	to regulate the appointment, conditions of service and term of office of the Chief Election Commissioner and other Election Commissioners, the procedure for transaction of business by the Election Commission and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Seventy-fourth Year of the Republic of India as follows:, This Act may be called the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023. It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint., In this Act, unless the context otherwise requires, \Chief Election Commissioner\ means the Chief Election Commissioner appointed under clause (2) of article 324 of the Constitution and in accordance with this Act; \Election Commission\ means the Election Commission referred to in clause (1) of article 324 of the Constitution; \Election Commissioner\ means any other Election Commissioner appointed under clause (2) of article 324 of the Constitution and in accordance with this Act; \Search Committee\ means the Search Committee for preparation of panel of persons for consideration for appointment as Chief Election Commissioner and other Election Commissioners; and \Selection Committee\ means the Selection Committee that recommends appointment of Chief Election Commissioner and other Election Commissioners., The Election Commission shall consist of Chief Election Commissioner; and such number of other Election Commissioners as the President may fix from time to time., The Chief Election Commissioner and other Election Commissioners shall be appointed by the President by warrant under his hand and seal., The Chief Election Commissioner and other Election Commissioners shall be appointed from amongst persons who are holding or have held a post equivalent to the rank of Secretary to the Government of India and shall be persons of integrity, who have knowledge of and experience in management and conduct of elections., A Search Committee headed by the Cabinet Secretary and comprising two other members not below the rank of Secretary to the Government of India, having knowledge and experience in matters relating to elections, shall prepare a panel of five persons for consideration of the Selection Committee, for appointment as the Chief Election Commissioner and other Election Commissioners., The Chief Election Commissioner and other Election Commissioners shall be appointed by the President on the recommendation of a Selection Committee consisting of the Prime Minister as Chairperson; the Leader of Opposition in the House of the People; a Union Cabinet Minister to be nominated by the Prime Minister. For the purposes of removing doubts, it is hereby declared that where the Leader of Opposition in the House of the People has not been recognised as such, the leader of the single largest party in opposition of the Government in the House of the People shall be deemed to be the Leader of Opposition., The appointment of Chief Election Commissioner and other Election Commissioners shall not be invalid merely by reason of any vacancy in or any defect in the constitution of the Selection Committee., The Selection Committee shall regulate its own procedure in a transparent manner for selecting the Chief Election Commissioner or other Election Commissioners. The Selection Committee may also consider any other person than those included in the panel by the Search Committee., The Chief Election Commissioner and other Election Commissioners shall hold office for a term of six years from the date on which he assumes his office or till he attains the age of sixty-five years, whichever is earlier. The Chief Election Commissioner and other Election Commissioners shall not be eligible for re-appointment. Where an Election Commissioner is appointed as Chief Election Commissioner, his term of office shall not be more than six years in aggregate as the Election Commissioner and the Chief Election Commissioner., The salary, allowances and other conditions of service of the Chief Election Commissioner and other Election Commissioners shall be the same as those of the Cabinet Secretary: Provided that the salary, allowances and other conditions of service of the Chief Election Commissioner and other Election Commissioners holding office immediately before the date of commencement of this Act shall not be varied to their disadvantage. If a person who, immediately before the date of assuming office as the Chief Election Commissioner or an Election Commissioner, was in receipt of, or being eligible to draw, a pension (other than a disability or wound pension) in respect of any previous service under the Central Government or a State Government, his salary in respect of service as the Chief Election Commissioner or an Election Commissioner shall be reduced (a) by the amount of that pension; and (b) if he had, before assuming office, received, in lieu of a portion of the pension due to him in respect of such previous service, the commuted value thereof, by the amount of that portion of the pension. The Chief Election Commissioner and other Election Commissioners shall be entitled to dearness allowance as may be admissible to Cabinet Secretary. The Chief Election Commissioner and other Election Commissioners shall be entitled to encashment of fifty per cent of earned leave to his credit at the time of completion of tenure. Where the Chief Election Commissioner or an Election Commissioner had retired from the service of the Central Government or a State Government prior to appointment as such, the aggregate period for which the encashment of unutilised earned leave he shall be entitled, shall be subject to a maximum period as admissible to the Cabinet Secretary., The Chief Election Commissioner or an Election Commissioner may, at any time, by writing under his hand addressed to the President, resign his office. The Chief Election Commissioner and other Election Commissioners shall not be removed except in accordance with the provisions contained in the first and second provisos respectively of clause (5) of article 324 of the Constitution., The Chief Election Commissioner or an Election Commissioner may be granted leave in accordance with the rules for the time being applicable to the service to which he belonged before the date of his appointment and he shall be entitled to carry forward the leave standing at his credit on such date, irrespective of the provisions contained in section 13. The power to grant or refuse leave to the Chief Election Commissioner or an Election Commissioner and to revoke or curtail leave granted to him, shall vest in the President., Where the Chief Election Commissioner or an Election Commissioner was in service of Government, he shall be deemed to have retired from the service on the date on which he enters upon office as the Chief Election Commissioner or an Election Commissioner as the case may be. The Chief Election Commissioner or other Election Commissioners who at the time of his appointment as such, was in service of the Central Government or a State Government, shall at his option to be exercised within a period of six months from the date of such appointment, be entitled to draw his pension and other retirement benefits under the rules applicable to the service to which he belonged, with effect from the date of his appointment as the Chief Election Commissioner or other Election Commissioner. Except where the Chief Election Commissioner or an Election Commissioner demits office by resignation, he shall be deemed, for the purposes of this Act, to have demitted his office only if, (a) he has completed the term of office specified in section 9; or (b) he has attained the age of sixty-five years; or (c) his demission of office is medically certified to be necessitated by ill-health., Every person holding office as the Chief Election Commissioner or an Election Commissioner shall be entitled to subscribe to the General Provident Fund under the General Provident Fund (Central Services) Rules, 1960., Save as otherwise provided in this Act, the conditions of service relating to travelling allowance, medical facilities, leave travel concession, conveyance facilities, and such other conditions of service as are, for the time being, applicable to the Cabinet Secretary, shall be applicable to the Chief Election Commissioner and other Election Commissioners., The business of the Election Commission shall be transacted in accordance with the provisions of this Act., The Election Commission may, by unanimous decision, regulate the procedure for transaction of its business as also allocation of its business amongst the Chief Election Commissioner and other Election Commissioners. All business of the Election Commission shall, as far as possible, be transacted unanimously, and if the Chief Election Commissioner and other Election Commissioners differ in opinion on any matter, such matter shall be decided according to the opinion of the majority., If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, within a period of five years from the date of commencement of this Act, by order not inconsistent with the provisions of this Act, remove the difficulty. Every order made under sub‑section (1) shall, as soon as may be after it is made, be laid before each House of Parliament., Every order made under section 18 shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the order, or both Houses agree that the order should not be made, the order shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that order., The Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991 is hereby repealed. Anything done or any action taken or purported to have been done or taken under the Act hereby repealed shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act. The mention of particular matters in sub‑section (2) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 with regard to the effect of repeal., The matters regarding conditions of service of Chief Election Commissioner and other Election Commissioners, the procedure for transaction of business of the Election Commission, etc., are presently governed by the Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991. The said Act does not contain provisions regarding the qualifications, search committee for preparing panel of persons for consideration and recommendation by the Selection Committee for appointment as Chief Election Commissioner and other Election Commissioners and other incidental provisions., The Honorable Supreme Court of India in Writ Petition (Civil) No. 104 of 2015 (Anoop Baranwal Vs Union of India) declared that the appointment of CEC and ECs shall be made by the President on the basis of advice tendered by a Committee consisting of the Prime Minister, the Leader of Opposition in the Lok Sabha and in case there is no such leader, the leader of the largest party in the opposition in Lok Sabha having the largest numerical strength; and the Chief Justice of India. It has been clarified in the aforesaid judgment that the said norm provided by the Supreme Court will continue to hold good till a law is made by the Parliament., The proposed Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, inter alia, provides for (a) defining various expressions used in the Bill; (b) appointment, qualifications, Search Committee, Selection Committee, term of office, salary, resignation and removal, leave, pension, etc., of the Chief Election Commissioner and other Election Commissioners; and (c) transaction of business and disposal of business of the Election Commission., The Bill seeks to achieve the above objectives. The 4th August, 2023. The Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Bill, 2023, if enacted, is not likely to involve any expenditure either recurring or non-recurring, from and out of the Consolidated Fund of India., to regulate the appointment, conditions of service and term of office of the Chief Election Commissioner and other Election Commissioners, the procedure for transaction of business by the Election Commission and for matters connected therewith or incidental thereto. (Shri Arjun Ram Meghwal, Minister of State (I/C) for Law & Justice and Minister of State of Parliamentary Affairs and Culture )
id_60	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, arguing 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 at hand, 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 Section 376B and Section 498A of the Indian Penal Code and 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. 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 deliberations 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 of Criminal Procedure 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 the fact 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., Contrary to the contention of the petitioners, the impugned provisions do not suffer from manifest arbitrariness or discrimination. For petitioners to seek striking down of the impugned provisions on the touchstone of Articles 14, 15, 19 and 21, they would have to discharge the onus that the impugned provisions are unconstitutional. The contention that they are not unconstitutional is based on the following submissions: Under the Indian Penal Code, sexual offences fall under Chapter XVI which relates to offences affecting the human body, while offences concerning marriage and cruelty by the husband or relatives of the husband fall under Chapters XX and XXA respectively.
id_60	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, Matrimonial Women’s Trust (MWT), 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 a minimum of ten years’ imprisonment, which may extend to life, whereas Section 376B provides a minimum of two years, extendable 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 described under Section 375 of the Indian Penal Code requires legislative intervention. The respondent does not argue that a husband who indulges in a sexual act without the wife’s consent should go scot‑free; rather, the objection is to subject him to 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 to aggrieved women., It is important to note that 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. The magistrate is also empowered to 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, unlike Nepal. Although personal laws differ for various religions, the provisions of the Indian Penal Code apply to all citizens. The marital rape exception benefits all irrespective of faith or identity. 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. Concepts in vogue in western countries 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 there has been a violation of Article 14 because a wife located in a western country can file a complaint about sexual abuse, while the same remedy is not available to a wife located 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 courts cannot extend the meaning of words or expressions used in a statute; therefore, 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 the purview of Section 375, is taken out of its realm by Exception 2 appended to that section only to protect society, i.e., the institution of marriage. Marriage is a social institution with social, economic, cultural and religious ramifications, and has been accepted 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 including 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 that the parties have been living separately for one year or more. Section 13(1A) allows a decree for divorce after a judicial separation of one year or when a decree of restitution of conjugal rights remains unsatisfied for the said period. Section 16 seeks to provide legitimacy to children born from a void or voidable marriage., 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. There is no emotional relationship between a sex worker and the perpetrator, whereas the relationship between husband and wife comprises mutual rights and obligations that are social, psychological, religious and economic., Same 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 as well as other statutes to obtain redress, including Sections 323 to 326, 326A, 326B, 328, 336, 352, 354, 354A, 354B, 354C, 355, 498A, 304B, 506 and 509 of the Indian Penal Code, and provisions of the Domestic Violence Act., Forced sexual intercourse between a husband and wife cannot be treated as rape; at worst, 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., Under the Code of Criminal Procedure, a different procedure has been provided for offences relating to marriage, as reflected in Sections 198, 198A and 198B of the Code, and Sections 113A and 113B of the Indian Evidence Act. For other offences, the Evidence Act provides for drawing presumptions under Sections 111A and 114A. It cannot be said that because rape is a heinous crime, Parliament should have provided the death penalty in all such cases. Sections 376A, 376AB, 376DB and 376E of the Indian Penal Code provide for the death penalty, whereas offences under Sections 376(2) and 376D have different punishments., The importance of conjugal rights in marriage is reflected in Section 9 of the Hindu Marriage Act, which concerns restitution of conjugal rights. The remedy is available to both spouses, and 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 the latitude to provide different punishments for different offences, as illustrated by the varying treatment of 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 and thereby creating an offence., The Independent Thought judgment read down the marital rape exception but did not create an offence. That judgment is binding for the issue raised therein and has no application to the matters before this Court., 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 of the Constitution., The Supreme Court, via the decision in Vishaka v. State of Rajasthan, (1997) 6 SCC 241, endeavoured to fill a legislative vacuum concerning sexual harassment of women in workplaces while exercising powers under Article 32 of the Constitution. 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_60	2	In support of this proposition, submissions were advanced by Mr Colin Gonsalves, Ms Karuna Nundy and the two amici appointed by the Supreme Court of India i.e., Mr Rajshekhar Rao and Ms Rebecca John, Senior Advocates., Mr 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 in the matter 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, according to Mr Gonsalves, the Union of India took the position that it was necessary to implead various State Governments to obtain their opinion and avoid complications that might arise 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, an additional affidavit dated 3 February 2022 and a further additional affidavit dated 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 had entered into an arranged marriage with Mr Aizaz Saifi on 4 December 2016 and, at that juncture, she 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 the 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 Saifi, was already involved in an extra‑marital relationship with another woman, whom he eventually married on 16 April 2017 without providing any maintenance to Ms Saifi. The writ 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, and that Ms Saifi was raped by her husband. It was emphasized that Ms Saifi was not provided medical aid either by her husband or by her in‑laws and that she was not allowed to use her mobile phone; the only means of communication with the outside world was through her husband's phone, and even those conversations were recorded. Mr Gonsalves pointed out that in these circumstances she approached an NGO for shelter, which led to Ms Saifi filing a First Information Report with the Crime Against Women Cell at South East District, Srinivaspuri, Delhi, on 12 June 2017., Besides the facts involving Ms Saifi, Mr Gonsalves made several general submissions. He prefaced his arguments with the issues that, in his view, arose for consideration in the instant cases, which formed the broad contours of his submissions., He argued that the marital rape exemption (MRE) was manifestly arbitrary as it sought to decriminalise a crime as heinous as rape. He contended that Section 376B of the Indian Penal Code was unconstitutional because it created a distinction between husbands who are not separated from their wives and those who are separated, bringing the latter class of husbands within the definition of rape for forced sexual intercourse under Section 375 while prescribing a lesser punishment for such a crime. He emphasized that rape is a heinous crime with multiple consequences, including mental trauma and severe medical effects, and that 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. He noted that there is no rationale for distinguishing between married and unmarried men who subject women to forced sexual intercourse. He asserted that marriage cannot be a relevant consideration in concluding whether a criminal offence has been committed. He maintained that the rape of a woman by her husband was unconstitutional from inception and is being put to test only now. He further argued that, in view of the passage of time and a better understanding of gender equality, the MRE should not be permitted to remain on the statute. He rejected the distinction drawn between Western and Indian values concerning marital rape as untenable in law, stating that 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. He urged that this Court should not desist from examining the constitutionality of the impugned provisions merely because it is impossible to prove the occurrence of marital rape, as it sometimes happens within the confines of a household. He also cautioned that the Court should not refrain from examining the constitutionality of the MRE because some women may file false complaints against their husbands., He further submitted that the distinction drawn concerning the offence of rape between those who are married and those 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 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 impede a constitutional court from examining the vires of the marital rape exemption., 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 ten years and life; the insinuation that the sentence should be much less is flawed. This argument is also put forth to defend the retention of the marital rape exemption on the statute. These submissions are premised on an erroneous understanding of the role of constitutional courts. The Court cannot resolve all complications that concern sentencing; that is a function entrusted to Parliament and to the facts of a particular case. All that is required of the 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 Parliament to step in and take the necessary next steps, including whether a husband found guilty of rape should be visited with a lesser punishment., It is important to note that both the courts 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 the marital rape exemption 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 conduct that does not meet with the approval of 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, the marital rape exemption 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 the marital rape exemption should be rejected outrightly by the Court. How 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 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 delivered belongs to the world and thus, such observations cannot bind judges, lawyers and members of the public in other cases. If there is parity, 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 Bombay 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 to argue that he has 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 this Court were to nullify the marital rape exemption, women victims may not lodge complaints and may suffer silently as social change does not occur automatically with the alteration in law alone. It may be said that it would be the first important step towards a real change and education of women in respect of their own bodily rights., 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 organisations 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 that until marital rape is declared explicitly to be an offence, it will continue to be condoned. 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 Association (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 the marital rape exemption. 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 of Criminal Procedure create a separate and 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, this Court had dismissed the challenge raised to the marital rape exemption 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 this 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 8 September 2017 passed by this Court.], The ratio decidendi of the Independent Thought case would apply while testing the constitutional validity of the marital rape exemption 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 119 at paragraph 13., Applying the inversion test, it was submitted that the 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) The marital rape exemption creates an artificial distinction between married and unmarried women. (iv) A 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) The marital rape exemption is discriminatory as it creates an anomalous situation where the husband can be prosecuted for lesser offences but not rape. (vii) Removing the marital rape exemption 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 this 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 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 the marital rape exemption 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 of the Constitution, 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 48‑50; 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 this 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. As such statutes, the courts should play the role of activist. [See Government of Andhra Pradesh v. P. Laxmi Devi, (2008) 4 SCC 720 at paragraph 88, and Government of Andhra Pradesh v. G. Jaya Prasad Rao, (2007) 11 SCC 528.], The marital rape exemption 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 marital rape exemption 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 the muster of Article 14. To satisfy Article 14, the impugned provisions must have intelligible differentia between classes and a rational nexus with the legitimate objects sought to be achieved., The marital rape exemption 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 of Criminal Procedure and Section 376B of the Indian Penal Code provide 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 are manifestly arbitrary and bad in law. [See Joseph Shine at paragraphs 168, 169 and 182.], The argument for retaining the marital rape exemption is not supported by any determining principle. Those who support this view have not been able to establish how removing the marital rape exemption 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 the Justice Verma Committee Report. Therefore, the argument that the marital rape exemption finds mention in the statute to protect the institution of marriage is not an adequate determining principle. The marital rape exemption 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 this 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 the marital rape exemption 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. Central Bureau of Investigation, (2014) 8 SCC 682 at paragraph 58.], The pre‑constitutional object of the marital rape exemption was to protect the conjugal rights of husbands. After the enactment of the Constitution, 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.', The marital rape exemption 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 the marital rape exemption, 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, (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 the marital rape exemption 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. 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, 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 Hindu Marriage Act and judgment rendered by this Court in Harvender Court v. Harmander Singh, AIR 1984 Delhi 66 as also the decision rendered by the Supreme Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4 SCC 901.] 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. The marital rape exemption, 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 the marital rape exemption, 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 thereby 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 the marital rape exemption 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., The marital rape exemption 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 the marital rape exemption 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, the marital rape exemption 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, the marital rape exemption 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_60	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 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 victim‑wife 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 firstly 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. That 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 support of her submissions, Ms John drew our attention to the relevant provisions of the draft Indian Penal Code and the relevant notes appended thereto, the observations made by the Indian Law Commissioners in their “First Report on Penal Laws, 1844” and the resultant modification brought about in Section 375 when it was first incorporated in the Indian Penal Code., 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_60	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 at paragraphs 22, 36, 69, 70‑72; and other UN reports cited., 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. Thus, even for the sake of argument, it is accepted that the Indian Penal Code recognizes that marital relationship is distinct from other relationships, but no rational nexus is discernible between the exception carved out in Section 375 and the object sought to be achieved by the provision, which is 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 in the direction of 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 provisions to be struck down include Section 375 of the Indian Penal Code, Sections 376B of the Indian Penal Code and Section 198B of the Code of Criminal Procedure., 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., 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 when the offender holds a position of trust. The latter provision 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 this court should defer to the wisdom of 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 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 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 court to strike down an unconstitutional provision, not to amend a policy decision. Consequently, the instant case 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 because there exists a differentiation between married and unmarried couples, the exception should be sustained, is flawed. 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 the statute as a whole for special enactments, the purpose of the specific provision becomes relevant for general enactments such as the Indian Penal Code. The same differential—marital status—may be used as the 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. If the opposite were true, the exception would have to make an explicit alteration in the nature of consent required in a marital relationship, which it does not., 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 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 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, 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 protects 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 it was 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 to be 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 is irrelevant; such matters concern trial and evidentiary procedure and cannot render the classification reasonable or non‑arbitrary. 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 committed by a husband on his wife 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. Such an offence is not only against the victim but 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 Section 351 (assault), Section 354A (sexual harassment) or Section 354 (outraging modesty) trivialises an act with grave and irreversible 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 striking down the Marital Rape Exception 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 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 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 2 to Section 31 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. The law in Nepal has been amended to criminalise the act, albeit with lesser punishment than rape by a stranger. Each of these decisions recognises that such an exception is repugnant, illogical, an abuse of the married woman's human rights and unable to withstand scrutiny. In India, these aspects militate against the continuation of the Marital Rape Exception., In sum, the submission is that this 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 look at 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_60	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 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 was noted that a woman may be convicted as principal in the second degree in rape (R. v. Ram, 17 Cox, 609, 610 n., Bowen, L.J.). 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 observed in R. v. Clarence, 22 Queen's Bench Division 23., A perusal of the 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—that a husband cannot be held guilty of committing rape upon his wife. R. v. Clarence [1888] 22 Queen's Bench Division 2332 was a case in point, demonstrating that the proposition did not stand on firm ground., The English courts later found ways to dilute the common law doctrine that once a woman entered matrimony she gave irrevocable consent to sexual communion with her husband. The offence of rape was formally defined for the first time in the United Kingdom with the enactment of the Sexual Offences (Amendment) Act, 1976, which amended the Sexual Offences Act, 1956. The Act defined rape as unlawful sexual intercourse with a woman who does not consent, and the man knows or is reckless as to her lack of consent., A close examination of the definition shows that the inclusion of the word \unlawful\ alongside \sexual intercourse\ left a possibility of a defence based on the common law doctrine when the offender was the husband and the victim his wife., This issue came to the fore in a case that travelled to the House of Lords of the United Kingdom from a judgment of the Court of Appeal (Criminal Division) in R. v. R. The Court of Appeal had rejected the appeal of a husband convicted of raping his wife and had read down the marital rape exception (MRE) that a husband cannot be guilty of raping his wife because her consent was deemed irrevocable upon marriage., The decision of the House of Lords in R. v. R. impelled the Parliament of the United Kingdom to amend the Criminal Justice and Public Order Act, 1994 by incorporating Section 142, which made the law gender‑neutral and removed the word \unlawful\ from the definition of rape, thereby eliminating the marital rape exception as a defence., In India, the draft Indian Penal Code originally contained Clause 359, which defined rape and included an exception: \Sexual intercourse by a man with his own wife is in no case rape.\ This clause reinforced the marital rape exception without providing protection for girl‑children who were married at a very young age., Clause 359 used the expression \own wife\ rather than \just wife,\ a surplusage that reflected the legislators' belief that a husband had an unhindered right to sexual intercourse with his wife regardless of consent. Note B on the Chapter of General Exceptions indicated that the exception in favour of the conjugal rights of the husband belonged wholly to the law of rape and did not affect any other part of the Code., The Indian Law Commissioners' report, paragraphs 444 and 445, highlighted concerns about the exception for wives, especially child‑brides. The report noted that protection should be given to wives who are minors until they are of age to reside with their husbands, and suggested that the exception be excluded where 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 that a man commits rape except in the case of his own wife, provided the wife was not under ten years of age. The section listed six circumstances, including intercourse against the woman's will, without consent, or with consent obtained by fear, among others, and provided an exception for a wife not under ten years of age., Section 376 of the Indian Penal Code, as originally enacted, prescribed punishment for rape as transportation for life or imprisonment for a term which may extend to ten years, together with a fine., The amendment enacted by Act 43 of 1983 raised the age threshold in the sixth circumstance of Section 375 from under ten years to under sixteen years, while retaining an exception for a wife not under fifteen years of age. It also added a fifth circumstance that disregarded consent obtained from a woman who was of unsound mind, intoxicated, or administered a stupefying substance, thereby renumbering the previous fifth circumstance as sixth., Act 13 of 2013 further raised the age threshold for an unmarried girl‑child to under eighteen years, expanded the definition of rape by inserting clauses (a) to (d) describing various sexual acts, added Explanations 1 and 2, and renumbered the marital rape exception as Exception 2., The Criminal Law (Amendment) Act, 2018 (No. 22 of 2018) introduced 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., A dissonance existed between the threshold for a child‑bride subjected to sexual intercourse by her husband (under fifteen years) and the threshold for an unmarried girl‑child (under eighteen years) until the Supreme Court of India rendered its judgment in Independent Thought, raising the threshold for a child‑bride to under eighteen years., In Independent Thought, the Supreme Court of India examined the ambit of the marital rape exception in the context of a child‑bride, noting the incongruity between the sixth circumstance of Section 375 and the Protection of Children from Sexual Offences Act, and consequently raised the age limit for a child‑bride to under eighteen years., The petitioners relied on Independent Thought to argue that its observations on the marital rape exception should apply to married women aged eighteen years and above, a position contested by intervenors who urged that the status quo remain until the legislature intervenes., Messrs Sai Deepak and Kapoor, among others, argued that the court should not examine the issue because it lacks the capacity to accommodate all stakeholders, contending that only the executive or the legislature should exercise such power. They maintained that if the court were to strike down the marital rape exception under Article 226 of the Constitution of India, it would effectively perform a legislative act, thereby blurring the doctrine of separation of powers and depriving the \Bhartiya Legislature\ of its right to examine the issue after a consultative exercise., The argument of judicial restraint fails to recognize the fundamental concepts subsumed in the Constitution of India. The framers drew from various models, including the United States Constitution, the Constitution Acts of the British Parliament establishing federal constitutions 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 is responsible to the legislature., The Constitution of India does not adopt the doctrine of separation of powers in absolute rigidity. Instead, it differentiates the functions of the legislature, executive and judiciary, allowing the executive to exercise delegated legislative powers and, when empowered, limited judicial functions, while prohibiting the executive from contravening constitutional provisions or any law., The Indian Constitution incorporates features of the United States Bill of Rights in its Chapter on Fundamental Rights, and adopts Directive Principles of State Policy similar to those of the Irish Free State. The Preamble opens with \WE, THE PEOPLE OF INDIA,\ reflecting American influence. Chief Justice B.K. Mukherjea, in Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955) 2 SCR 225, explained that the executive power is the residue of governmental functions after legislative and judicial functions are taken away, and that the Constitution does not contemplate one organ assuming the essential functions of another., Under Article 53(1) of the Constitution of India, the 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 formal head of the executive, with real executive powers residing in the Ministers and the Cabinet, mirroring the parliamentary executive system of the United Kingdom., 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, while the legislature and executive must operate within constitutional limits.
id_60	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 quasi‑judicial 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) SCC 651 and Shrimanth Balasaheb Patil v. Karnataka Legislative Assembly, III Judicial Restraint.], Having 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 includes the Marital Rape Exception (MRE)) are violative of married women's fundamental rights under Article 14, Article 15, Article 19(1)(a) and Article 21 of the Constitution. The argument suggests 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 a 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 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 includes MRE) 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 lis. 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 MRE 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 court 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 SCC OnLine US SC 40, at page 711, Clark, J.; also see A.K. Roy v. Union of India, (1982) 1 SCC 271, paragraphs 26‑27; and Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 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 SCC 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 court 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., 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 MRE are problematic., Section 375. 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 to 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, the urethra or anus of a woman or makes her to 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 body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: First, against her will; Secondly, without her consent; Thirdly, 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 of hurt; Fourthly, 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; Fifthly, 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; Sixthly, with or without her consent, when she is under eighteen years of age; Seventhly, 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 the reason only of that fact be regarded as consenting to the sexual activity., The circumstances listed above are seven in number. Besides this, the section includes two explanations, i.e., Explanations 1 and 2. With Explanation 2, a proviso is appended. In addition thereto, two exceptions are carved out, i.e., Exceptions 1 and 2. Exception 2, i.e., Marital Rape Exception (MRE), is in the cross‑hair of the instant challenge laid before the Supreme Court of India., Therefore, the import of the provision, i.e., Section 375, at present, is as follows: That one or more sexual acts referred to in Clauses (a) to (d) would constitute rape if the victim is a woman aged 18 years and above and finds herself in one or more of the seven circumstances set forth therein., The first circumstance alludes to a situation when sexual act(s) are committed against her will, which would mean that while the woman‑victim is in possession of her senses and, therefore, even though capable of giving her consent, does not give her consent to participation in the sexual act. In other words, the expression \against her will\ involves an element of resistance and opposition by the victim., The second circumstance, \without her consent\, in my opinion, would be an act which is not accompanied by intelligent deliberation as to the nature and consequences of the sexual act or is based on a false misrepresentation of a fact at the time when the act was committed or by subjecting the victim to inevitable compulsion such as fear of injury or death. Therefore, there may be a certain amount of overlap between the first and the second circumstance. The consent given in inevitable circumstances which tantamount to submission would overlap with the third and fifth circumstance., The third circumstance addresses a situation where, although the woman victim is said to have given her consent, the law disregards it if it is obtained by putting the woman‑victim or any person that she is interested, in fear of death or hurt., Likewise, in the fourth circumstance, the law disregards the woman victim's consent when the offender knows that he is not the woman victim's husband and while giving consent, she believes that the offender is another person to whom she is or believes herself to be lawfully married. The instance that perhaps could fall in this circumstance could be, say, the case of identical twins., The fifth circumstance where the law disregards the woman's consent if, at the time when the woman‑victim gives her consent, she is found to be unsound of mind or intoxicated or has been administered by the offender personally or through another any stupefying or unwholesome substance, disabling her from understanding the nature and consequences of the act to which she is said to have given consent., Thus, in situations covered by the fourth and fifth circumstances, even though the sexual acts are committed with the consent of the concerned woman, they are disregarded, as in one case the consent is obtained by putting the woman‑victim in fear while in the other situation the offender employs a deception of a particular kind., The sixth circumstance covers a situation where a girl child is subjected to sexual acts, adverted to in Clauses (a) to (d) of Section 375. The law in such situations considers the girl victim's consent immaterial or of no consequence given the fact that she is under 18 years of age., The seventh circumstance is self‑explanatory as it covers the situation where the woman victim is unable to communicate consent., The aforementioned circumstance as also the other circumstances adverted to in Section 375 must be read with Explanation 2, which provides what would constitute consent. According to Explanation 2, consent means an unequivocal voluntary agreement whereby a woman communicates her willingness to participate in a specific sexual act and this communication can be made via words, gestures or any form of verbal or non‑verbal communication. The proviso makes it clear that only because a woman does not physically resist the act of penetration shall not, because of this fact alone, be construed that the woman‑victim consented to sexual activity. Thus, mere passivity or lack of resistance to a sexual act cannot be construed as consent., Explanation 1 advertises the fact that the vagina includes labia majora, which are the two outer folds of the vulva, i.e., the external part of the female genitalia. It appears that Explanation 1 has been incorporated to dilate and perhaps remove the possibility of a defence being raised that the sexual activity described in Clauses (a) to (d) of Section 375 did not involve the concerned female's genitalia and hence did not constitute rape., Exception 1 excludes medical procedure or intervention from the offence of rape., Exception 2, i.e., Marital Rape Exception (MRE), in effect saves from the rigour of the main provision which deals with the offence of rape one category of offender (i.e., a husband) even though he subjects his wife, who is not under 18 years of age, to sexual acts described in Clauses (a) to (d) of Section 375., Section 376 provides for punishment for rape, which, as prescribed, is rigorous punishment with a mandatory minimum sentence of 10 years, with a possibility of it being extended to imprisonment for life besides being mulcted with a fine as well. Section 376(2) covers cases of aggravated rape which include rape committed in custody, by a relative, guardian or teacher or by a person in a position of trust or authority, and on women placed in vulnerable circumstances accompanied by an element of depravity. In cases covered under Section 376(2), the minimum mandatory sentence is 10 years which can extend to imprisonment for life; which, as the provision clarifies, means imprisonment for the remainder of that person's natural life, in addition to being burdened with a fine., Besides this, the other forms of aggravated rape are, inter alia, covered under Sections 376A (causing death resulting in a persistent vegetative state of the victim) and 376D (gang‑rape). The punishment prescribed for these offences is much harsher. Under Section 376A, even a death sentence can be imposed on the offender., Section 376B (read with 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 punishment prescribed for an offence covered under the said provision is less rigorous. The prescribed minimum mandatory sentence of imprisonment is two years, which may extend to seven years, accompanied by imposition of a fine., Thus, a careful perusal of the aforementioned provisions, in particular Section 375, would demonstrate the following. Section 375 is concerned with the acts described in Clauses (a) to (d) which would morph into an offence of rape if committed in the seven circumstances, alluded to therein. Absent the seven circumstances, the acts described in Clauses (a) to (d) of Section 375 do not acquire a criminal hue., A close reading of the circumstances would reveal that except for the sixth circumstance (which concerns a girl‑child under 18 years of age), willingness (as in the first circumstance) and consent (as in the second to fifth and seventh circumstances) form the basis of separating acts which are lawful from those which are construed as unlawful. The circumstances are clearly agnostic to the relationship between the offender and the woman victim. Therefore, whether the offender is a stranger or a partner in a live‑in relationship, he would fall within the purview of the offence of rape if he commits sexual acts with a woman victim, as described in Clauses (a) to (d) of Section 375, under the seven circumstances. Consequently, every woman victim, except a married woman, has the right to trigger criminal proceedings against the offender if she is subjected to forced sexual activity., The firewall that is created via Exception 2 to Section 375/MRE vis‑vis an offending husband, who subjects his wife to a non‑consensual sexual act, is thus the main focus of the petitioners' challenge in the writ petitions., In defence of the impugned provisions, in particular MRE, the following broad arguments are advanced. (i) First, the distinction that MRE makes between married and unmarried women is constitutionally viable. (ii) Second, the Indian Penal Code itself contains provisions which are relationship‑centric. (iii) Third, the legislature has provided various avenues to enable a victim to seek redressal against spousal violence. In this context, reference was made to Section 376B and Section 498A of the Indian Penal Code, as also to the provisions of the Domestic Violence Act. (iv) Fourth, the husband has a conjugal expectation to inter alia have sex with his wife. (v) Fifth, 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. In other words, the State has a legitimate interest in protecting the institution of marriage. (vi) Sixth, there is a palpable and real apprehension that striking down MRE could result in the lodgment of false cases. (vii) Seventh, if the husband is prosecuted for marital rape, it would result in the State invading a married couple's private space. Being a closed space, it would be well‑nigh impossible for the State to collect evidence concerning the allegation of rape. (viii) Eighth, the striking down of MRE would create a new offence by criminalising an act which up until now was not construed as an offence. The Supreme Court of India is not vested with such power; this power is reserved well and truly for the legislature., To answer the question as to whether a classification based on the relationship between the offender and victim is constitutionally viable, one would have to examine whether the classification has an intelligible differentia with the object which is sought to be achieved. There can be no doubt that the legislature seeks to punish offenders who are guilty of committing rape; this principle is the bedrock on which Section 375 of the Indian Penal Code is founded. It cannot, perhaps, also be doubted that there is a differentia between married, separated and unmarried couples. However, what needs to be established once the differentia is accepted is whether the differentia between married and unmarried couples has a rational nexus with the object, which the main provision seeks to achieve, that is, protecting a woman from being subjected to a sexual act against her will or her consent. MRE does not meet the nexus test as it grants impunity to an offender based on his relationship with the victim. In other words, it grants impunity qua an act which would otherwise fall within the offence of rape under the main provision only for the reason it is committed within the bounds of marriage., The classification, in my opinion, is unreasonable and manifestly arbitrary as it seems to convey that forced sex outside marriage is \real rape\ and that 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 in the case of a married woman it is not even put to test. A sex‑worker has been invested with the power to say \no\ by the 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 only 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 at present is completely skewed insofar as married women are concerned. To a woman who is violated by her husband by being subjected to the vilest form of sexual abuse (i.e., rape) 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, MRE, in my view, violates the equality clause contained in Article 14 of the Constitution. Article 14 of the Constitution not only guarantees that the State shall not deny to any person equality before the law but also guarantees that every person within the territory of India will have equal protection of the laws. MRE 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 MRE is without doubt unreasonable., The test as to what is construed 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.' But it is in this sense, and in this sense only, as I conceive, that the question of unreasonableness can properly be regarded. A bye‑law is not unreasonable merely because particular judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there.\, If one were to apply the aforesaid test the only conclusion that can be drawn is that the classification between married and unmarried couples in the context of forced sex is not just unequal in its operation but is also manifestly unjust. MRE, in my opinion, is also oppressive as it can find no justification in the minds of reasonable men, for law makers 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 PyareLal, (1976) 3 SCC 167. (ii) Maharashtra State Board of Secondary & Higher Secondary Education & Anr. v. Paritosh Bhupeshkumar Sheth & Ors., (1984) 4 SCC 27. (iii) Shri Sitaram Sugar Co. Ltd. & Anr. v. Union of India & Ors., (1990) 3 SCC 223. (iv) Supreme Court Employees' Welfare Association v. Union of India & Anr., (1989) 4 SCC 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 or the statute. 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 to refer to them individually would be a parade of the familiar 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_60	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 Uttar Pradesh v. Deoman Upadhyaya, (1961) 1 Supreme Court Reporter 14, as the negative aspect of equality. The equal protection of the laws in Article 14 has been borrowed from the Fourteenth 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: (Supreme Court Reporter pp. 34‑35: All India Reporter p. 1134, paragraph 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 Supreme Court Reporter 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 person 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 Supreme Court of India 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 Supreme Court Reporter 476 and Maneka Gandhi v. Union of India, (1978) 2 Supreme Court Reporter 621, and went on to hold 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 of 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 or impugned provision. In doing so, the Court should disregard remote and indirect consequences that may entail by virtue of the impugned statute or provision. 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, which is, 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 kick‑in 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 IPC prevents disclosure of the identity of a rape victim except in certain circumstances. Section 26 of the Code provides that offences concerning rape/aggravated rape shall be tried as far as practicable by a court presided 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 offence of rape, while 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/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 by him/her or upon an application being made by any party. 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., Relationship‑centric provisions in the Indian Penal Code: This brings me to the argument that there are other provisions in the IPC 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 that is 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 IPC, which provide for exceptions on account of the marital relationship would show 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 IPC which broadly concern prosecution for offences for 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 was made and which emerges upon a plain reading of these provisions is that these are not provisions where the deserter, escapee, offender or robber/dacoit commits an offence on the harbourer with whom she or he 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 IPC that ring‑fence defendants from prosecution based on a marital relationship are in the context of the aforesaid discussion completely misconceived., A married woman can take recourse to other remedies: The submission made that there are avenues available both in the IPC and other statutes which can be taken recourse by a woman‑victim to agitate her grievance concerning sexual violence again fails to recognize the fact that none of them brings within its fold the offence of rape. Section 498A of the IPC 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 which is 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 IPC., Likewise, other provisions of the IPC such as Section 304B (concerning dowry death) and Section 306 (concerning abetment of suicide) do not bring within its 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 would distinctly bring forth the point that it was enacted to protect women against domestic violence. The Statement of Objects and Reasons acknowledges that the remedies available under the 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 the occurrence of domestic violence in society. The fact that Section 498A of the IPC 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 said Act, a magistrate can pass protection orders and likewise, issue a slew of directions under Section 19. In particular, it was pointed out that under sub‑section (2) of Section 19, the magistrates routinely issue directions for the registration of an FIR to protect or provide safety to the aggrieved person. It was pointed out that besides this, the magistrate also has power under Section 20 to grant monetary reliefs which, inter alia, require the respondent to make good the loss of earnings and/or to 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 IPC 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 other 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 said 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; The Parsi Marriage and Divorce Act, 1936; and the Divorce Act, 1969.], Conjugal expectation: The submission that the husband has conjugal expectation to have sexual communion with his wife, in my opinion, is tenable as long as the expectation is not equated to an unfettered right to have sex without 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 an attachment of property., Conjugal expectations, though legitimate during the subsistence of a joyful marriage, cannot be put at par with unbridled access and/or marital privilege claimed by the husband vis‑a‑vis the wife disregarding the circumstances which obtain at the given point in time as also her physical and mental condition., Non‑consensual sexual intercourse is not labelled as rape to save the institution of marriage. 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, to my mind, 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, perhaps, are 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/or remedies where it becomes unworkable. The Hindu Marriage Act, Special Marriage Act, Domestic Violence Act and other legislations are illustrations of the role assigned to the State concerning the recognition of marriages, their dissolution and provision of remedies for aggrieved parties which includes maintenance/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. Section 375, 376, 376B and other appurtenant provisions contained in the IPC for aggravated rape and the Domestic Violence Act are prime examples of the 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 IPC, in my opinion, needs to be called out as rape as that is one of the ways in which society expresses its disapproval concerning the conduct of the offender. Oddly, the 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 IPC 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 IPC concerning hurt (Section 319 read with Section 321 & 323), grievous hurt (Section 320 read with Section 322 & 325) or cruelty (Section 498A) does not provide a satisfactory answer as to why a sexual assault which is synonymous with rape should not be labelled as rape when the offence is committed on an adult married woman by her husband., Lodgement of false cases: 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, what is required to be kept in mind is that a vast number of women, married or unmarried, do not report sexual assaults because of the stigma attached to it. The most authentic data which was 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 Government of India, Ministry of Health and Family Welfare for 2015‑2016. The data placed before us disclosed that the survey appears to have been conducted among married women (falling between the age of 15 to 49 years). The survey revealed disturbing aspects concerning spousal sexual violence, both from current husbands as well as former husbands; apart from the fact that 99 % of the sexual assault cases remain unreported. Table 16.6 Persons committing sexual violence among women aged 15‑49 who have experienced sexual violence, percentage who report specific persons committing sexual violence according to current marital status and age at first experience of sexual violence: Person – Ever married – Never married – <15 years – 15 years or higher – Don’t know – Total. Current husband 82.6 % 83.1 % 86.0 % 47.8 % 77.0 %. Former husband 9.2 % 9.8 % 10.0 % 4.0 % 8.6 %. Therefore, the apprehension expressed 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, if I may say so, is suggestive of the fact 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 IPC have been cited before us. In my view, the apprehension is, firstly, exaggerated and, as indicated above, is not backed by empirical data; the data in fact shows that the contrary is true. 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, to other provisions of the IPC as well. Section 498A of the IPC is a case in point. Despite noticing oddities in certain cases and/or false complaints being lodged the legislature has not been spurred into removing the provision from the statute; I presume for three reasons: First, statistically, the number of false cases is minuscule. Second, it is a beneficial provision which protects a married woman from atrocities that may be inflicted on her by the husband or his family. Third, the Courts have been able to deal with such cases appropriately., Thus, this being the track record of Courts up until now, no one need entertain doubts that the Courts would not be able to employ the same rigour qua 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., 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 laid to the Marital Rape Exception, it would be a case of throwing the baby out with the bathwater., Invasion of private space: As regards 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 very 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, the investigators are undoubtedly empowered to enter the concerned couple’s private space, which in joyful times is the preserve of a married couple. The attempt to keep away the law even 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 rights of the women 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 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 are concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny., Gathering evidentiary material would be difficult: Likewise, the argument that collection/gathering of evidence would be difficult in cases involving marital rape is, in my view, no different from the impediments faced by an investigator 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 and/or mating or propel the persons involved to create evidentiary record concerning every act of intimacy or have third‑party witness the act, trivializes the sexual abuse inflicted on a woman. This argument, as observed hereinabove, stems from a pre‑conceived notion that married women lack a sense of proportion or are inherently manipulative. The argument lacks substance because if this submission were to be 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 persons such as 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 was considered by it in its Working Paper No. 116.
id_60	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 Supreme Court of India 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 the Supreme Court of India for severing what is unconstitutional and retaining that which is construed as lawful. Fourthly, the Marital Rape Exception (Exception 2 to Section 375 of the Indian Penal Code) seeks to ring‑fence the offender based on his marital relationship with the accused. The main provision is neutral to the relationship that may or may not subsist between the offender and the victim. Thus, a person who is a stranger or is in a live‑in relationship with the victim can be prosecuted for the offence of rape. As a matter of fact, the legislature pursuant to the Criminal (Amendment) Act, 2013 has brought within the sway of rape law even separated husbands by inserting Section 376B in Chapter XVI of the Indian Penal Code; a provision which is challenged by the petitioners on different grounds. Fifthly, what is principally punished under the criminal law is the act of omission or commission, as etched out in the Indian Penal Code. Section 40 of the Indian Penal Code which defines an offence, inter alia, provides: Except in the Chapters and sections mentioned in clauses 2 and 3 of this section, the word offence denotes a thing made punishable by this Code. In Chapter IV, the word offence denotes a thing punishable under this Code, or under any special or local law as hereinafter defined. And in Sections 141, 176, 177, 201, 202, 212, 216 and 441, the word offence has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of six months or upwards, whether with or without fine. Likewise, the expression offence is also defined in Section 2(n) of the Code which reads as follows: 2(n) offence means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle‑trespass Act, 1871. Besides this, the Code also defines the expression victim in Section 2(w)(a) which reads as follows: 2(w)(a) Victim means 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 aforesaid definitions of the expression offence and victim would show that an act or an omission to commit an act is treated as an offence only if it is made punishable by any law whether it be the Indian Penal Code or any special or local law. In other words, acts which produce or are likely to produce harmful effects as contemplated under the penal law are punishable. In the same way, omissions which produce or are likely to produce a similar harmful effect that the law seeks to plug are punished likewise. That being said, there are certain omissions that the law does not punish as is evident from the scheme of the Indian Penal Code. Therefore, the penal law is act/omission centric and, in most situations, is neutral to who the perpetrator of the crime is. The fact that in certain cases (which includes provisions that find a place in the Indian Penal Code or special statutes such as the Juvenile Justice Act, 2015) relationship enters the fray does not dilute the fundamental premise on which penal laws are pivoted, which is that they punish the act committed (or its omission); which is made punishable, irrespective of the relationship between the offender and the victim. As noticed above, for example, qua the offence of harbouring a deserter, an offender, an escapee or a robber or a dacoit, the Indian Penal Code excludes the spouse from the rigour of prosecution. These provisions and the like would not sustain the argument that the Marital Rape Exception should remain on the statute as, firstly, the dissonance that the Marital Rape Exception creates by excluding a particular set of offenders from the ambit of the main provision is not found in such examples. Secondly, these are provisions which do not concern the perpetration of sexual violence by one spouse on the other, i.e., the husband on his wife., The submission made by Mr Sai Deepak that the judgments cited on behalf of the petitioners i.e., Shreya Singhal and Navtej Singh Johar would have no applicability as they relate to a constitutional challenge to a criminalising provision i.e., Section 66A of the Information Technology Act and Section 377 of the Indian Penal Code respectively is unsound as it fails to recognise the fact that the Marital Rape Exception is constitutionally suspect because it suffers from under‑inclusivity and fails to furnish a determining principle as to why offending husbands should be left out from the rigour of rape law. The judgment of the House of Lords in R v R made a particularly significant observation in this context (i.e., creation of new offence) while dealing with the expression unlawful sexual intercourse found in the UK Sexual Offences (Amendment) Act, 1976. The Supreme Court of India was called upon to ascertain whether the word unlawful which preceded the expression sexual intercourse was a mere surplusage and not implying, outside marriage. The House of Lords ruled that the word unlawful was redundant since it was, even otherwise, unlawful to have sexual intercourse with any woman (married or unmarried) without her consent: The fact is that it is clearly unlawful to have sexual intercourse with any woman without her consent, and that the use of the word in the subsection adds nothing. In my opinion there are no rational grounds for putting the suggested gloss on the word, and it should be treated as being mere surplusage in this enactment, as it clearly fell to be in those referred to by Donovan J. That was the view taken of it by this House in McMonagle v Westminster City Council (1990) 1 All ER 993, (1990) 2 AC 716 in relation to paragraph 3A of Schedule 3 to the Local Government (Miscellaneous Provisions) Act 1983. I am therefore of the opinion that Section 1(1) of the Act of 1976 presents no obstacle to this House declaring that in modern times the supposed marital exemption in rape forms no part of the law of England. The Court of Appeal (Criminal Division) took a similar view. Towards the end of the judgment of that court Lord Lane CJ said that the remaining and no less difficult question is whether, despite that view, this is an area where the Supreme Court of India should step aside to leave the matter to the parliamentary process. This is not the creation of a new offence, it is the removal of a common law fiction which has become anachronistic and offensive and we consider that it is our duty having reached that conclusion to act upon it. The argument that the House of Lords in R v R was dealing with a provision which was not akin to the Marital Rape Exception, although literally correct, disregards the reasoning furnished by the Law Lords in concluding that the expression unlawful was a surplusage. The defendant's plea that a husband cannot be held guilty of raping his wife was based on the Common Law Doctrine of implied consent given by the wife once she entered matrimony. This defence was rejected by the trial court as well as the Court of Appeal (Criminal Division) and, ultimately, found resonance with the House of Lords. The ratio of the judgment in R v R is squarely applicable, to my mind, to the issue at hand, both for the proposition that striking down the Marital Rape Exception does not create a new offence and that if such a step is taken, the Supreme Court of India need not leave the matter to the legislature., Thus, for the reasons given above, I am not persuaded to hold that striking down the Marital Rape Exception would result in the creation of a new offence. Although, as noticed above, the petitioners relied upon the decision rendered in Independent Thought which, in turn, noticed the decision in R v R, I have consciously not gone down that path because of the observations made by the learned judges that their rulings would not apply to the Marital Rape Exception concerning an adult woman. That said, it is important to observe that, even though the binding effect of the judgment rendered in Independent Thought may have been diluted, the observations made therein would surely have persuasive value. As adverted to hereinabove, the Supreme Court of India in Independent Thought was also dealing with Exception 2 appended to Section 375 of the Indian Penal Code, albeit that part which concerned a child bride. The Supreme Court of India after examining the provisions of the Indian Penal Code and appurtenant statutes, read down Exception 2 and, in effect, declared that it would not apply if the sexual intercourse or sexual act was committed by a man with his wife, who was under 18 years of age. Thus, the age threshold concerning the girl‑child was brought in line with the sixth circumstance outlined in the main part of Section 375. The age threshold provided in Exception 2 for the wife stands enhanced from under fifteen years of age to under eighteen years of age; to that extent, the impunity granted to the offending husband stands diluted. Therefore, as per the present state of law, if a husband has forced sex with his wife, who is under 18 years of age, he is liable to be prosecuted for rape as the principle of implied consent would not apply in his case. That said, the logic, rationale and reasoning provided by the Supreme Court of India in Independent Thought while reaching this conclusion surely has immense weight which cannot be brushed aside., VI. The Marital Rape Exception violates Article 21 of the Constitution. Apart from the fact that the Marital Rape Exception, in my view, falls foul of the equality clause of the Constitution, it also violates Article 21 of the Constitution. The reason being that the offence of rape and injury caused remains the same irrespective of who the offender is. The fact that the rapist is the husband of the victim does not make the act of sexual assault any less injurious, degrading or dehumanising. Irrespective of who the perpetrator is, forced sex mars the woman‑victim physically, psychologically and emotionally. Rape, as an offence, deserves societal disapprobation in the strongest terms, notwithstanding the fact that the rapist is in a marital relationship with the victim., Modern‑day marriage is a relationship of equals. The woman by entering into matrimony does not subjugate or subordinate herself to her spouse or give irrevocable consent to sexual intercourse in all circumstances. Consensual sex is at the heart of a healthy and joyful marital relationship. Non‑consensual sex in marriage is an antithesis of what matrimony stands for in modern times i.e., the relationship of equals. The right to withdraw consent at any given point in time forms the core of the woman's right to life and liberty which encompasses her right to protect her physical and mental being. Non‑consensual sex destroys this core by violating what is dear to her, which is her dignity, bodily integrity, autonomy and agency and the choice to procreate or even not to procreate. While marital rape leaves physical scars, it inflicts much deeper scars on the psyche of the victim which remain with her years after the offence has occurred., What makes the continuance of the Marital Rape Exception on the statute egregiously problematic is that, while it emasculates the woman's right to trigger prosecution against her husband for non‑consensual sex, women who are sex workers or are separated from their husbands are invested with this right. Besides this, the Marital Rape Exception makes no allowance for the circumstances in which a wife may say no to sex. For example, a wife may refuse to engage in sexual activity with her husband when she is ill or is menstruating or is unable to engage in sexual activity because of a sick child. The wife may also want to keep away from sexual activity in a situation where the husband has contracted an infectious, sexually transmissible disease, such as HIV; her refusal in such a situation may emanate not only on account of concern for herself but also to protect the progeny which may result from such communion. These aspects only exacerbate the lack of autonomy and sexual agency which stands embedded in the Marital Rape Exception., Even in the nineteenth century when the Common Law Doctrine was in play (i.e., that a husband could not be held criminally liable for raping his wife), difficulty was experienced in applying the doctrine, which was noticed in R v Clarence (1886‑1890) All ER Rep 133: (1888) 22 Q.B.D 23. This was a case where the husband was accused of having sexual intercourse with his wife at a time when, to his knowledge, he was suffering from gonorrhoea. It was found that the wife was ignorant of this fact. The argument was, had she known, she would not have consented to the sexual communion. In this backdrop, the Supreme Court of India was called upon to consider whether the husband's conviction could be sustained under Section 20 and/or Section 47 of the Offences Against the Person Act, 1861. Section 20 was concerned with unlawfully and maliciously inflicting grievous bodily harm while Section 47 concerned the offence of assault occasioning actual bodily harm. One of the arguments the Supreme Court of India was required to consider was whether the wife's implied consent to intercourse stood revoked. This case was heard by thirteen judges out of which four rendered a dissenting opinion and, hence, sustained the conviction. The dissenting opinion of Hawkins, J. brings to fore the discomfort that the judges holding minority view experienced with the plurality opinion, which ruled against convicting the offending husband. Hawkins, J. opined that if the law was, as understood by the majority, he did not wish to be party to such a judgment which would proclaim to the world that the law in England is that even though the husband deliberately and knowingly perpetrated such abominable outrage on his wife he could not be punished for such atrocious barbarity. The following observations are significant: I proceed now to consider the question whether there was, in fact, an assault by the prisoner on his wife occasioning her either grievous or actual bodily harm. I answer this question, also, in the affirmative. By the marriage contract a wife no doubt confers upon her husband an irrevocable privilege to have sexual intercourse with her during such time as the ordinary relations created by such contract subsist between them. For this reason it is that a husband cannot be convicted of a rape committed by him upon the person of his wife. But this marital privilege does not justify a husband in endangering his wife's health and causing her grievous bodily harm, by exercising his marital privilege when he is suffering from a venereal disorder of such a character that the natural consequence of such communion will be to communicate the disease to her. Lord Stowell in Popkin v Popkin said: The husband has a right to the person of his wife, but not if her health is endangered. So to endanger her health and cause her to suffer from loathsome disease contracted through his own infidelity cannot, by the most liberal construction of his matrimonial privilege, be said to fall within it; and although I can cite no direct authority on the subject, I cannot conceive it possible to doubt that a wife would be justified in resisting by all means in her power, even to the death, if necessary, the sexual embraces of a husband suffering from such contagious disorder. In my judgment wilfully placing his diseased person in contact with hers without her express consent amounts to an assault. It has been argued that to hold this would be to hold that a man who, suffering from gonorrhoea, has communion with his wife might be guilty of the crime of rape. I do not think this would be so. Rape consists in a man having sexual intercourse with a woman without her consent, and the marital privilege being equivalent to consent given once for all at the time of marriage, it follows that the mere act of sexual communion is lawful; but there is a wide difference between a simple act of communion which is lawful, and an act of communion combined with infectious contagion endangering health and causing harm, which is unlawful. It may be said that assuming a man to be diseased, still as he cannot have communion with his wife without contact, the communication of the disease is the result of a lawful act, and therefore cannot be criminal. My reply to this argument is that if a person having a privilege which he may avail himself of or not at his will and pleasure cannot exercise it without at the same time doing something not included in this privilege and which is unlawful and dangerous to another, he must either forego his privilege or take the consequences of his unlawful conduct. Another argument used for the prisoner was that such cases as the present were not contemplated by the statute under which he was indicted; and it was also said that if it had been intended that the communication of a venereal disease to a woman during an act of sexual intercourse consented to by her should be punishable as a crime, some special enactment to that effect would have been introduced into one of the Acts of Parliament relating to women and offences against them. This argument I attach no weight to, assuming the facts bring the case within the fair interpretation of the sections to which I have referred. I think the legislature contemplated the punishment of all grievous bodily harm, however caused, if caused unlawfully and maliciously; and I cannot bring my mind for an instant to believe that, even had the circumstances before us been present to the minds of the framers of the Act, they would have excluded from its operation an offence as cruel and as contrary to the obligation a man owes to his wife to protect her from harm. Fortified in my opinion, as I believe myself to be, by the plain words of the statute and by the authority of Willes, J., one of the greatest and most accurate lawyers of modern times, I have arrived at the conclusion that this conviction is right and in accordance with the law, and I cannot, therefore, be a party to a judgment which in effect would proclaim to the world that by the law of England in this year 1888 a man may deliberately, knowingly, and maliciously perpetrate upon the body of his wife the abominable outrage charged against the prisoner, and yet not be punishable criminally for such atrocious barbarity., Coincidentally, around the same time, in and about July 1890, a similar view was expressed in India by the Calcutta High Court in Queen‑Empress v Hurree Mohun Mythee (1891) ILR 18 Cal 49. In a nutshell, the view was that the husband's absolute right to marital privilege had to be hemmed in bearing in mind the wife's health and safety. The Supreme Court of India observed: Now, gentlemen, I must begin by asking you carefully to distinguish a certain branch of the law which has no connection with this case from other branches of the law which may have a connection with it. The branch of the law which has no connection with this case is the law of rape. It is probably within the knowledge of you all, gentlemen, that the crime of rape consists in having sexual intercourse with a female either without her consent, or when she is of such an age that she cannot in law consent, and that the crime consists in the fact of intercourse independently of circumstances, of intention, of knowledge, and of consequences. And, in the case of married females, as you probably know, the law of rape does not apply as between husband and wife after the age of ten years. But it by no means follows that because the law of rape does not apply as between husband and wife, if the wife has attained the age of ten years, that the law regards a wife over ten years of age as a thing made over to be the absolute property of her husband, or as a person outside the protection of the criminal law. That of course cannot be supposed. Under no system of law with which the Supreme Court of India has had to deal in this country, whether Hindu or Mahomedan, or that framed under British rule, has it ever been the law that a husband has the absolute right to enjoy the person of his wife without regard to the question of safety to her as for instance, if the circumstances be such that it is certain death to her, or that it is probably dangerous to her life. The law, it is true, is exceedingly jealous of any interference in marital matters, and very unwilling to trespass inside the chamber where husband and wife live together, and never does so except in cases of absolute necessity.
id_60	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 a Criminal Court; 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 Indian Penal 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 Supreme Court of India is also empowered to impose a fine. Furthermore, under Section 198B of the Code, no Supreme Court of India 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 having been lodged by the wife against her husband. Thus, Section 376B of the Indian Penal Code and Section 198B of the 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 MRE was struck down, then the 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 shows 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 within the rape law who are in a position of trust or have authority over the woman‑victim. The persons specifically identified in this clause 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 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, in my opinion, 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 is that they would lead to harsher punishment as compared to husbands who are separated and covered under Section 376B and, therefore, the MRE should not be struck down. This argument 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., Presumption of constitutionality of pre‑constitutional statutes: 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. 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 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 Civil Appeal 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., the principle remains that obiter dicta may have persuasive weight., 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 should be taken differently by lower courts, the entire law in relation to 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 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 dicta 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 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 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 well as Article 18 of the United Nations Covenant on Civil and Political Rights, 1966, it was held (John Vallamattom case (2003) 6 SCC 611, 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 26‑01‑1950, but the Court is not precluded from taking into consideration subsequent events. It is further trite that a law, although may be 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., Reliance on decisions of foreign courts and international covenants and conventions: 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, 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., 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 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 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 national law or international law at the time it was committed., Therefore, the husband's argument before the European Court of Human Rights 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 European Court of Human Rights should not consider his conduct in relation to any of the exceptions of the immunity rule. The Court 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 which was available at one point in time against the charge of marital rape. The decisions of the Court of Appeal and then the House of Lords continued a perceptible line of case‑law development dismantling the immunity of a husband from prosecution for rape upon his wife. There was no doubt, as of 12 November 1989, that a husband who forcibly had sexual intercourse with his wife could, in various circumstances, be found guilty of rape. Moreover, there was an evident evolution, consistent with the essence of the offence, of the criminal law through judicial interpretation towards treating such conduct as within the scope of the offence of rape. This evolution had reached a stage where judicial recognition of the absence of immunity had become a reasonably foreseeable development of the law.
id_60	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 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 that case the Supreme Court of India found that the petitioner had been sexually abused by her husband. The petitioner 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 licence 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 succour 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 that 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 compared with 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 the Jolly George Varghese case 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 aforesaid 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 means an act of gender‑based violence, which includes, inter alia, marital rape. Marital rape is recognised as an offence in more than fifty countries. Ignoring this rich resource material would be to our own peril., Both Mr Sai Deepak and Mr Kapoor have called for judicial self‑restraint because, despite several debates on the merits and demerits of the Marital Rape Exception 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 behalf. Messrs Sai Deepak and Kapoor are right that despite the views expressed for and against retaining the Marital Rape Exception 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 intercede in the matter. Otherwise I am convinced that the Marital Rape Exception, as it stands, is violative of married women's fundamental rights under Articles 14, 15, 19(1)(a) and 21 of the Constitution. 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 examination by the Court as to the constitutional validity of the Marital Rape Exception. The observations made by the Supreme Court of India in Navtej Singh Johar are apposite: the fact that the legislature has chosen not to amend the law, despite the 172nd Law Commission Report specifically recommending deletion of Section 377, may indicate that Parliament has not thought it proper to delete the provision, but this is a neutral fact which need not be taken into account. All that the Court has to see is whether constitutional provisions have been transgressed and, if so, the death knell of the challenged provision must follow., The Justice Verma Committee, after a deep dive into the prevailing ecosystem concerning rape law, both within and outside the country, made several observations. The exemption for marital rape stems from a long‑out‑dated notion of marriage which regarded wives as the property of their husbands. According to 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 all recognition. Lord Keith, speaking for the Court, declared that marriage is now regarded as a partnership of equals and no longer one in which the wife is the subservient chattel of the husband. The European Commission of Human Rights in C.R. v. United Kingdom endorsed the conclusion that a rapist remains a rapist regardless of his relationship with the victim, acknowledging that this change was in accordance with the fundamental objectives of the European Convention on Human Rights. Similar developments have occurred in Canada, South Africa and Australia. In Canada the provisions in the Criminal Code that denied criminal liability for marital rape were repealed in 1983. South Africa criminalised marital rape in 1993, and Section 5 of the Prevention of Family Violence Act 1993 provides that, notwithstanding anything to the contrary in any law or in the common law, a husband may be convicted of the rape of his wife. In Australia the common‑law marital rape immunity was legislatively abolished in all jurisdictions by 1991. Justice Brennan of the High Court of Australia observed that the old common‑law fiction was offensive to human dignity and incompatible with the legal status of a spouse., These jurisdictions have also gone further and 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 emphasised that the relationship does not change the nature of the inquiry into whether the complainant consented to the sexual activity. In South Africa the 2007 Criminal Law (Sexual Offences and Related Matters) Amendment Act provides at section 56(1) that a marital or other relationship between the perpetrator and the victim is not a valid defence against the crimes of rape or sexual violation. Even when marital rape is recognised as a crime, there is a risk that judges might regard it as less serious than other forms of rape, leading to more lenient sentences, as happened in South Africa. The South African Criminal Law (Sentencing) Act of 2007 now provides that the relationship between the victim and the accused may not be regarded as a substantial and compelling circumstance justifying a deviation from legislatively required 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 at large. In South Africa, despite legal developments, rates of marital rape remain high; a 2010 study suggests that 18.8 % of women are raped by their partners on one or more occasions, with low reporting and conviction rates aggravated by the belief that marital rape is acceptable or less serious. Changes in the law therefore need to be accompanied by widespread measures raising awareness of women's rights to autonomy and physical integrity, regardless of marriage or other intimate relationships. This was underlined in Vertido v. The Philippines, a recent communication under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women, where the CEDAW Committee 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., Accordingly, the following recommendations are made: (i) the exception for marital rape be removed; (ii) the law ought to specify that a marital or other relationship between the perpetrator and the victim is not a valid defence against the crimes of rape or sexual violation; (iii) the relationship between the accused and the complainant is not relevant to the inquiry into whether the complainant consented to the sexual activity; (iv) 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., Prof. Sandra Fredman of the University of Oxford has submitted to the Committee that training and awareness programmes should be provided to ensure that all levels of the criminal justice system and ordinary people 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 backdrop of the brutal gang‑rape of a young lady in Delhi on 16 December 2012. A spate of recommendations were made, some of which were accepted and formed part of the Criminal Law (Amendment) Act, 2013. Among the several amendments brought about by the Act were the expansion of the definition of rape, the enhancement of the minimum mandatory sentence under Section 376(1) of the Indian Penal Code and the insertion of Section 376B, which substituted Section 376A. However, for whatever reason, the legislature stopped short of accepting the Committee’s recommendations concerning the removal of the Marital Rape Exception., Given the foregoing discussion, I am clearly of the view that the recommendations were in line with constitutional mores and morality, which in the recent past have been captured and reiterated by the Supreme Court of India in the judgments rendered 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 the context of sexual activity between married couples, it must be emphasised that the State, as a representative of society, shares the responsibility to deprecate and punish sexual abuse or violence of every form. This responsibility extends beyond the interpersonal space ordinarily available to a married couple where there is no violence. When the State exempts criminal acts such as forced sex within marriage, it unwittingly engages in unequal disbursement 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 judgments and materials cited on behalf of the intervenors. None of the material or judgments cited have persuaded me to hold that the impunity available to husbands because of the Marital Rape Exception should not be disturbed. In other words, the status quo should not continue until the Executive or the Legislature decides to intercede., 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 Exception continued to remain on the statute. Several members expressed serious concerns about retaining the exception, 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 was cited in support of the proposition that the court must not easily invalidate a statute as it has the backing of the Legislature, which comprises elected representatives. The case concerned a challenge to Section 47A of the Indian Stamp Act, 1899 (as amended by A.P. Act 8 of 1998). The impugned 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 assailed on the ground that it was unconstitutional. The court observed that while judges should practise great restraint while dealing with economic statutes, they should be activist in defending civil liberties and fundamental rights because, although the legislature represents the will of the people, there can be exceptional situations where it may violate civil liberties. The Constitution’s fundamental rights, modelled on the US Bill of Rights and the French Declaration of the Rights of Man, empower courts to declare executive or legislative action unconstitutional., Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408 was another judgment cited in support of judicial restraint. The case concerned casual workers employed on a daily‑wages basis. An industrial dispute led to a Labour Court award directing regularisation of the workmen and payment of wages at par with regular employees. The High Court upheld the award in part but held that regularisation was not a mode of appointment. The Supreme Court of India, observing that the petitioner company had turned \sick\, disagreed with the High Court directions, holding that regularisation was not a mode of appointment.
id_60	11	In the facts of the case, the Supreme Court of India 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 Supreme Court of India 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 Supreme Court of India's observation that the creation of posts, appointments and regularization 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 SCC 287 has no applicability whatsoever to the present case. This was a case where a challenge was laid to an order passed by the High Court while hearing a civil revision petition. The petitioner before the Supreme Court of India 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 of India, the concerned member's tenure as Mayor had expired, and therefore, the appeal had been rendered infructuous. Thus, the Supreme Court of India, while dismissing the appeal, made the observations to the effect that no mandamus could issue for amendment of the M.P. 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 Nagar Tenancy Act, 1908 (CNT Act). The provisions disabled tribal women from succeeding to the estate of their 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 (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 in the matter. The majority on the bench, while reading down Sections 7 and 8 of the CNT Act, did not go that far as to strike down the said provisions. The majority protected the rights of female descendants under Sections 7 and 8 of the CNT Act by suspending the exclusive right of male succession until the female descendants chose other means of livelihood, manifested by abandonment and/or release of the holding. On the other hand, the minority view, in effect, veered around to the reasoning that the general principles which found a place in the HSA could be applied to Scheduled Tribes., It is in this context that the observations of the majority contained in paragraph 5 have to be viewed. It is also to be borne in mind that on a direction issued by the Supreme Court of India during the pendency of the proceedings, an exercise was carried out by the Bihar Tribal Consultative Council which revealed that if the changes, as suggested, are effected in the Hindu Succession Act, the land over which tribals had ownership right could get alienated. In the face of these divisions and visible barricades put up by the sensitive tribal people valuing their own customs, traditions and usages, judicially enforcing on them the principles of personal laws applicable to others, on an elitist approach or on equality principle, by judicial activism, is a difficult and mind‑boggling effort. Justice K. Ramaswamy, J. seems to have taken the view that Indian legislatures and governments would not prompt themselves to activate in this direction because of political reasons and that an activist court, apolitical as it avowedly is, could get into action and legislate broadly on the lines suggested by the petitioners in their written submissions. However laudable, desirable and attractive the result may seem, it has been viewed by the learned brother that 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 on the problem and shake it from its slumber, goading it to awaken, march and reach the goal. For, in whatever measure be the concern of the Supreme Court of India, it compulsively needs to apply, somewhere and at some time, brakes to its self‑motion, described in judicial parlance as self‑restraint. We agree therefore with Justice K. Ramaswamy, J. as summed up by him in the paragraph ending on page 36 (paragraph 46) of his judgment that under the circumstances it is not desirable to declare the customs of tribal inhabitants as offending Articles 14, 15 and 21 of the Constitution and each case must be examined when full facts are placed before the court., Clearly, both the plurality and the minority views moved in the direction of granting relief to the tribal women. The methodology adopted and the degree of relief granted varied. The majority as well as minority members on 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 that there was 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 what is sought to be portrayed on behalf of the intervenors; where courts find that a statute or a provision in the statute is violative of the fundamental rights, the same cannot be struck down., As to how and when such judicial tools are employed is demonstrated in the judgment by the Constitution Bench in the C.B. Gautam case. This was a case which concerned, inter alia, a challenge to Section 269UD of the Income Tax Act, 1961 (the Act) which stood incorporated in Chapter XX‑C of that very Act. The provisions contained in Chapter XX‑C, in particular Section 269UD, empowered the Central Government to preemptively acquire an immovable property which was a subject matter of an agreement to sell if it was undervalued by more than 15 percent. Furthermore, the provision also vested in the Central Government a right in such property, albeit free from all encumbrances., Thus, two questions principally arose for consideration before the Constitution Bench. First, whether the aforementioned provision should have embedded in it leeway for an intending purchaser and/or seller to demonstrate why an order for compulsory purchase ought not to be passed by the appropriate authority in a given case. Second, whether the all‑encompassing expression 'free from all encumbrances' should be struck down as it had no rational nexus with the object sought to be achieved by the legislation, which was to prevent tax evasion., The Supreme Court of India employed both tools, inasmuch as it read into the provision the principles of natural justice, i.e., the requirement to issue a show‑cause notice to the intending purchaser and/or seller as to why the property ought not to be compulsorily purchased by the Government. Furthermore, it struck down the expression 'free from all encumbrances' and, while doing so, the Supreme Court of India made the following pertinent observations: 'We agree that in order to save a statute or a part thereof from being struck down it can be suitably read down. But such reading down is not permissible where it is negatived by the express language of the statute. Reading down is not permissible in such a manner as would fly in the face of the express terms of the statutory provisions.', The Supreme Court of India, thus, excised from the statute the aforementioned expression 'free from all encumbrances' as, according to it, it failed to meet the test of Article 14 and sustained the remaining parts of the provision., The judgment rendered in Census Commissioner & Ors. v. R. Krishamurthy, (2015) 2 SCC 796, in my view, is also not applicable to the issue at hand. In this case, the Supreme Court of India was called upon to consider whether the direction issued by the High Court to the Census Commissioner that the census should be carried out in a manner that caste‑wise enumeration and/or tabulation get 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 Supreme Court of India held that the direction was flawed as the controversy that arose for adjudication before the High Court was entirely different. Before the High Court, a challenge was laid to the appointment of a person to a public office who was appointed solely on the basis that he belonged to a Scheduled Tribe. The High Court had noted that there were no persons belonging to a Scheduled Tribe residing in the place concerned (the Union Territory of Pondicherry) and that a presidential notification under Article 342 of the Constitution had not been issued. Based on this, the High Court concluded that no reservations for Scheduled Tribes could be made in the Union Territory of Pondicherry. The High Court also issued directions to the Census Commissioner even though he was not a party to the proceedings., A close look at the judgment also shows that a second writ petition was filed which was allowed in terms of the order passed in the first writ petition., That said, the following observations made by the Supreme Court of India shed light on how one needs to proceed in matters where a policy decision or a provision in the statute, as in the instant matters, is assailed. Interference with the policy decision and the issue of a mandamus to frame a policy in a particular manner are absolutely different. The Act has conferred power on the Central Government to issue notification regarding the manner in which the census has to be carried out, and the Central Government has issued notifications, and the competent authority has issued directions. It is not within the domain of the Supreme Court of India to legislate. The courts do interpret the law and in such interpretation certain creative process is involved. The courts have the jurisdiction to declare the law as unconstitutional, that too where it is called for. The court may also fill up the gaps in certain spheres applying the doctrine of constitutional silence or abeyance. But the courts are not to plunge into policy‑making by adding something to the policy by way of issuing a writ of mandamus. Judicial restraint is called for, remembering what has been stated in the beginning. The courts are required to understand the policy decisions framed by the executive. If a policy decision or a notification is arbitrary, it may invite the frown of Article 14 of the Constitution., In my opinion, if at all, the observations help the cause of the petitioners., The Social Action Forum for Manav Adhikar & Anr. v. Union of India, Ministry of Law & Justice & Ors. (2018) 10 SCC 443 was a case where the Supreme Court of India was, inter alia, considering the viability of some of the directions issued by one of its benches in the matter of Rajesh Sharma & Ors. v. State of Uttar Pradesh & Anr. (2018) 10 SCC 47260 in the context of Section 498A of the Indian Penal Code., The Supreme Court of India, however, concluded that some of the directions contained in Rajesh Sharma did not protect the interests of married women, which was the avowed object of Section 498A of the Indian Penal Code. Therefore, the Supreme Court of India, inter alia, did away with the direction issued for the constitution of a Family Welfare Committee under the aegis of the District State Legal Authority and the consequent powers that had been conferred upon it., Pertinently, while doing so, the Supreme Court of India also recognized that a court could, in certain cases, in furtherance of fundamental rights, issue directions in the absence of law. In this context, reference was made to Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244; Vishaka; and Common Cause (A Registered Society) v. Union of India & Anr. (2018) 5 SCC 1., State of Bihar & Ors. v. Bihar Distillery Ltd., (1997) 2 SCC 453, was cited by the intervenors to rely upon the dictum that the Supreme Court of India should presume the constitutionality of a statute enacted prior to the Constitution coming into force as it represented the will of the people. As alluded to above, even after having applied the presumption of constitutionality doctrine to MRE, I still could not bring myself to 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 of India was called upon to consider the following two issues: First, whether the two Houses of Parliament, in the exercise of powers, privileges and immunities as contained in Article 105 of the Constitution, could expel their respective members from the membership of the House. Second, if such power existed, could it be made subject to judicial review and, if so, what was the scope of the judicial review., Mr Kapoor had cited this judgment to contend that the motive of the Legislature in enacting a particular statute was beyond the scrutiny of the courts. One cannot quibble with this proposition, but what is important are the far‑reaching, seminal observations made by the Constitution Bench in the Raja Ram Pal case. The bench enunciated the principle that where governance is rooted in the Constitution, absolutism is abhorred and that while due deference has to be given to a coordinate organ such as Parliament, its acts are amenable to judicial scrutiny., We may summarise the principles that can be culled out from the above discussion. They are: (a) Parliament is a coordinate organ and its views deserve deference even while its acts are amenable to judicial scrutiny; (b) The constitutional system of government abhors absolutism and, being the cardinal principle of our Constitution, no one, however lofty, can claim to be the sole judge of the power given under the Constitution; mere coordinate constitutional status, or even the status of an exalted constitutional functionary, does not disentitle the Supreme Court of India from exercising its jurisdiction of judicial review of actions which partake the character of judicial or quasi‑judicial decisions; (f) The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review the exercise of its power; (h) The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens; (s) Proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny; (u) An ouster clause attaching finality to a determination ordinarily ousts the power of the court to review the decision, but not on grounds of lack of jurisdiction or it being a nullity for reasons such as gross illegality, irrationality, violation of constitutional mandate, malafides, non‑compliance with rules of natural justice and perversity., The judgment in Sunil Batra v. Delhi Administration & Ors. (1978) 4 SCC 494 was relied upon by the intervenors to emphasize the observations which, in effect, conveyed that if certain provisions of law construed in one way would be consistent with the Constitution and another interpretation would render them unconstitutional, the Supreme Court of India would lean in favour of the former construction., To my mind, once again, I cannot but wholly agree with this enunciation of law as captured above. However, having concluded that MRE, read in whichever way, is not only unconstitutional and morally repugnant, the aforementioned observation, read out of context, will not help shore up the case of the intervenors. The judgment in Sunil Batra's case was rendered based on a letter written by the petitioner to the Supreme Court concerning the brutal assault by a Head Warder on another prisoner. It is in this backdrop that the Supreme Court of India issued a slew of directions to the Delhi Administration in the interest of incarcerated persons., 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 in the matter; I tend to agree with this submission., The aforesaid order does not, in my view, by any stretch of the imagination, suggest that the Supreme Court of India cannot examine the legal tenability of the impugned provisions or that a litigant oppressed by a provision in the statute should wait till such time the executive or the Legislature decides to act in the matter., In Mohd. Hanif Quareshi & Ors. v. State of Bihar & Ors., AIR 1958 SC 731, a challenge was laid to a ban imposed in the States of Bihar, Uttar Pradesh and Madhya Pradesh concerning the slaughter of cows. A bunch of petitions under Article 32 of the Constitution were filed to strike down the ban. The Supreme Court of India, in its judgment, reiterated the meaning, scope and effect of Article 14 of the Constitution. The Supreme Court of India also ruled, as stressed by the intervenors, that the presumption of constitutionality doctrine should apply to a statute enacted by the Legislature and that, if the same is assailed, the burden lies upon the party who brings the challenge to the Court. (See paragraph 15 of Mohd. Hanif Quareshi.), Pertinently, after having expounded on the scope and effect of Article 14, the Supreme Court of India upheld the Bihar Act insofar as it prohibited the slaughter of cows of all ages, which included the calves, but went on to declare as void the slaughter of she‑buffaloes, breeding buffaloes and working buffaloes, as the impugned provision did not prescribe a test or requirement as to their age or usefulness. This part of the Act was struck down as, according to the Supreme Court of India, it violated the petitioner's fundamental rights under Article 19(1)(g) of the Constitution. (See paragraph 45 of Mohd. Hanif Quareshi.), What emerges clearly from the judgment is that unless the differentia, based on which classification is made, meets the nexus test, such classification would not pass muster of the fundamental rights provided in the Constitution., In the instant matters, the position is quite similar and, therefore, in my view, 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 SC 1489, the challenge laid, inter alia, concerned the interpretation that had to be accorded to the amended Development Control Regulation No. 58, framed by the State of Maharashtra. A public interest petition was filed before the Bombay High Court by persons who claimed to be residents of Mumbai and who were desirous of protecting open spaces in the city for preserving ecological balance and for providing public houses to the needy. The Bombay High Court, while allowing the writ petition, held that the amended DCR 58, which concerned open lands, would also apply to land which turned into open space after the demolition of structures built upon such land. It is in this backdrop that the matter reached the Supreme Court of India. The Supreme Court of India made some telling observations, which, in my view, only re‑emphasize the principle that constitutional courts are vested with the power to carry out judicial review of not only legislation and subordinate legislation but also policy decisions, albeit with usual caveats., It needs to be stated that the Supreme Court of India accepted the dicta enunciated in its earlier judgment rendered in Anil Kumar Jha v. Union of India & Ors. (2005) 3 SCC 150 that it could interfere even with a 'political decision', although it may amount to entering the political thicket. Besides this, the observations made in paragraph 120 that where issues brought before the Supreme Court of India concerned enforcement of human rights, the Court's interpretation and application of constitutional principles is not limited to the 'black letter of the law'., The Supreme Court of India also observed that expansive meaning to such rights has been given by taking recourse to 'creative interpretations' which, in the past, has led to the creation of new rights. The principles adverted to by the Supreme Court of India in this case only strengthen the cause of the petitioners., Shri Ram Krishna Dalmia & Ors. v. Shri Justice S.R. Tendolkar & Ors., AIR 1958 SC 538, was adverted to by the Supreme Court of India in the Mohd. Hanif Quareshi judgment. Apart from reiterating the principle that the constitutionality of a statute is to be presumed and that the burden lies upon the party who assails it because the legislature understands the needs of its own people, several other principles were alluded to by the Supreme Court of India after examining the whole host of cases. Amongst others, two important principles the Supreme Court of India adverted to are set forth hereafter: (f) while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation; (ii) a statute may direct its provisions against one individual person or thing or to several individual persons or things, but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances or matters of common knowledge. In such a case the Supreme Court of India will strike down the law as an instance of naked discrimination, as it did in Ameerunnissa Begum v. Mahboob Begum [(1953) SCR 404] and Ramprasad Narain Sahi v. State of Bihar [(1953) SCR 1129]., The facts obtaining in Beeru v. State NCT of Delhi 2014 [1] JCC 509 were briefly the following: The allegation against the appellant accused was that he had raped a minor girl aged 14 years. The appellant accused was the uncle of the victim. The trial court had convicted the appellant and imposed life imprisonment, which was reduced to ten years by the High Court while sustaining the conviction. The observations made in paragraph 36 of the judgment, wherein reference is made to the difference in punishment imposed under sub‑section (1) as against sub‑section (2) of Section 376, only state a fact which is discernible upon a bare reading of the said provisions., What would have to be borne in mind is whether rape in a particular set of circumstances can be classified as aggravated rape. Thus, punishment as provided under sub‑section (2) of Section 376 may be attracted in a given case. I have already indicated that, in any case, the offending husband will not fall within the ambit of Section 376(2)(f) of the Indian Penal Code., Saregama India Ltd. v. Next Radio Ltd. & Ors. (2022) 1 SCC 701 concerned a challenge to an interim order issued by a Division Bench of the Madras High Court in a bunch of appeals. Before the Madras High Court, appeals had been filed under Article 226 of the Constitution to assail the validity of Rule 29(4) of the Copyright Rules, 2013 (2013 Rules). The appellants before the Supreme Court of India were aggrieved by the interim directions issued by the Division Bench even while the main challenge was still pending. It was also contended that the High Court, via an interim order, had re‑written the provisions of Rule 29(4) of the 2013 Rules. The Supreme Court of India agreed with the appellants and, inter alia, observed that a court could not rewrite a statute or transgress the domain of policy making., This apart, the Supreme Court of India reiterated its power of judicial review and, inter alia, observed as follows: 'The Supreme Court of India is entrusted by the Constitution with the power of judicial review. In the discharge of its mandate, the Supreme Court of India 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.', The instant matters do not involve rewriting of the provision as is sought to be conveyed on behalf of the intervenors., In the Shayara Bano case, there were two questions which arose for consideration before the Supreme Court of India. First, whether the Shariat Act recognized and enforced triple talaq as a rule of law to be followed by the Courts in India. Second, whether personal laws are outside the ambit of Article 13(1) of the Constitution. In this context, the correctness of the judgment rendered by the Bombay High Court in State of Bombay v. Narasu Appa Mali, 1951 SCC OnLine Bom 72 was required to be examined., Interestingly, the petitioners before the Supreme Court of India who laid challenge to triple talaq (talaq‑e‑bidaat), as applicable to Sunnis, were supported by the Union of India. One of the arguments noted by the Supreme Court of India, advocated by the Muslim Personal Law Board and those who supported the argument while resisting the petitions, was that because personal laws were beyond the pale of fundamental rights, they could not be struck down, and therefore, the Court should 'fold its hands' and 'send Muslim women and other women's organisations back to the legislature', as according to them, if triple talaq is to be removed as a measure of social welfare and reform under Article 25(2), the legislature alone should do so. Both the petitioner and the Union of India opposed this plea., Ultimately, the Supreme Court of India held that triple talaq was manifestly arbitrary, in the sense that marital ties could be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation., The Supreme Court of India went on to hold that triple talaq (talaq‑e‑bidaat) was violative of Article 14 of the Constitution. Accordingly, the Supreme Court of India declared Section 2 of the Shariat Act void to the extent it recognized and enforced triple talaq., The argument advanced by Mr Sai Deepak that the Supreme Court of India only declared triple talaq as unconstitutional and did not criminalise it, and therefore principles laid down in Shayara Bano's case will not apply to the instant matters, is completely untenable. The judgment etched out in great detail the contours of Article 14, and in that context the Supreme Court of India observed that the thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and, being contrary to the rule of law, would violate Article 14.
id_60	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 SCC 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 the Parliament to frame the impugned laws. The Supreme Court of India also used the reading down tool and went on to hold 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 Supreme Court of India 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 which an observation was made that vague laws offend several important values and that unlawful zones in law should be clearly marked out, 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 SCC 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 case set up by the petitioners was that 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 Supreme Court of India ultimately directed the government to reexamine the issue and consider the extent to which exemption ought to be granted in respect of newsprint imported in the period subsequent to 1 March 1981, after taking into account relevant matters. In this context certain other directions were also issued. To my mind this judgment does not advance the case of the intervenors. Observations picked up from the judgment without reference to context can lead to conclusions which are untenable in law., The judgment rendered in State of Tamil Nadu & Ors. v. Ananthi Ammal & Ors., (1995) 1 SCC 519, in my opinion only reiterates the well-established principles enunciated by the Supreme Court of India in various judgments concerning Article 14 of the Constitution. The observations on which intervenors seek to rely are contained in paragraph 7 of the judgment. The Supreme Court of India therein has merely 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. One can have no quarrel with the proposition that is sought to be propounded on behalf of the intervenors based on observations made in paragraph 7 of the judgment., Both sides have referred to statutes to explain their point of view. Complementary statutes can only aid the Supreme Court of India in forensically examining a provision and testing its tenability., The issue that arose for consideration in Arvind Mohan Sinha v. Amulya Kumar Biswas and Ors., (1974) 4 SCC 222, was whether the Probation of Offenders Act, 1958 (in short \1958 Act\) would apply to the respondents who were charged and convicted for possession of gold which was liable to be confiscated under Section 111 of the Customs Act, 1962. Thus, the Supreme Court of India was called upon to rule whether the 1958 Act could apply to the offences referred to in the Customs Act and Part XII-A of the Defence of India Rules, 1962. The Supreme Court of India held that there was no impediment in the 1958 Act being applied to the respondents. In this context an observation was made in paragraph 12 with regard to the different punishments being meted out for similar offences. The observations also drew attention to aspects such as antecedents as well as the physical and mental condition of the offenders, which, according to the Supreme Court of India, had to be borne in mind while applying the provisions of the 1958 Act., The point to be noted is that, in the instant matters, there is a complete prohibition on triggering the criminal law concerning one set of offenders on account of the presence of the marital rape exemption in the main provision. The question concerning sentencing would arise once that prohibition is lifted., To my mind, the case of Vidya Viswanathan v. Kartik Balakrishnan, (2015) 15 SCC 21, has no applicability to the issue which arises for consideration in the present case. This was a case where the Supreme Court of India was called upon to rule on whether mental cruelty could form the basis for seeking a decree for divorce. The Supreme Court of India sustained the High Court judgment in the given set of facts and thus established that mental cruelty could form the basis for seeking a decree for divorce., In this case, divorce was sought by the husband., Mr Kapoor sought to rely upon the observations made in paragraph 12 of the judgment. The observations allude to the proposition that denial of sexual intercourse could amount to mental cruelty. The issue at hand is entirely different. We are dealing with a question as to whether a husband can seek sexual communion with his wife without her consent and/or her willingness. The judgment, in my opinion, has no application to the instant matters., In the case of Sant Lal Bharti v. State of Punjab, (1988) 1 SCC 366, the Supreme Court of India was called upon to rule whether the judgment of the High Court ought to be sustained since it had dismissed in limine the appellant's writ petition. The Supreme Court of India noted that the petition lacked material particulars and, therefore, it was not inclined to interfere with the judgment of the High Court. It appears that what was assailed before the High Court, albeit without setting out material particulars, was the vires of Section 4 of the East Punjab Urban Rent Restriction Act, 1949., It is in this context that the Supreme Court of India made the observations that Article 14 does not authorize striking down a statute of one State by comparing a statute of another State on the same subject, and thus establishing that the impugned statute was discriminatory. A close look at the observations would show that the appellant had sought to refer to the Rent Acts of other States, i.e., Assam, Tripura and Haryana. Mr Kapoor has extrapolated this observation to contend that in examining the viability of the impugned provisions, the Supreme Court of India cannot look at the judgments and legislations of other jurisdictions on rape laws., It is well accepted that courts, while examining matters, take the aid of judgments rendered by other courts only to help them reach a correct conclusion with regard to the impugned statute and/or provision. It is important to remind ourselves that our Constitution is based on ideas and provisions found in the constitutions of other countries such as the United States, Canada and Australia, and therefore to even suggest that one cannot look at views prevailing in other jurisdictions would be akin to an ostrich burying its face in sand., The issue which arose for consideration in H.P. Gupta & Anr. v. Union of India & Ors., (2002) 10 SCC 658 concerned the grant of two advance increments to Junior Telecom Officers in the Telecommunication Department who acquired a degree in engineering while in service. Since the appellants before the Supreme Court of India already possessed a degree in engineering, they assailed the action of the respondents as being discriminatory. The Supreme Court of India did not entertain the challenge and, while dismissing the appeal, observed that there cannot be perfect equality in any matter on an absolute scientific basis. It went on to hold that there could be certain inequities. In my view, the observations made in the context of incentives granted to one set of employees for attaining a higher qualification while in service cannot be compared with the impairment of rights of married women who are exposed to a criminal offence. This submission, in my opinion, has resulted from a complete misreading of the ratio of the judgment., In Sushil Kumar Sharma v. Union of India & Ors., (2005) 6 SCC 281, the Supreme Court of India was dealing with an Article 32 petition which sought a declaration to the effect that Section 498A of the Indian Penal Code ought to be declared unconstitutional. The Supreme Court of India repelled the challenge. The Supreme Court of India observed that, if a provision of law is misused, it is for the legislature to amend, modify or repeal the same. This observation and the ratio of the judgment sustain the view that if the marital rape exemption is struck down, its consequent misuse, if any, as apprehended by the intervenors can, first of all, be dealt with by the courts and, if deemed necessary, the legislature could step in to carry out corrective measures., Mr Kapoor has cited Vishaka to establish that a legal vacuum, if any, can only be filled by the Supreme Court of India by exercising powers under Article 142 of the Constitution. Once again, this is a proposition which one cannot but agree with. The point which arises in the instant matters is not about filling the legal vacuum but about doing away with the impugned provisions which violate the fundamental rights of married women., Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan & Ors., (2009) 16 SCC 517, was cited by Mr Kapoor to support his submission that the Supreme Court of India could make recommendations to the executive and/or the legislature. In this context, observations made in paragraph 34 of the judgment are relied upon. This aspect, in my view, is matter specific., Interestingly, on the one hand it is contended on behalf of the intervenors that the Supreme Court of India should keep its hands off in respect of matters concerning the marital rape exemption, and on the other hand it calls upon the Supreme Court of India to make recommendations. There is, if I may say so, some amount of incongruity in the submission., The observations made by the Supreme Court of India in Sivasankaran v. Santhimeenal, 2021 SCC OnLine SC 702, concerning what constitutes a marriage, once again, are facets with which one cannot quarrel. That said, Mr Kapoor loses sight of the fact that the issue before us is whether the edifice of marriage would survive once a woman is subjected to marital rape., The judgment in Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270, is cited by Mr Kapoor to advance his argument that there are provisions available in other statutes such as the Hindu Marriage Act which can come to the aid of the wife. There is no gainsaying, as noted above, that there are statutes which provide for civil remedies for a married woman. However, as adverted to above, there is no remedy in law available to a married woman when she is subjected to rape by her husband., Thus, if I were to capture how two men view the subsisting inequity which gets displayed daily in their relationship with men generally, I could do no better than 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... But here we come, I think, to the old and lingering inequity between the sexes. 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 because we notice him more (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, and in this regard I can once again do no better than quote the words used by the late Ms Ruth Bader Ginsburg, former United States Supreme Court Justice, when appearing as an amicus in Sharron A. Frontiero and Joseph Frontiero v. Elliot L. Richardson, Secretary of Defense, et al., 1973 SCC OnLine US SC 101, which is attributed to Ms Sarah Moore Grimke, an abolitionist and rights activist: \I ask no favour for my sex. All I ask of our brethren is that they take their feet off our necks.\, This in a sense typifies the agony of women living in the 21st century. A journey of three hundred years and more (since the time the Hale Doctrine was first enunciated) has been excruciating in terms of individual freedom. From the time when married women were considered as the property of the husband, to the time when they shed that shackle but were still not considered as individuals having a personality separate from their husbands, to the present times when they appear to be emasculated of their right to say yes or no to sexual communion with their husbands, has been a journey marked by intellectual battles fought by valiant women before various forums. The sheer expanse of time should impel us to unshackle them and give them agency over their bodies., Before I conclude, I must state that I agree with the submissions made by Ms John and Ms Nundy that the legislature needs to address matters concerning sentencing for the offence of rape. Their view that a high minimum mandatory sentence does not necessarily result in greater conviction rates needs to be examined by the concerned authorities, bearing in mind the relevant data on the subject., That said, on sentencing, the following view of the Court of Appeal of New Zealand needs to be captured: \4.45 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, like in other foreign jurisdictions, the Executive may have to provide sentencing guidelines for trial court judges to ensure greater consistency. Likewise, I also tend to agree with the counsel for the intervenors, Messrs Sai Deepak and Kapoor, that the law should be gender-neutral. These are steps that are required to 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 exemption which otherwise does not pass muster, as discussed above, of our constitutional provisions i.e., Articles 14, 15, 19(1)(a) and 21. These are the next steps in the matter which the legislature has to take up. The Supreme Court of India's jurisdiction to examine the matter is not tied in with these steps that the legislature may embark upon concerning sentencing and how investigation is to progress in matters involving marital rape. As and when such steps are taken, I am sure they will attract the public gaze and attention of all stakeholders and if escalated to the court may also require judicial examination. However, these are not matters presently within the ken of the Supreme Court of India., But before all this is done, a married woman's right to bring the offending husband to justice needs to be recognized. This door needs to 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 one hundred sixty‑two years since the enactment of the Indian Penal Code. To my mind, self‑assured and good men have nothing to fear if this change is sustained. If I were to hazard a guess, those amongst us who want the status quo to continue would perhaps want the marital rape exemption struck down if the victim involved was his or her mother, sister or daughter., As noticed right at the outset, the issue at hand raises concerns of enormous public importance, which has both legal and social connotations. This is demonstrable from the fact that it has already received the attention of different High Courts (see the decision of the learned Single Judge of the Gujarat High Court in Nimeshbhai Bharatbhai and the Karnataka High Court in Hrishikesh Sahoo v. State of Karnataka, 2022 SCC OnLine Kar 371). Therefore, in my view, since the issue involves a question of general importance concerning the fundamental rights of a large number of married women, it necessitates a decision by the Supreme Court of India (see Chunilal V. Mehta and Sons Ltd. v. Century Spg. and Mfg. Co. Ltd., 1962 Supp (3) SCR 549 and State Bank of India v. S.B.I. Employees' Union, (1987) 4 SCC 370)., As would be evident from above, I have not adverted to the submissions of the respondents, i.e., the Union of India and the Government of National Capital Territory of Delhi. Insofar as the Union of India is concerned, Mr Tushar Mehta, learned Solicitor General, stated before us in no uncertain terms that the Union of India does not wish to take a stand in the matter. In fact, affidavits were filed to the effect that the Union of India would like to engage in consultation before moving further in the matter. On the other hand, while submissions were made at length by Ms Nandita Rao, who represented the Government of National Capital Territory of Delhi, on the last day, on instructions, she stated that she wished to withdraw the submissions which were made by her in the course of the hearing on behalf of the Government of National Capital Territory of Delhi. Therefore, practically, the state made no case for or against the continuance of the impugned provisions on the statute., That being said, the debate that ensued among the remaining counsel was rich, passionate and engaging; it would have been richer had Mr Mehta, i.e., the learned Solicitor General, assisted the Supreme Court of India in the matter., I must place on record my deep appreciation for Mr Gonsalves, Mr Sai Deepak, Mr Kapoor, Ms Nundy and the two amicus curiae who appeared in the matter, i.e., Ms John and Mr Rao. The wealth of material that they placed before us in the form of reports and judgments helped me in finding what I believe is the right conclusion in the matter. Regrettably, I was not able to persuade Hon'ble Mr Justice C. Hari Shankar to my point of view. He, perhaps, hears a beat of a different drummer. I respect that., To the petitioners and their ilk I would say it may seem that you plough a lonely furrow today but it will change, if not now, some day. To the naysayers I would say that every dissent adds flavour and acuteness to the debate at hand, which assists the next court, if nothing else, in arriving at a conclusion which is closer to justice and truth., For the foregoing reasons, I declare and hold: (i) That the impugned provisions, i.e., Exception 2 to Section 375 (marital rape exemption) and Section 376B of the Indian Penal Code as well as Section 198B of the Code of Criminal Procedure, insofar as they concern a husband or separated husband having sexual communion or 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, hence, are struck down. (ii) The aforesaid declaration would, however, operate from the date of the decision. (iii) The offending husbands do not fall within the ambit of the expression contained in Section 376(2)(f) of the Indian Penal Code and, consequently, the presumption created under Section 114A of the Indian Evidence Act will not apply to them. (iv) Certificate of leave to appeal to the Supreme Court of India is granted under Article 134A(a) read with Article 133(1)(a) and (b) of the Constitution as the issue involved in this case raises a substantial question of law which, in my opinion, requires a decision by the Supreme Court of India. (v) The writ petitions, i.e., 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., Having had the opportunity of poring through the illuminating opinion of my noble and learned brother Rajiv Shakdher, J., I must state, at the outset, that I cede place to none in my estimation of the intellectual integrity of my brother; it remains a matter of lasting regret, therefore, that our differences regarding the outcome of these proceedings appear irreconcilable. That, however, remains one of the travails of being a judge. One cannot compromise on one's convictions even if it is to sail with the tide, however compelling the tide may be., I am constrained, therefore, to place my dissenting views on record. In my considered opinion, the challenge to the vires of the second Exception to Section 375 and Section 376B of the Indian Penal Code, 1860 (the IPC), and Section 198B of the Code of Criminal Procedure, 1973 (the Cr PC), as raised in these petitions, must fail., Arguments were principally advanced on the challenge to Exception 2 to Section 375, and incidentally on the other provisions under attack. I would therefore concentrate mainly on the former challenge and would address the latter towards the later part of this judgment., Section 375 of the Indian Penal Code, the second Exception to which is the subject matter of challenge, reads thus: 375. 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, the 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 the circumstances falling under any of the following descriptions: First, against her will; secondly, without her consent; thirdly, 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 of hurt; fourthly, 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; fifthly...
id_60	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 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 has not 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 determining 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 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 Commissioners thereafter deliberated on the draft Penal Code and presented the First Report on Penal Laws, 1844. Ms Rebecca John, learned amicus curiae, has provided extracts from the said Report which, however, 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 was made by learned counsel for the petitioners to the Hale dictum. There can be no doubt that this dictum is anachronistic and cannot sustain constitutional or legal scrutiny given the evolution of thought since its rendering. 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. This 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 (for example, a live‑in partner), making it irrational and manifestly arbitrary. It would also be arbitrary to retain the Exception to protect the institution of marriage, as the sanctity of an institution cannot be placed above the rights of individuals. The purported rationale of the Exception has outlived its purpose and does not align with constitutional morality, rendering it 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 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 and having no place in the constitutional order. 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 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. She states that the pre‑Constitutional object, as per Lord Macaulay's notes in 1838, was the creation of an exception in favour of the conjugal rights of the husband. Paragraph 36 of the John Vallamattom v. Union of India report recognised that a provision, though not unconstitutional at enactment, may become unconstitutional with the passage of time. The Supreme Court has held that it would be immoral to discriminate against a woman on the ground of sex. Post‑Constitutional amendments to Section 375 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. Accordingly, 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. 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_60	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, 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_60	15	This problem, she submits, would apply to all cases of rape and, if the argument of the disproportionate nature of the sentence envisaged by Section 376 is taken as a defence by votaries of the impugned Exception, 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. Several of the submissions of Mister Gonsalves mark a departure from the submissions advanced by Miss Nundy. Mister Gonsalves placed extensive reliance on the position obtained 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 United Kingdom 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 want 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 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 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. It is only in the Trial Courts, where 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 responded to the argument that for a married couple there exists a presumption in favour of regular sex, 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, according to Mister Gonsalves, is 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 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. 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 are to be elaborated by making law. No part of this exercise is to be done in these proceedings. Determinations of whether the husband’s conduct amounts to coercion and the wife’s conduct amounts to consent have been discussed at length during these proceedings, but they belong to the jurisdiction of the Writ Court and should be addressed later, after the Exception is declared unconstitutional, in a different forum., With respect to the applicability of other provisions of the Indian Penal Code to sex by the husband with his wife against her consent, 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 the accused will be known and recognised as a rapist., Mister Gonsalves states that the possibility of misuse cannot restrain the Court from declaring the impugned Exception unconstitutional, citing paragraph 19 of the report in Sushil Kumar Sharma v. Union of India. He further submits that the disclaimer in the decision Independent Thought, which clarifies that the Court had not made any observation with regard to marital rape of a woman who was 18 years of age or above, cannot be regarded as binding on any authority that seeks to rely on that decision. He argues that once a judgment is delivered, its operative part stands as a whole and cannot be limited by subsequent caveats, and that such observations are not binding on any court, including courts subordinate to the Supreme Court of India., Mister Gonsalves submits that there is no such thing as an expectation of sex or a right to have sex absent consent of the other party. The resurrection of such an expectation would amount to resurrecting 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 a new offence. He submits that the offence of rape already exists 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. The Court is therefore required only to eliminate that block by declaring the exemption unconstitutional under Article 14 and Article 21 of the Constitution of India. He further argues that the impugned Exception dies with the coming into force of the Constitution, and that the Court’s role is to make a declaration doing away with the formal existence of the Exception, thereby restoring the right to punish without creating a new offence., Submissions of Mister Rajshekhar Rao, learned amicus curiae. Mister Rao begins by highlighting the fundamentally inhuman nature of the act of rape and the indelible mark it leaves on both the physical form and the psyche of the victim. He submits that rape violates a woman’s right to equality, dignity, 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 by Miss Nundy, that a rape is a rape and a rapist remains a rapist. He argues that the impugned Exception is particularly egregious because it denies the wife the ability to prosecute her husband for the act of rape, whereas the same act by any other male would entitle the woman to prosecution. He notes that this entitlement is available to all other women, including those of easy virtue and sex workers, who can decline consent and prosecute for rape. Denying such a right to a wife renders her consent immaterial and deprives her of the right to prosecute for violation of her bodily integrity, privacy and dignity at the hands of her husband., Mister Rao echoes the primary contention of all learned counsel who have argued against the impugned Exception: the absence of consent is the foundation of the offence of rape under Section 375 of the Indian Penal Code. He submits that the Exception is based on the archaic belief that marriage implies consent by the wife for sexual intercourse with the husband throughout the marital bond, a notion that is outdated and inconsistent with applicable law guaranteeing equal protection to married women. 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., Mister Rao submits that classification based on marital status creates an anomalous situation, giving married women lesser protection against non‑consensual sexual intercourse by their own husbands than against strangers, and that Sections 376(2)(f) and 376C of the Indian Penal Code recognise that an act perpetrated by a person in a position of trust is more egregious than one committed by a stranger. He further argues that preservation of the institution of marriage cannot justify retention of the impugned Exception. He points out that a decree for restitution of conjugal rights cannot compel parties to have sexual intercourse and may be enforced only by attachment of property under Order XXI Rule 32 of the Code of Civil Procedure, 1908. He advances that marriage is no longer sacrosanct and that legislative provisions for divorce and judicial separation support this conclusion. He notes that procreation is not the only purpose of marital sexual intercourse and that the institution of marriage cannot be imperilled even if the Exception is struck down, because the husband would be liable to prosecution under several other offences., Mister Rao also addresses concerns that striking down the impugned Exception would permit interference in the private marital sphere. He submits that such interference is already permissible for other offences applicable to the situation, such as Sections 354A to 354D, 319 and 339 of the Indian Penal Code, and that the same evidentiary yardstick would apply to non‑consensual marital intercourse. He argues that legislative unwillingness to recognise rape when perpetrated by a husband upon his wife affronts the dignity of the wife and violates her fundamental right to life and liberty. Constitutional courts are enjoined to strike down any provision of law that violates fundamental rights, as mandated by Article 13 read with Article 226 of the Constitution of India., Mister Rao refers to decisions rendered by courts abroad that have removed the marital exception to rape and provides a tabular chart of such decisions. While acknowledging that the statutes in the United Kingdom and Nepal did not contain a provision akin to the impugned Exception, he 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 the perpetrator’s wife. He argues that the view in those decisions—that the marital rape exception was repugnant, illogical, an abuse of human rights and unable to withstand scrutiny—applies mutatis mutandis to the impugned Exception., Mister Rao submits finally that the impugned Exception is in conflict with India’s obligations under Articles 1, 2, 5 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which envisages elimination of discrimination against women in relation to marriage and repeal of penal provisions constituting such discrimination. Accordingly, courts are bound to give effect to these international obligations., Submissions of Miss Rebecca John, amicus curiae. Miss John submitted, with even greater fervour than Mister Rao, that the impugned Exception could not sustain for an instant. She acknowledges that the foundational basis for the Exception is marriage and 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 Exception was to protect the conjugal rights of the husband. She further explains that the common law position excluded a wife’s consent from the purview of the penal provision and that 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, granting irrevocable sexual consent to the husband., Miss John submits that the impugned Exception necessarily results in a complete and unequivocal disregard of the wife’s right to consent to sex within marriage, and consequently exempts a husband from prosecution 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, where Justice Chandrachud held that the validity of a law which infringes fundamental rights must be tested on the basis of its effect on the guarantees of freedom, not on the object of the statute. The Exception, she says, leaves married women helpless for an offence of rape committed by their husbands., Miss John analogises the present case with Joseph Shine. In that case, the Supreme Court of India 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. She submits that the impugned Exception represents an antiquated notion of marriage between unequals, contrary to the modern concept of marriage 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 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, where it was held that striking down the marital rape exception is not the creation of a new offence but the removal of a common law fiction that had 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 306 of the Indian Penal Code, which address dowry death, abetment of suicide and other related offences.
id_60	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, Srl. No.; 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 next 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 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 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, Mr Sai Deepak submits, 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)., 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, 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 on whether the observation in Navtej Johar that pre‑Constitutional laws lack presumption of constitutionality is correct, exists., In any event, Mr Sai Deepak submits that 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. 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, 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. No document has been placed on record by the petitioners to show 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, is not the sole deciding factor and is to be examined in the backdrop of the circumstances in which it is refused.
id_60	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 Mister 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 factualy baseless. Mister 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 Mister 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. Mister 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, Mister Sai Deepak submits that the petitioners cannot 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, Mister 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, 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 Mister 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 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., Mister Sai Deepak has, finally, distinguished the position as it obtains in India with that which obtains in overseas jurisdictions. In the Sexual Offences Act 2003 of the United Kingdom, for example, Section 1 entitles the accused to defend himself on the ground that he was under a reasonable belief that sexual intercourse with the alleged victim was consensual. This constituted an in‑built 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 exhaustively set out in the Act, which also lays out the standard operating procedure for prosecution of such cases. Moreover, the Sexual Offences Act was a product of legislative, and not judicial, intervention, and was 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 that in India would be covered by Section 376B. In Nepal, petitions similar to the present were dismissed; moreover, several procedural safeguards had been introduced when spousal sexual violence became criminalised, including the necessity of initiating legal proceedings within thirty‑five days of the commission of the offence. The Nepalese law was also gender neutral. In the United States, different states have adopted different positions, and in each of those states the legislation was introduced by the legislature and not by the judiciary. None of these instances, therefore, addresses a situation such as the present in a gender‑neutral backdrop., Submissions of Mister R. K. Kapoor, counsel for HRIDEY. Mister Kapoor, who appeared for one of the intervenors, draws attention 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 1 March 2013, in which the 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, Mister Kapoor points out that the 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. Mister 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 Mister Kapoor, 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., Mister 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 imprisonment 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, Section 376B is in the nature of an exception to Exception 2 to Section 375, setting out a separate and distinct class. This, too, indicates that the legislature, in its wisdom, consciously retained the impugned Exception, despite making spousal sexual violence an offence in cases where the spouses were judicially separated. The legislative wisdom in such cases cannot be tested by the Supreme Court of India, 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, Mister Kapoor submits that Article 14 forbids unequal treatment without intelligible differentia having a rational nexus to the object sought to be achieved. 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., Mister 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, also amounts to cruelty, which is a ground for divorce., In fine, Mister 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 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. Meaningful art needs a clean canvas. 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 chromosomal circumstance that makes one a man and the other a woman has, with the passage of time, ceased to have any significance worth the name. The Hale dictum of the fifteenth‑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 entirely in agreement with that observation. There is nothing whatsoever to indicate that the impugned Exception, either at the time of its original conception or later, 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, is therefore, in my view, unjustified., When 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 perceptions, change. The Supreme Court of India cannot test the constitutionality of such provisions solely by regarding their object as what the original framers deemed it to be. Where, especially, the issue of continuance of the provision has come in for constitutional deliberation even post‑enactment of the Constitution, the Court has to be alive to whether the retention or scrapping of the provision would be advisable given present socio‑legal realities and the justifiability for retention as perceived by the legislature, even if it differs from the original purpose. 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 in the present day, the Court 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 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 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, 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. 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‑consensional., Is this unconstitutional? That is the issue before us. We are not to judge whether non‑consensual sex within marriage ought or ought not to be punished or, if it is, to opine on the appropriate punishment. 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 Miss 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 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 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 Miss 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, 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 Mister 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 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 life by one of another is not murder, every incident of non‑consensual sex of a man with a woman is not rape, however 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 and the relationship, 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 1 March 2022 by Miss Nundy, otherwise one of the most vocal 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 law 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. Miss 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, Miss 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, namely Articles 14, 19(1)(a) and 21. Needless to say, if the impugned Exception violates even one of these Articles, it would be unconstitutional., 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, is declared by the impugned Exception to be in no case rape. The statutory proscription is absolute., Applying the intelligible differentia test, the impugned Exception would 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 Miss 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, which provides that no spouse can be compelled to give evidence against the other. 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 Miss 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 Miss Nundy, is no ticket to sex. There is 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 Miss 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 relationships; 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 matrimonial knot, is 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, of a legitimate expectation of sex., This aspect of the matter has been correctly emphasised by Mister 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 Miss 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 Mister Rao, learned amicus, sought to advance. Mister 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. Mister Rao sought to contend that the incongruity in the impugned Exception was manifest from the fact that while, in the first, second and 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 Mister 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_60	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. Between a husband and wife, who spend their days and nights together, living in a house which, 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 if 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. It is for this reason that there is an enforceable legal right, which Miss Nundy acknowledges, of 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 courts, a binding legal obligation. A court hearing a petition for divorce, even by mutual consent, is not entitled to grant divorce 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., Of marriage, the Supreme Court of India spoke thus, in Mr X v. Hospital Z: \Marriage is the sacred union, legally permissible, of two healthy bodies of opposite sexes. It has to be a mental, psychological and physical union. When two souls thus unite, a new soul comes into existence. That is how life goes on and on on this planet.\ In somewhat greater detail, Chetan Dass v. Kamla Devi observes: \Matrimonial matters are matters of delicate human and emotional relationship. It demands mutual trust, regard, respect, love and affection with sufficient play for reasonable adjustments with the spouse. The relationship has to conform to the social norms as well. The matrimonial conduct has now come to be governed by statute framed, keeping in view such norms and changed social order. It is sought to be controlled in the interest of the individuals as well as in a broader perspective, for regulating matrimonial norms for making of a well‑knit, healthy and not a disturbed and porous society. The institution of marriage occupies an important place and role to play in society, in general. Therefore, it would not be appropriate to apply any submission of irretrievably broken marriage as a straitjacket formula for grant of relief of divorce.\, 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, (3) holding out to the public that they are married. Sharing a common household and 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 out of marital relationship, as per law, in the matter of inheritance of property, succession, etc. Marriage, therefore, involves legal requirements of formality, publicity, exclusivity and all the legal consequences flow out of 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. Marriage, as per the common law, constitutes a contract between a man and a woman, in which the parties undertake to live together and support each other. Marriage, as a concept, is also nationally and internationally recognised.\, O'Regan, J., in Dawood v. Minister of Home Affairs, noted as follows: \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 to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge 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 such relationships have more than personal significance at least in part 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 for the security, support and companionship of members of our society and bear 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. These legal obligations perform an important social function. This importance is symbolically acknowledged in part by the fact that marriage is celebrated generally in a public ceremony, often before family and close friends.\, Learned counsel for the petitioners have, in my considered opinion, completely failed to accord the marital relationship the status and importance it deserves. It has been characterised by counsel, even in their written submissions, as an institution to which individual rights cannot be subservient. Marriage, the submissions fail to take into account, 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 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. A legislation that seeks to keep out, from the parameters of such a relationship, any allegation of rape, 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 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, the petitioners 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 that it has outlived its use is also completely bereft of substance. This is quite apart from the fact that, as I observe elsewhere in this judgment, the impugned exception results in no prejudice at all to the fundamental rights of wives., 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 judgement for the value judgement 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. To presume that the impugned exception is unconstitutional on that basis is erroneous. The exception does not expressly or by necessary implication confer on the husband an entitlement to insist on sex with his wife against her willingness. All it says is that sexual intercourse by a husband with his wife is not rape. By extrapolation, it may be inferred that the exception also excepts 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 to matrimony a sense of fruition and fulfilment. Similarly, the Division Bench in Rita Nijhawan v. Balkrishan Nijhawan, cited with approval by the Supreme Court in Vinita Saxena v. Pankaj Pandit, held that marriage without sex is an anathema and that sexual activity in marriage has an extremely favourable influence on a woman's mind and body. The Court recognised 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 court. Marriage, as a sociological instrument, confers legitimacy to sexual activity between man and woman. A child born of wedlock is legitimate; one born out of wedlock is not. Neither member of an unmarried couple has a right to seek sex from the other, nor does either have a right to expect sex. The expectation of sex of the husband with his wife is therefore a legitimate expectation, a healthy sexual relationship being integral to the marital bond. Unjustified denial of sexual access by either spouse is not sanctified or condoned by law; while it may not invite criminal action, it entitles the aggrieved spouse to seek separation by way of divorce. The law recognises the legitimacy of the desire of either spouse to have meaningful sexual relations with the other as both a civil and a legal obligation.
id_60	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 therefore 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., One of the most significant distinctions between the two situations is that, in the case of an act 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 in their further submission 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., For this reason, 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, however, 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, emerging from the avalanche of cases which have flooded this Court since the commencement of the Constitution, 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 not only contains a lucid statement of the propositions arising under Article 14, but 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. They recognise that classification can be made for the purpose of legislation but lay down that: (1) the classification must not be arbitrary but must be rational, that is to say, it must be based on qualities or characteristics which are found in all the persons grouped together and not in others who are left out, and those qualities must have a reasonable relation to the object of the legislation; (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., It is clear that Article 14 does not forbid reasonable classification of persons, objects and transactions by the legislature for the purpose of attaining specific ends. What is necessary to pass the test of permissible classification under Article 14 is that the classification must not be arbitrary, artificial or evasive but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislature. 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 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 otherwise appear 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., The following declaration of the legal position, found in paragraph 11 of the judgment of the Supreme Court 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.' This passage may be regarded as Article 14 in its ultimate distilled form, purified of extraneous impurities. 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., The Court must also 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: 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, originally envisaged by Macaulay as protection of the conjugal rights of the husband, has evolved over time and today, if the legislature hesitates, is to preserve the marital institution. The contention of Ms. Nundy that such an object is illegal is, in my mind, absurd and merits outright rejection. She cited paragraph 74 of the report in Independent Thought and paragraph 212 of the report in Joseph Shine. Independent Thought examined whether preservation of the marital institution was a justification in the case of marriage with a girl child who was statutorily incapable of giving meaningful consent. 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 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., There is an intelligible differentia between the two situations, as 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 peregrinate, else the task of legislation would become virtually 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 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 the sword or the 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.', The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self‑imposed discipline of judicial restraint. 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.' 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 but 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 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. Arbitrary selection, it has been said, cannot be justified by calling it classification. Conceivably there may be a law relating to a single individual if it is made apparent that, on account of some special reasons applicable only to him and inapplicable to anyone else, that single individual is a class by himself.'
id_60	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_60	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 overrated 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)., But 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 Supreme Court of India 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 etc., 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. Here we find the germ of the doctrine of direct and inevitable effect, which necessarily must be effect intended by the legislature, or, in other words, what may conveniently and appropriately be described as the doctrine of intended and real effect., 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, Supreme Court of India applied the test of direct and immediate effect. Relying upon the decision in Dwarkadas Shrinivas v. Sholapur Spinning & Weaving Co. Ltd, the Court 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 the 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 that, 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, while the effect of the laws on fundamental rights of the individuals in general would 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 impeached 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. Arguendo, 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 pretext 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 emphasizing 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 other words, in the two situations between which the legislature seeks to draw a distinction, i.e., of 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 man as the husband of the woman 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 Supreme Court of India 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, or his, 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 (i) 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 (ii) 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 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, are 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_60	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‑à‑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, in any manner. In fact, the impugned Exception does not even come into 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 of the Constitution, 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 of the Constitution. Neither do the learned counsel for the petitioners, nor the learned amici, suggest otherwise., 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, and 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 husband's act of having sex with his wife against her will satisfies the ingredients of any of the aforementioned criminal statutory provisions, he would be criminally liable; otherwise, he would not., This 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, representing 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 label. Where 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, as 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 well‑established indicia, that we can strike the provision down. Even then, our power would be conditioned by the consideration that, by doing so, we should not be creating an offence, a point discussed later. If the petitioners feel that a husband compelling, or even forcing, his wife to have sex against her will should amount to rape and attract Section 375, or that the other applicable provisions in civil and criminal law are insufficient, they would have to take up the issue in Parliament, not in court. Should the legislature be convinced of their case, the petitioners' grievances may be met. If the Indian Penal Code is amended as they would seek, 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 of the Indian Penal Code 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 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 Section 375 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 petitioners' argument, as 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, then that would be a case which they would have to take up before Parliament, seeking enactment of a law to cover all cases of non‑consensual sexual intercourse or sexual acts between husband and wife. Parliament is empowered to legislate and frame a new law for the said purpose. Equally, 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 faulty premise that every act of non‑consensual sex by a man with a woman, irrespective of the relationship, circumstances, and distinguishing features, is necessarily to be regarded as rape. I have already disabused this submission earlier. Absent this presumption, there is no basis whatsoever for Ms. Nundy's submission 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 therefore, in my view, must 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 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 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 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 exists only if the act falls within Section 375 and is not covered by either of the Exceptions thereto. There is no right, relatable to any provision of Part III of the Constitution, for a 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, 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 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 paragraph reads: '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, 2018 SCC OnLine Del 7605, 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 Mr. Rao has said about 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 becomes starkly apparent. A woman who is waylaid by a stranger and suffers sexual assault, even if it falls short of actual rape, sustains much more physical, emotional and psychological trauma than a wife who, on one or more occasions, has 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 forced into non‑consensual sex by a stranger cannot be said to visit a wife placed in the same situation vis‑à‑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 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, 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 the impugned Exception would achieve is removal of an unconstitutional restraint on the operation of the main Section. While removal of the impugned Exception may enlarge the class of offenders liable to be prosecuted 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 contended 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. They have placed considerable reliance on the decision in Independent Thought (1) 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 (1) 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 outright improper. The Supreme Court has taken pains in that 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 (1) 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 Prevention of Child Marriage Act. The judgment underscores the keen sensitivity that the Supreme Court has extended to the rights of the girl child., 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 creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any objective sought to be achieved. The artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child. It is also 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. The artificial distinction turns a blind eye to trafficking of the girl child and surely each one of us must discourage trafficking which is such a horrible social evil., 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 POCSO 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 POCSO 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 POCSO Act. Consequently, it is immaterial if a person is guilty of the same sexual activity under the provisions of the POCSO Act or the provisions of the Indian Penal Code; the end result is the same and only the forum of trial changes. In a violation of the provisions of the POCSO Act, a Special Court constituted under Section 28 of that Act would be the trial court but the ordinary criminal court would be the trial court for an offence under the Indian Penal Code., At this stage it is necessary to refer to Section 42‑A inserted in the POCSO Act by an amendment made on 3‑22‑2013. 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.' The consequence of this amendment is that the provisions of the POCSO Act will override the provisions of any other law (including the Indian Penal Code) to the extent of any 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 POCSO Act and which provision overrides the other. To decide this, it would be necessary to keep Section 42‑A of the POCSO 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 POCSO 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., A girl child placed in such circumstances is a child in need of care and protection and needs to be cared for, protected and appropriately rehabilitated or restored to society. All these child‑friendly statutes are essential for the well‑being of the girl child (whether married or not) and are protected by Article 15(3) of the Constitution. These child‑friendly statutes also link child marriages and sexual intercourse with a girl child and draw attention to the adverse consequences of both., 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 POCSO Act only. An anomalous state of affairs exists on a combined reading of the Indian Penal Code and the POCSO 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 POCSO 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 POCSO 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, push her into a deep emotional crisis and dwarf and destroy her whole personality and degrade her very soul. However, she could prosecute the rapist under the POCSO 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. The relevant paragraphs of the Report read as follows: 'The exemption for marital rape stems from a long outdated notion of marriage which regarded wives as no more than the property of their husbands.'
id_60	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 in modern times is 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 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 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 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. 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, Lord Denning said 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. In Seaford Court Estates Ltd. v. Asher (affirmed in Asher v. Seaford Court Estates Ltd.) a judge, believing himself to be fettered by the 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 judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of such perfection, when a defect appears a judge must set to work on the constructive task of finding the intention of Parliament, not only from the language of the statute but also from a consideration of the social conditions which gave rise to it, the mischief it was passed to remedy, and then 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 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 is guilty of rape. The second class are women aged 18 years or above; such women can consent to 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 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 consent. However, if the girl child is married and she is aged above 15 years, 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 the 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, 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 so that it falls 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, other aspects 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 preferred interpretation is the one that protects the human rights of the child, safeguards the fundamental rights of the child, ensures the good health of the child, and does not excuse criminal acts merely because the practice is long‑standing., The State is entitled and empowered to fix the age of consent. The State can make reasonable classification, but any classification must be made with the object of achieving a certain end and must have 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 argues 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 is married before the age of 18 years she has the right to have 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, on the one hand, 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. Therefore, 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 against a woman with intent to outrage her modesty, sexual harassment, assault or use of criminal force to a woman 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 in such cases 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 to sexual intercourse. 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 the 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 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 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, where the wife is not 18 years of age, 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. (Emphasis supplied), The Supreme Court has, times without number, ruled that judgments are not to be lightened to Euclid's theorems, and are to be understood and applied as precedents, keeping in view the controversy before the Supreme Court., In its judgment in Independent Thought, the Supreme Court cautioned and clarified, 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 that issue, even collaterally. Any attempt to treat the decision as an authority on the constitutionality of the impugned Exception, as it applies to a marriage between adults, would be misguided and would disregard the cautionary statements of the Supreme Court. I am not inclined to agree with Mr. Gonsalves' submission that the Supreme Court could not have indicated the scope of its application. The Supreme Court was, in fact, merely harmonising the stipulation of the age of the wife in the impugned Exception (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 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 without its share of truths. The Supreme Court 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, the Supreme Court of India observed: “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.”, Thereafter, in Pathumma v. State of Kerala, the Supreme Court of India held that the court would 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 legislature is in the best position to understand and appreciate the needs of the people as enjoined by the Constitution to bring about social reforms for the upliftment of backward and weaker sections of society and for the improvement of the lot of poor people. The court will therefore interfere only when the statute is clearly violative of the right conferred on the citizen under Part III of the Constitution or when the Act is beyond legislative competence. Hence, 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 Supreme Court of India 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, one making the provision constitutional and the other making it unconstitutional, the former should be preferred. If it is necessary to uphold the constitutionality of a statute by construing its general words narrowly or widely, the court should do so., In Subramanian Swamy v. CBI, a Constitution Bench of the Supreme Court of India laid down that where there is a challenge to the constitutional validity of a law enacted by the legislature, the court must keep in view that there is always a presumption of constitutionality of an enactment, and 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 must be accorded to it. Where the legislation is challenged as being unconstitutional and violative of Article 14 of the Constitution, the court must remind itself of the principles relating to the applicability of Article 14 in relation to invalidation of legislation. The two dimensions of Article 14 in its application to legislation are (i) discrimination based on an impermissible or invalid classification, and (ii) excessive delegation of powers; conferment of un‑channelled and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders without guidance, control or checks, is violative of Article 14. A legislation does not become unconstitutional merely because another view or method may be considered as good or more effective; courts do not substitute their views on policy matters. Although Puttaswamy seems to restrict the applicability of this principle in the case of pre‑Constitutional legislations, there is substance in the contention that, where the validity and need for continuance of the legislation have been debated in Parliament, a vestige of constitutionality attaches to the legislation. It is therefore for the challenger to positively establish that the provision is unconstitutional.
id_60	24	Further, the afore‑extracted passages from Independent Thought 1 confirm and clarify that (i) Courts must show due deference to the legislative process, (ii) Courts should interfere only when the statute clearly violates the fundamental rights guaranteed by Part III of the Constitution, or where the provision is bad for want of legislative competence or for some similar ground, (iii) faced with a choice of interpreting the provision in a manner which would render it constitutional versus 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, (iv) 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 (v) this would be applicable, especially, in the case of issues 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 paragraph 190 of the report, which reads thus: One of the doubts raised was if this Court strikes down, partially or fully, Exception 2 to Section 375 of the Indian Penal Code, is the Court creating a new offence. There can be no doubt that the courts cannot create an offence. However, there can be no 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., It is significant that the aforesaid extracted paragraph 190 figures, in the judgement in Independent Thought 1 after paragraphs 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 affirming the power of a Court to strike down the statutory provision as unconstitutional for valid grounds, the Supreme Court of India, nonetheless, entered a caveat to this proposition, by clarifying that there could be no 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 Prevention of Child Marriage Act as well as the Protection of Children from Sexual Offences Act, the latter case as penetrative sexual assault which the Supreme Court of India held 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 Court may strike it down provided, by doing so, it is not creating an offence. If, by its judgement, the 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, however 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 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 Court is not empowered to prescribe punishments, equally the Court cannot, by its order, convert an act which, prior thereto, was not an offence, into an offence., Learned counsel submit that the 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 to cater to cases of non‑consensual sex within marriage which would thereby qualify as rape. To my mind, the suggestion bears outright rejection. That 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 the Court cannot do. Equally, therefore, the 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?, Learned counsel for the petitioners assert that by striking down the impugned Exception, this 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 before us is not even remotely comparable to that 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, is 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 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 a wife 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 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 Court would not be creating an offence but 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. Every offence consists of four elements: the act, the perpetrator, the victim and the punishment. Offences may legitimately be 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 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 therefore, under Section 375, not apply to acts committed by a husband with his wife., Viewed thus, it is obvious that, by eviscerating the impugned Exception, the 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, this Court would be denying 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 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. 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 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., The impact of Section 376(2)(f) and (n)., 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., Section 114A of the Indian Evidence Act, 1872 and its significance., Another serious concern expressed by learned counsel proposing the striking down of the impugned judgment is predicated on Section 114A of the Evidence Act., 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 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 viscera. 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. This 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 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 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 Court, allowing a situation of chaos to prevail in the interregnum., Other submissions., 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 paragraph 103 of the report): In the view of this 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 further holds, in paragraph 154 of the report, that where there is a contradiction between international law and a domestic statute, the 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, 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., Section 376B of the Indian Penal Code and Section 198B of the Criminal Procedure Code., 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 is a situation qualitatively distinct from sex between strangers as well as from sex between a husband and wife who are cohabiting. While 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 Court to see, in every case, 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., Conclusion., 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 a 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_600	0	Pronounced on 2nd June 2022 through Mr. Bhoopendra Singh and Ms. Sneh Lata Rana, Advocates versus Mr. Rajesh Mahajan, Additional Standing Counsel for Mr. R. S. Kundu, Additional Standing Counsel for the State with Inspector Pradeep., The petition has been filed under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 with the following prayers: (a) issue an appropriate direction and order in the nature of a writ of mandamus in favour of the petitioner and against respondents No.1 to 7 and direct them not to harass the petitioner and his entire family members in the name of interrogation; (b) pass an appropriate order or direction to respondents not to create any terror in the mind of the petitioner and his family members and save the fundamental rights to live with dignity and fearless life as enshrined under Article 21 of the Constitution of India; (c) pass any other order(s) which the Honourable Delhi High Court may deem fit and proper in favour of the petitioner and against the respondents., Mr. Bhoopendra Singh, learned counsel for the petitioner, submitted that the police, namely respondents No.1 to 7, were coming to his residence under the cover of investigations and were subjecting the petitioner and his family to harassment. He stated that an incident had taken place at Jahangir Puri on 16th April 2022 and the police were alleging that he and his family members had been somehow involved. However, the petitioner’s father had expired on 14th April 2022 and according to Muslim rites and customs, the Teeja of his late father was performed on 16th April 2022, starting at around 12 noon to 11 p.m. near Eidgah C‑Block, Jahangir Puri, Delhi. The petitioner’s entire family, including his five sons, were involved in these rites. Five hundred persons were invited and at about 6:45 p.m., Roza Iftar was also arranged. Unfortunately, on the same day at about 6 p.m., a commotion erupted with pelting of stones between two communities. On 17th April 2022 at about 3 a.m., police from Police Station Jahangir Puri came to the house of the petitioner’s eldest son, picked him up and sent him to judicial custody on allegations of being involved in the Jahangir Puri riots., The learned counsel emphasized repeatedly that the petitioner, as a citizen of this country, has the fundamental right to live with dignity and fearlessly, as assured under Article 21 of the Constitution of India. Therefore, it was submitted that the police be restrained from harassing him and his family., Mr. Rajesh Mahajan, learned Additional Standing Counsel for the State, relied on the status report filed and placed on record under Index No. 880331, to submit that the police were only investigating the Jahangir Puri riots which took place on 16th April 2022. According to the learned counsel, on 16th April 2022 Inspector Rajeev Ranjan, Police Station Jahangir Puri, along with his staff, was deployed for security arrangement in the area in connection with a procession on the eve of Hanuman Jayanti. The procession was proceeding peacefully till it reached Jama Masjid, C‑Block, Jahangir Puri at around 6 p.m., when a person named Ansar came there and started arguing with the members of the procession. Several of his associates also came to the spot and joined Ansar and arguments culminated in stone pelting and stampede. Additional force was called to control the situation and senior police officers also reached the spot. The mob went out of control and 52 tear‑gas shells had to be fired. The rioters were armed with deadly weapons, including firearms, swords, etc., and they caused injuries to as many as eight police officers, including Sub‑Inspector Meda Lal, who sustained a bullet injury on his left forearm due to firing by the rioters. Another civilian, who was part of the procession, also sustained injuries. The rioters damaged vehicles and set a scooter on fire., As a result, FIR No. 440/2022 was registered at Police Station Jahangir Puri on the basis of the statement of Inspector Rajeev Ranjan under Sections 147, 148, 149, 186, 353, 332, 307, 323, 427, 436 of the Indian Penal Code and Section 27 of the Arms Act, and subsequently Sections 109, 120B and 34 of the Indian Penal Code and Section 25 of the Arms Act were also added. The investigations were transferred to the Crime Branch. The learned counsel submitted that during investigations, a large number of people have been identified indulging in rioting, wielding swords, waving and using firearms, pelting stones and glass bottles and as on 12th May 2022, 34 persons and three CCLs have been apprehended. Others were absconding, including the petitioner and his son Ashnoor. Non‑bailable warrants have been issued against them., It was further submitted that in the course of the investigations and questioning of people already apprehended, it has been revealed that the petitioner was one of the main conspirators and perpetrators of the entire incident and was evading the process of law. It was alleged that the petitioner was actively involved in aggravating the situation and instigating his community in pelting stones, bottles, and attacking the Hanuman Jayanti procession with firearms, swords, bricks, bottles and other weapons. He spread the message amongst the local residents and his community to accumulate stones, brick pieces, glass bottles, swords and other arms to be used at an appropriate time. The petitioner had hatched a deep conspiracy to disturb the communal harmony of the country. It was further submitted that the Forensic Science Laboratory team found bricks, glass, ceramic pieces, and seized them from the terrace of H.No. C‑51, Jahangir Puri, belonging to the petitioner, apart from other places., The learned counsel further submitted that in the garb of the present petition, the petitioner was actually seeking anticipatory bail, which was not permissible., I have heard the submissions and have perused the material on record. The petition has been filed under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure probably to get over the limited scope under Section 482 to issue any orders especially on the lines prayed for in the petition. Be that as it may, the Delhi High Court finds no reason to issue any directions in exercise of its powers under Article 226 of the Constitution of India, in view of the status report filed by the respondent State disclosing that the police were only investigating the offences for which FIR No. 440/2022 has been registered. As observed by the Judicial Committee in King‑Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18, and reiterated by the Supreme Court in State of West Bengal and Ors. v. Sampat Lal and Ors., (1985) 1 SCC 317, the functions of the judiciary and police are complementary and each must be allowed to exercise its own function, with due observance of law and order and a concern for individual liberty., Again, in State of Bihar v. J. A. C. Saldanha, (1980) 2 SCR 16, the Supreme Court reiterated that there is a clear‑cut and well‑demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the exclusive field of the police. The police have a duty to keep vigilance over the law‑and‑order situation and to prevent crimes. If an offence is alleged to have been committed, it is their bounden duty to investigate the offence and bring the offender to book. It is also duty bound to collect evidence for the purposes of proving the offence. Adjudication would come only after a final report is submitted to the court. While these observations were made, no doubt, in regard to the question whether the court could guide investigations, these observations are apposite to the present matter., The police have reported that offences had been committed on 16th April 2022 near Jama Masjid, C‑Block, Jahangir Puri. Weapons were used. Police are investigating the role of each person and have found leads pointing to the deep involvement of the petitioner. The petitioner admits that he had been present with 500 people at the Eidgah C‑Block, Jahangir Puri, though for the Teeja rites of his late father. The Forensic Science Laboratory has found material at his terrace. The older son has already been arrested., In these facts and circumstances, it is evident that the petitioner has moved this petition to thwart investigations. The Delhi High Court cannot allow itself to be used in such a fashion, which may lead to interference with the investigations, and which has always been frowned upon by the courts., In the light of the facts and circumstances noted hereinabove, this does not appear to be a case in which the police have contacted the petitioner and his family only with ill‑motives to harass them. The police have to find out who were the perpetrators of the various offences committed on 16th April 2022 and, as a citizen of this country, it is only to be expected that while the petitioner seeks enforcement of his fundamental rights, he would also do his duties and help the police resolve the crime and apprehend the perpetrators., As rightly pointed out by the learned Additional Standing Counsel for the State, this petition appears to be of a phishing kind, seeking anticipatory bail, in the garb of directions to the police not to harass the petitioner and his family., There is no merit whatsoever in the present petition, which is dismissed. For abundant measure, it is recorded that the observations made in this order are only for the purposes of disposal of the present petition., The petition stands disposed of, along with the pending application., The judgment be uploaded on the website forthwith.
id_602	0	The present Special Leave Petition is being filed under Article 136 of the Constitution of India, inter alia, challenging the final Judgment and Order dated 9 November 2020 passed by the Division Bench of the Honourable Bombay High Court of Judicature at Bombay in Criminal Application Stamp No. 4278 of 2020 in Criminal Writ Petition Stamp No. 4132 of 2020 whereby the Honourable Bombay High Court rejected the prayer for ad‑interim relief of the Petitioner for bail in FIR No. 59 of 2018, dated 5 May 2018, registered at Alibaug Police Station, Raigad, under Sections 306 and 34 of the Indian Penal Code, 1860. The present petition raises substantial questions of law of general public importance which arise for consideration by this Honourable Court, inter alia as follows:, Whether the Honourable Bombay High Court by its order dated 9 November 2020 erred in law by refusing bail to the Petitioner in connection with FIR No. 59 of 2018, especially when the Petitioner's arrest was illegal, malafide and politically motivated as evident from the multifarious proceedings initiated against him, his news channels, Republic TV and R. Bharat at the behest of the political dispensation in the State of Maharashtra and the Respondent Nos. 1 and 3. Whether the Honourable Bombay High Court erred in law by refusing bail to the Petitioner by its order dated 9 November 2020, especially when the Learned Chief Judicial Magistrate, Raigad, Alibaug in its remand order dated 4 November 2020 had observed that the arrest of the Petitioner and other accused in FIR No. 59 of 2018 was illegal and there were no grounds made out for granting police custody of the Petitioner and other accused. Whether the Honourable Bombay High Court erred in law by refusing bail to the Petitioner by its order dated 9 November 2020, especially when investigation into FIR No. 59 of 2018 had been closed by a closure summary report filed by the police and accepted by the Learned Chief Judicial Magistrate, Raigad, Alibaug by an order dated 16 April 2019. Whether the Petitioner could have been arrested for the offences alleged in FIR No. 59 of 2018 without any judicial order setting aside the Learned Chief Judicial Magistrate, Raigad, Alibaug's order dated 16 April 2019 by which the closure report was accepted in the matter or in the absence of any order directing reinvestigation or further investigation in the matter. Whether the Petitioner could have been arrested in connection with FIR No. 59 of 2018 without any prior summons or notice in the matter from the Mumbai police under the relevant provisions of law, especially when investigation into FIR No. 59 of 2018 was closed by the summary report accepted by the Learned Chief Judicial Magistrate. Whether the Honourable Bombay High Court in its order dated 9 November 2020 erred in law by omitting to consider the assembly discussions on the floor of the Maharashtra Legislative Assembly on 8 September 2020 wherein certain cabinet ministers had called for the arrest of the Petitioner in connection with FIR No. 59 of 2018, demonstrating that the arrest of the Petitioner was malafide and politically motivated. Whether the Honourable Bombay High Court in its order dated 9 November 2020 failed to consider the settled law and judicial precedents under Section 306 of the Indian Penal Code in not appreciating that the Petitioner's detention is unjustified and the transaction was purely commercial between two corporate entities and there is nothing on record to suggest that the Petitioner had provoked or incited or encouraged the deceased, Mr. Anvay Naik, to commit suicide, nor is there anything to show that the Petitioner had committed any act which was proximate to the demise of the deceased. Whether the balance of convenience is in favour of the Petitioner being released on bail as his arrest and continued detention is illegal and there is no judicial order setting aside the Learned Chief Judicial Magistrate, Raigad, Alibaug's order dated 16 April 2019 by which the closure report was accepted or in the absence of an order directing reinvestigation or further investigation in the matter. Whether an investigation which is finally closed can be reopened by the State by an executive order, absent any judicial order. Whether the Honourable High Court could have finally decided the question that investigation can be reopened even after closure of a matter without a judicial order., The Petitioner states that no other petition seeking leave to appeal has been filed by him against the interim Judgment and Order dated 9 November 2020 passed by the Division Bench of the Honourable Bombay High Court of Judicature at Bombay in Criminal Application Stamp No. 4278 of 2020 in Criminal Writ Petition Stamp No. 4132 of 2020. The annexures, being Annexure P/1 to Annexure P/10 produced along with the present Special Leave Petition, are true copies of the pleadings and documents which formed part of the records of the instant case., Leave to appeal is sought on the following grounds: Because the Honourable Bombay High Court has finally decided the writ petition against the Petitioner even though it is titled as an interim order, and on various aspects the Court has rendered final findings although the only prayer and arguments advanced were on the question of bail. Because the Honourable Bombay High Court erred in concluding that power under Article 226 of the Constitution should not be exercised when there is an alternative efficacious remedy. Because the Honourable Bombay High Court erred in holding that in the case of State of Telangana it was not held that power under Article 226 of the Constitution cannot be exercised to grant bail to a petitioner in a case where the prayer is for quashing. Because the Honourable Bombay High Court erroneously held, based on a submission by the State, that the writ petition was not maintainable because the Petitioner was in judicial custody at the time of filing the habeas corpus petition, whereas the prayer included a prayer for quashing the proceeding which is clearly maintainable. Because the Honourable Bombay High Court erred in relegating the Petitioner to a remedy under Section 439 of the Code of Criminal Procedure when the case involves personal liberty and after giving final findings in the writ petition itself. Because the Honourable Bombay High Court erred in stating that even at the interim stage final findings have been returned on the question of the summary report and held that even where a case is closed the power of investigation under Section 173(8) of the Code of Criminal Procedure remains despite the order not being set aside by a judicial forum. Because the Honourable Bombay High Court, having concluded that an investigation under Section 173(8) of the Code of Criminal Procedure is possible even after the acceptance of the closure report, has therefore virtually concluded that the arrest of the Petitioner is legal., Because the Honourable Bombay High Court relied on a noting by the magistrate that she has 'seen and found' the report of the Crime Investigation Branch, Alibaug, which does not amount to setting aside the earlier order dated 16 April 2019 and the learned magistrate could not have reviewed the order because of Section 362 of the Code of Criminal Procedure. Because the Honourable Bombay High Court did not even advert to judgments such as Vinay Tyagi v. Irshad Alia (2013) 5 SCC 762 (paras 40.6 and 49) which suggest that once a closure report is accepted, the curtains come down on the case, and therefore it is an error to permit the police to reopen the investigation under Section 173(8) of the Code of Criminal Procedure without a judicial order for reinvestigation. Because the Honourable Bombay High Court erred in not dealing with the order of the Chief Judicial Magistrate, Raigad, Alibaug which was placed in great detail at the time of final arguments. Because the entire investigation and consequent arrest of the Petitioner are completely illegal, and the illegality continues to perpetuate every moment constituting gross violations of Article 21 of the Constitution of India. Because, in addition to the grossly illegal and invalid investigation and consequent arrest, the police have proceeded to pray for the Petitioner's police custody, adding insult to injury; this ground is only available now before this Honourable Court relying on the doctrine of alternative remedy not being an impediment where there are such violations of fundamental rights under Article 21 of the Constitution of India. Because the reasoning of the impugned judgment from paragraph 31 at page 19 onwards, however, till paragraph 37 at page 33, the Honourable Court dealt with habeas corpus law when it was categorically made clear that the petitioner was not pressing that prayer and was interested only in the prayers for quashing of the case and the investigation and, as a sequitur, for the grant of interim relief like bail., Because despite the judgments of Girish Suneja, Asian Resurfacing and Kartar Singh which specifically authorize the High Court to grant bail in writ jurisdiction, the High Court relied on the judgment of State of Telangana v. Habib Abdulla Jeelani (2017) 2 SCC 779, particularly paragraphs 13, 14 and 20, to hold that proceedings under Article 226 of the Constitution of India are not to be converted into proceedings for anticipatory bail under Section 438 of the Code of Criminal Procedure and that the same principle will apply to Section 439 of the Code of Criminal Procedure. Because the Honourable High Court overlooked the fact that this view was completely wrong and ignored a binding precedent of a coordinate bench in Raju Ram Purohit v. Union of India (2018) SCC Online Bombay 2262 (paras 3 to 7 and particularly para 4). Because in UPSC v. Papaiah (1997) 7 SCC 614, this Honourable Court categorically dealt with a case where the first informant was not given notice or heard by the magistrate while accepting a summary report and clearly took the view that the informant could approach the magistrate under Section 173(8) of the Code of Criminal Procedure and that the passing of further judicial orders was contemplated in a situation like this. Because the Honourable Bombay High Court by its order dated 9 November 2020 erred in law by refusing interim bail to the Petitioner in connection with FIR No. 59 of 2018, especially when the Petitioner's arrest was illegal, malafide and politically motivated as evident from the multifarious proceedings initiated against him, his news channels, Republic TV and R. Bharat at the behest of the political dispensation in the State of Maharashtra and the Respondent Nos. 1 and 3. Because there is an error apparent on the face of the record in as much as the impugned order dated 9 November 2020 records that there is no dispute that as on the date of filing of the petition there was already an order of the jurisdictional magistrate for remand of the petitioner in custody, and proceeds to deal with the matter based on this erroneous understanding. Because the Honourable High Court failed to appreciate that the arrest of the Petitioner on the morning of 4 November at around 7:45 a.m. in connection with FIR No. 59 of 2018 was illegal, malafide, politically motivated, malicious and without due process of law. Because the Honourable High Court in the impugned order dated 9 November 2020 has completely erred in law and facts in as much as it failed to appreciate that at the time of filing the writ petition before the Honourable High Court (2.30 p.m. on 4 November 2020), the Petitioner was not even produced before the Learned Chief Judicial Magistrate, Raigad, and therefore the question of the existence of an order of the jurisdictional magistrate for remand of the Petitioner in custody does not and cannot arise., Because the Honourable Bombay High Court in its impugned order dated 9 November 2020 erred in law by refusing interim bail to the Petitioner, especially when the Learned Chief Judicial Magistrate, Raigad, Alibaug in its remand order dated 4 November 2020 had observed that the arrest of the Petitioner and other accused in FIR No. 59 of 2018 was illegal and there were no grounds made out for granting police custody of the Petitioner and other accused. The relevant portions of the remand order state: after taking note of the reasons of objections to police custody presented by accused 1 to 3, it appears that the arrest of the accused itself is illegal; there is no satisfactory answer regarding the connection between the deceased Kumudini Naik and the accused; no strong evidence justifies police custody; the background of the crime cannot be established; consequently a summary report should be accepted and police custody rejected., Because the Honourable Bombay High Court failed to appreciate that investigation into Criminal Report No. 0059 of 2020 had already been closed as the Learned Chief Judicial Magistrate, Raigad‑Alibaug had accepted the closure summary report by an order dated 16 April 2019, and absent any judicial order directing reinvestigation or setting aside that order, the reinvestigation by the Mumbai police and the arrest of the Petitioner were malafide, politically motivated and bad in law. Because the Home Minister or any member of the Executive is not empowered in law to order reinvestigation of a case which has been closed by a judicial order; only a superior court has such power. Because the Honourable High Court also completely erred in holding that the exercise of supervisory powers of superintendence of the police force throughout the State of Maharashtra vests in and is exercisable by the State Government and that any direction by any officer of the police force shall be subject to such superintendence, citing State of Bihar v. J.A.C. Saldanha, thereby allowing the State Government to direct further investigation. Because the Honourable High Court failed to appreciate that, on its face, there could not have been a case made out under Section 306 of the Indian Penal Code as the underlying contract was between two corporate entities and the accused was not a contractual party to it. Because the Honourable High Court misread the judgment of this Court in Jagisha Arora v. State of Uttar Pradesh (Writ Petition (Criminal) No. 164 of 2019) by restricting its application to only the relevant provisions of the Indian Penal Code discussed in that case, rather than applying its principles equally to the present case. Because the Honourable High Court ignored the apparent malafide nature of the state machinery in re‑initiating an illegal investigation for the sole purpose of making an illegal arrest of the Petitioner. Because the Honourable High Court ought to have exercised its jurisdiction to grant bail in the exercise of its powers under Article 226 of the Constitution of India as the Petitioner’s arrest was illegal, politically motivated and bad in law, and the Petitioner ought not to have been relegated to pursue his remedy under Section 439 of the Code of Criminal Procedure. Because the Honourable Bombay High Court failed to appreciate that the Learned Chief Judicial Magistrate, Raigad, while remanding the Petitioner to judicial custody on 4 November 2020, observed that the arrest of the Petitioner was illegal and police custody was not warranted. Because the Honourable High Court failed to recognize the political vendetta with which Criminal Report No. 0059 of 2018 has been reopened and the arrest effected, which is completely contrary to the process established by law. Because the Honourable High Court failed to recognise the decisive manner in which the closed case Criminal Report No. 0059 of 2018 has been reopened by the Mumbai police for the sole purpose of misusing power, concocting facts and forcefully arresting the Petitioner in a prima facie act of revenge for his news coverage which questioned those in power in the State of Maharashtra. Because the Honourable High Court failed to appreciate that the Petitioner is a reputed member of society and there is absolutely no chance of his absconding from justice had bail been granted; the Petitioner had cooperated with the police during the investigation stage and would have done the same had the police given a notice regarding reopening of the case. Because the Honourable Bombay High Court, by its order dated 9 November 2020, failed to grant bail to the Petitioner in exercise of its extraordinary powers under Article 226 of the Constitution of India as held by this Court in Girish Kumar Surneja v. Central Bureau of Investigation (2017) 14 SCC 809 and Kartar Singh v. State of Punjab (1994) 3 SCC 569. Because the Petitioner could not have been arrested for the offences alleged in FIR No. 59 of 2018 without any judicial order setting aside the Learned Chief Judicial Magistrate, Raigad, Alibaug's order dated 16 April 2019 by which the closure report was accepted, or in the absence of any order directing reinvestigation or further investigation. Because the Petitioner could not have been arrested in connection with FIR No. 59 of 2018 without any prior summons or notice from the Mumbai police under the relevant provisions of law, especially when the investigation into FIR No. 59 of 2018 was closed by the summary report accepted by the Learned Chief Judicial Magistrate. Because the Honourable Bombay High Court in its order dated 9 November 2020 erred in law by omitting to consider the assembly discussions on the floor of the Maharashtra Legislative Assembly on 8 September 2020 wherein certain cabinet ministers had called for the arrest of the Petitioner, demonstrating that the arrest was malafide and politically motivated. Because the Honourable Bombay High Court in its order dated 9 November 2020 failed to appreciate that the Petitioner's detention is unjustified as there is nothing on record to suggest that the Petitioner had provoked, incited or encouraged the deceased, Mr. Anvay Naik, to commit suicide, nor is there anything to show that the Petitioner had committed any act proximate to the demise of the deceased. Because the Honourable Bombay High Court failed to appreciate that the Petitioner's arrest and continued detention in connection with FIR No. 59 of 2018 is illegal and contrary to law as a closure summary report had been filed and accepted by the Learned Chief Judicial Magistrate, Raigad, Alibaug by an order dated 16 April 2019. Because the Honourable Bombay High Court failed to appreciate that the Petitioner could not have been deprived of his liberty for the offences alleged in FIR No. 59 of 2018 without any judicial order setting aside the Learned Chief Judicial Magistrate's order dated 16 April 2019 or in the absence of any judicial order directing reinvestigation. Because the Honourable Bombay High Court failed to appreciate that Section 34 of the Indian Penal Code has been wrongly applied in FIR No. 59 of 2018 as there is nothing on record to suggest that the Petitioner knew the co‑accused or had any interaction with them, let alone a common intention to abet the suicide of the deceased, Mr. Anvay Naik. Because the Honourable Bombay High Court omitted to consider that the closure report filed by the police before the Learned Chief Judicial Magistrate, Raigad, Alibaug, clearly mentions that the accused individuals, including the Petitioner, are businessmen in different areas with no relation between them, and therefore the registration of FIR under Section 34 of the Indian Penal Code was and is bad in law. Because the closure report filed by the police clearly recorded that it would be impossible to convince that the accused 1 to 3, including the Petitioner, would have aided and abetted the commission of suicide of the deceased; once the Mumbai police concluded that there was no evidence to suggest that the Petitioner had abetted the suicide and failed to produce any compelling evidence to reopen the investigation, the Petitioner ought to have been granted bail. Because the Honourable Bombay High Court, by its orders dated 9 November 2020 and 7 November 2020, failed to take notice of the well‑established principles of law that the High Court can grant bail in the exercise of its extraordinary powers under Article 226 of the Constitution of India as held by this Court in Girish Kumar Surneja v. Central Bureau of Investigation (2017) 14 SCC 809 and Kartar Singh v. State of Punjab (1994) 3 SCC 569. Because the Honourable Bombay High Court ought to have exercised its extraordinary powers under Article 226 of the Constitution of India, 1950 by granting ad‑interim bail to the Petitioner as the present case is a glaring case of deprivation of liberty and excessive police action. Because the Honourable Bombay High Court omitted to consider that a summary closure report was filed by the police before the magistrate and accepted on 16 April 2019, and that no party has challenged that order in any superior court nor moved the Learned Magistrate for setting aside or alteration of that order. Because the Honourable Bombay High Court failed to appreciate that the present case is totally different from a case in which a charge‑sheet is filed, where the police have a statutory right to further investigate under Section 173(8) of the Code of Criminal Procedure, whereas in the present case permission of the magistrate is required before the police can further investigate. Because the Honourable Bombay High Court failed to appreciate that the above position has been upheld by this Court in Bikash Rajan Raut v. State (2019) 5 SCC 542 (para 6.3 and para 40.6) and Pathu Ranjan v. State of Tamil Nadu (2019) 4 SCC 771 (para 22) and Vinay Tyagi v. Irshad Alia (2013) 5 SCC 762 (paras 40.6 and 49).
id_602	1	Because the Hon'ble Bombay High Court failed to appreciate that while an A Summary report which is accepted by the Magistrate by a Judicial Order is in force and not altered or set aside, the Police cannot on their own carry out further investigation in the same case under any provision of law much less under Section 173(8) of the Criminal Procedure Code., Because the Hon'ble Bombay High Court failed to appreciate that the investigation so carried out by the police post 15 October 2020 is thus completely illegal and all steps of investigation carried out on the basis of such an investigation including arrest is completely illegal and every second detention pursuant to the arrest made in such a matter is completely violative of the fundamental right of the Petitioner enshrined under Article 21 of the Constitution of India, 1950., Because the Hon'ble Bombay High Court failed to appreciate that once a negative report is submitted by the Police, the Learned Magistrate may (1) accept the report and close the case; or (2) disagree with the report and take cognizance; or (3) he has the power to issue directions for further investigation under Section 156(3) of the Criminal Procedure Code. This is the provision which in fact is the source of the power of the Magistrate as a general rule of law. See Bhagwant Singh vs Commissioner of Police; (1985) 2 Supreme Court Cases 537 Para 4, Gangadhar Janardhan Mhatre vs State of Maharashtra; (2004) 7 Supreme Court Cases 768 Para 9, Vishnu Kumar Tiwari vs State of Uttar Pradesh; (2019) 8 Supreme Court Cases 27 Para 21, Bikash Ranjan Raut v. State; (2019) 5 Supreme Court Cases 542, Vinubhai Haribhai Malaviya vs State; (2019) Supreme Court Online 1346 Para 34., Because the Hon'ble Bombay High Court failed to appreciate that even if the order of closure has been passed without hearing the Respondent No. 5 (informant in First Information Report No. 59 of 2018), if objections are raised before the investigating agency by the Respondent No. 5 then the same is in the nature of a protest petition and it is essential that a further order of a competent court diluting the order of closure which is required to be passed only by a competent Court after the informant approaches the competent court and it cannot be done suo moto by the police. See UPSC vs Papaiah; (1997) 7 Supreme Court Cases 614, Vinubhai Haribhai Malaviya vs State; (2019) Supreme Court Online 1346 Para 34, Hemant Dashmaniya vs CBI (2001) 7 Supreme Court Cases 536., Because the Hon'ble Bombay High Court failed to appreciate that even in respect of a case where a positive report or charge sheet is filed and admittedly Section 173(8) Criminal Procedure Code applies, by virtue of Paragraph 49 of Vinubhai Malaviya (supra), it is mandatory for the police to have the Magistrate's nod (permission) to exercise the power under Section 173(8)., Because the Hon'ble Bombay High Court failed to appreciate that the impugned actions of the police in the present case tantamount to the police which is a limb of the executive, setting aside or altering an order of the Magistrate which is completely illegal and beyond the scope of the powers of the police., Because the Hon'ble Bombay High Court failed to notice that in the present case, the order of the Learned Chief Judicial Magistrate, Raigad, Alibaug, accepting the closure report was deliberately and illegally ignored by the police., Because the Hon'ble Bombay High Court failed to appreciate that unless the A Summary Report is revived by a judicial order which has to be passed by a Court of competent jurisdiction, it continues to be dead and cannot be resurrected or revived by the police suo moto without recourse to a court of law by the informant or victim, as was illegally and wrongfully done in the present case., Because the Hon'ble Bombay High Court failed to appreciate that in consonance with the principle of law that except the High Court and the Supreme Court of India, the subordinate criminal courts and much less the police have no inherent jurisdiction to alter the closure of a judicially accepted A Summary Closure Report., Because the Hon'ble Bombay High Court failed to appreciate that there is no provision by which the police could suo moto carry out further investigation when a case is closed and an order is passed accepting the A Summary report., Because the Hon'ble Bombay High Court failed to appreciate that the authority of the High Court to order stay of investigation is unquestionable and in such cases, the court ought not overlook the most important factor that is the administration of justice., Because the Hon'ble Bombay High Court failed to appreciate that the power to grant stay of investigation can be granted in extraordinary cases and the Court must exercise the power if there is a case of abuse of the process of the law or to promote the ends of justice., Because the Hon'ble Bombay High Court failed to appreciate that in cases where the investigation is completely illegal and the illegality is pointed out at the threshold as has been done in the present case and when such investigation results in an arrest which is contrary to the procedure established by law and amounts to deprivation of personal liberty, such an illegal and wrongful investigation ought to be stayed forthwith. See Asian Resurfacing vs CBI; (2018) 16 Supreme Court Cases 299 Para 35, Imtiyaz Ahmed vs State of Uttar Pradesh; (2012) 2 Supreme Court Cases 688 Para 55., Because the Hon'ble High Court failed to appreciate that the plenary powers of the Hon'ble High Court under Article 226 of the Constitution of India, 1950 and the inherent powers of this Hon'ble Court under Section 482 of the Criminal Procedure Code clearly authorize and empower the Hon'ble High Court to grant interim relief by way of bail, pending the hearing and final disposal of the Writ Petition as a logical sequitur, if it finds substance in the same or else simply adjourning or admitting the matter without interim relief., Because the Hon'ble High Court failed to appreciate that in the present case, it will result in grave prejudice being caused to the Petitioner and will result in the highest form of travesty of justice., Because the Hon'ble Bombay High Court failed to appreciate that this Hon'ble Court has relied on the judgment in a case under the Terrorist and Disruptive Activities Act 1987, where a Constitutional Bench of this Hon'ble Court in the context of that statute which barred any approach to the High Court from an order of the designated Court, by virtue of Section 19 of that Act, yet held that, the jurisdiction of the Hon'ble High Courts to grant bail under Article 226 of the Constitution still remained intact and Paragraphs 359 and 368 of Kartar Singh vs State of Punjab (1994) 3 Supreme Court Cases 569 are quoted with approval in highlighting that even in such cases the power to grant bail in Writ Jurisdiction cannot be denied in rare and appropriate cases. See Girish Kumar Saneja vs CBI; (2017) 14 Supreme Court Cases 809 Para 40, Asian Resurfacing vs CBI; (2018) 16 Supreme Court Cases 299 Para 64, and Kartar Singh vs State of Punjab; (1994) 3 Supreme Court Cases 569 Paragraphs 359 and 368., Because the Petitioner's arrest and illegal detention is in violation of his right to life and personal liberty guaranteed under Article 21 of the Constitution of India, 1950 and his rights to freedom of speech and expression (Petitioner being the Editor-in-Chief of Republic TV and Republic TV Bharat news channels) and right to practice his profession, guaranteed under Article 19(1)(a) and Article 19(1)(g) of the Constitution of India, 1950., Because the Petitioner's arrest is politically motivated, malicious as the Respondent Nos. 1 to 3 harbour malice and ill-will against the Petitioner. Multifarious proceedings have been initiated against the Petitioner, his news channel, Republic TV and Republic Bharat and their employees at the behest of political dispensation in Maharashtra and the Maharashtra police., Because certain cabinet Ministers in Maharashtra had called for the Petitioner's arrest in connection with First Information Report No. 59 of 2018 on the floor of the Maharashtra Legislative Assembly as evident from the discussions on the floor of the house on 8 September 2020 (part of the show-cause notice issued to the Petitioner in the breach of privilege proceedings). This shows the desperation, vendetta and personal animosity of the political dispensation of the Maharashtra government against the Petitioner., Because the Hon'ble Bombay High Court failed to appreciate that the Petitioner had never met Mr. Anvay Naik, who had allegedly committed suicide in connection with certain alleged dues between ARG Outlier Media Private Limited (of which the Petitioner is the Managing Director) and Concorde Designs Private Limited (Anvay Naik's company) for certain works done at the Republic TV studio in Mumbai., Because the Hon'ble Bombay High Court failed to appreciate that there is nothing on record to suggest that the Petitioner aided or abetted the commission of Mr. Anvay Naik's suicide., Because the Hon'ble Bombay High Court failed to consider the well-established principles of law in context of Section 306 of the Indian Penal Code, 1860 holding that there should be clear mens rea to commit the offence under Section 306 of the Indian Penal Code, 1860 and the offence requires the commission of a direct or active act by the accused which should have led the deceased to commit suicide seeing no other option and such act must have been intended to push the victim in committing suicide. None of these ingredients are present in this case. See M. Mohan v. State (2011) 3 Supreme Court Cases 626; S.S. Cheena v. Bijay Kumar Mahajan and Anr. (2010) 12 Supreme Court Cases 190; Amlendu Pal v. State of West Bengal (2010) 1 Supreme Court Cases 707; Gurcharan Singh v. State of Punjab (Criminal Appeal No. 40 of 2011) and Rajesh v. State of Haryana (2019) Supreme Court Online SC 44., Because the Hon'ble High Court failed to appreciate that the Petitioner is a reputed journalist of international repute and impeccable integrity, a reputed member of the society and there is absolutely no chance of his absconding from justice. The Petitioner has fully cooperated with the police. Therefore, there is absolutely no need for continued detention of the Petitioner. The Petitioner may be allowed to urge, alter or amend any ground at the time of hearing of the present petition. It is respectfully submitted that the Petitioner has an excellent prima facie case, for the reasons mentioned in the Grounds. It is submitted that the balance of convenience is also in favor of the Petitioner, and the Petitioner would suffer irreparable harm and injury if the operation of the impugned order is not stayed during the pendency of the present petition. It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to (A) grant Special Leave to Appeal under Article 136 of the Constitution of India against the interim Judgment and Order dated 9 November 2020 passed by the Division Bench of the Bombay High Court of Judicature at Bombay in Criminal Application Stamp No. 4278 of 2020 in Criminal Writ Petition Stamp No. 4132 of 2020; and/or (B) pass such Order(s) as this Hon'ble Court may deem fit and necessary. It is, therefore, respectfully prayed that this Hon'ble Court may graciously be pleased to (A) grant ex-parte stay of the interim Judgment and Order dated 9 November 2020 passed by the Division Bench of the Bombay High Court of Judicature at Bombay in Criminal Application Stamp No. 4278 of 2020 in Criminal Writ Petition Stamp No. 4132 of 2020; and/or (B) pass such Order(s) as this Hon'ble Court may deem fit and necessary.
id_606	0	Between: This petition coming on for hearing this day, Honourable Shri Justice Ravi Malimath, Chief Justice passed the following: The case of the petitioner is that he joined the Madhya Pradesh Judicial Services as a Civil Judge Class II on 25.10.1985. He was promoted to the Higher Judicial Services on 09.06.1997 and was designated as permanent on 03.01.2002. He was appointed to the Junior Administrative Grade on 09.06.2002. On 13.02.2003, a memorandum of charges was served on the petitioner while he was posted as an Additional District and Sessions Judge, Begumganj District Raisen. The respondent No.2 namely the High Court of Madhya Pradesh proposed to hold a departmental enquiry against him under Rule 14 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. The charges against the petitioner related to certain judicial orders passed by him between 21.06.2001 to 12.08.2002 when he was posted as an Additional District and Sessions Judge at Guna. A reply was submitted by the petitioner and an enquiry was conducted. The Enquiring Officer submitted his detailed report to the Disciplinary Authority exonerating the petitioner from all the charges. It was held that the charges were not proved. The matter was placed before the Disciplinary Authority. On 18.11.2005, a show cause notice was issued to the petitioner by the High Court of Madhya Pradesh indicating that the High Court disagrees with the findings of the Enquiring Officer with respect to Charge Nos. 1, 2, 4 and 5. It is also stated in the notice that the findings of the Enquiring Officer on Charge Nos. 1, 2, 4 and 5 are liable to be reversed as he is found guilty of the said charges and consequently as to why he should not be punished for the said charges. A reply was furnished to the said show cause notice. Thereafter, the impugned order was issued to the petitioner compulsorily retiring him from service. Questioning the same, the instant writ petition has been filed., Learned counsel for the petitioner contends that the act of the respondents is erroneous and liable to be interfered with. Although the Enquiring Officer held that the charges have not been proved, the Disciplinary Authority came to the conclusion that the findings recorded on Charge Nos. 1, 2, 4 and 5 have been wrongly considered by the Enquiring Officer and reversed the same based on mere inference drawn by the Disciplinary Authority. In spite of making a request, there was no grant of opportunity of a personal hearing to the writ petitioner. The entire allegations against the petitioner were with reference to certain judicial orders passed by him while he was serving as an Additional District Judge at Guna. They are all judicial matters and could not have been interfered with. Even otherwise the sole consideration were the judicial orders. There is no complaint against the petitioner in his entire career as a Judge of the Madhya Pradesh Judicial Services; therefore, it would appear that the respondents have victimized the petitioner and have wrongly removed him from service., Learned counsel for the respondents dispute the contentions raised by the petitioner. They contend that the Disciplinary Authority was justified in reversing the findings of the Enquiring Officer that the petitioner, being a judicial officer, is expected to maintain the highest degree of honesty and integrity and has failed to do so. The acts of omission and commission by the petitioner have led to doubt as to the reputation of the petitioner. Therefore, such a judicial officer could not have been continued in the services of the Madhya Pradesh State Judicial Services. Consequently, they were justified in passing the impugned order., The charges leveled against the petitioner are as follows: (1) In Bail Application No. 341/2002, the petitioner granted interim bail to a person accused of an offence under Section 49A of the Excise Act, which related to possession of liquor unfit for human consumption, and the mandatory provisions of Section 59A(2) of the Excise Act were overlooked. The interim bail was granted on the ground of illness of the father of the accused, even though no medical certificate was made available to justify the ground mentioned in the application. This was done pursuant to a corrupt motive or for extraneous considerations. (2) The petitioner granted interim bail to a person accused of an offence under Section 49A of the Excise Act in Bail Application No. 205/2002, in which liquor worth Rs. 7 Lakhs had been seized, of which 20 litres were found to be unfit for human consumption, without following the provisions of Section 59A(2) of the Excise Act. It was noted that interim bail was granted on the very day the accused surrendered before the Judicial Magistrate First Class on the ground of ill health of the accused and this was done pursuant to a corrupt or oblique motive or for extraneous considerations. (3) In Bail Application No. 929/2001, the petitioner granted bail to a person accused under Section 376 of the Indian Penal Code, even though two earlier bail applications had been rejected, there was no change in the circumstances of the case and the District and Sessions Judge was also on leave. (4) In S.T. No. 184/2000, pending in the petitioner's court, the accused was a jail inmate. This case related to serious offences such as Section 302 and Section 376 of the Indian Penal Code. The petitioner granted adjournments for close to one year between the date of final arguments and pronouncement of judgment on extremely flimsy grounds and the accused was ultimately acquitted though there was overwhelming circumstantial evidence which was unreasonably discarded, and this was done pursuant to an oblique or corrupt motive or for extraneous considerations showing utter lack of devotion to duty. (5) The above acts of the petitioner are unbecoming of a Judicial Officer and amount to grave misconduct under Rule 3 of the Madhya Pradesh Civil Services (Conduct) Rules, 1965, which is punishable under Rule 10 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966. (6) The petitioner failed to show promptness in hearing final arguments after the closure of evidence in S.T. No. 257/98 and Civil Suits No. 88/98, 89/98, 260/97, 186/97, 266/97 and 54A/2000 and granted frequent adjournments showing lack of devotion to duty and discipline, which is unbecoming of a Judge and amounts to grave misconduct under Rule 3(a) of the Madhya Pradesh Civil Services (Conduct) Rules, 1965, punishable under Rule 10 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966., On an enquiry being conducted, the Enquiring Officer concluded that the charges have not been proved. After receipt of the findings recorded by the Enquiring Officer, the same was placed for consideration before Administrative Committee No. 1. The Registrar (Vigilance) prepared a note with regard to the findings recorded by the Enquiring Officer. Regarding Charge No. 1, it was held that granting of bail in disregard to the mandatory provisions of Section 59A of the Madhya Pradesh Excise Act is sufficient to infer that the order was passed with corrupt motive or extraneous consideration. Regarding Charge No. 2, it was stated that it appears to be only for corrupt motive or for extraneous consideration. Regarding Charge No. 4, it was held that the finding of the Enquiring Officer that no fault can be attributed to the petitioner for adjourning the case cannot be accepted. Regarding Charge No. 5, it was held that the view of the Enquiring Officer is that it is only to be considered as leniency on the part of the delinquent officer with regard to grant of adjournments, but this leniency has exceeded the limit, which shows lack of devotion of the delinquent officer towards his duty. The matter was placed for consideration before Administrative Committee No. 1, which accepted the report of the Vigilance Registrar; the same was further accepted by the Full Court of the High Court of Madhya Pradesh. On considering the opinion of the Disciplinary Authority, we are unable to find reason with the same., So far as the findings on Charge Nos. 1 and 2 are concerned, they have been drawn on the basis of an inference. After narrating the manner in which the bail was granted, the Disciplinary Authority came to the view that it can be inferred that bail has been granted in disregard to the mandatory provision of Section 59 of the Madhya Pradesh Excise Act and therefore the same has been passed with corrupt motive or extraneous consideration. We fail to appreciate the reasoning of the Disciplinary Authority. Even if according to the Disciplinary Authority the grant of bail is in violation of the mandatory provisions, the same may reflect upon the competency of the judge in understanding the law. It cannot lead to a conclusion that he is either corrupt or the order has been passed for extraneous consideration. It is trite to mention that there are many judicial orders that may be considered to be right or may be considered to be wrong. It is not necessary that in every case where bail is granted the same has to always be looked into with suspicious eyes that it is granted with corrupt motive or for an extraneous consideration. We do not find any logic or reason, let alone an explanation, for arriving at such a conclusion. There may be a possibility that the concerned Judge has either misread the evidence or has applied it wrongly; at most it only reflects upon his judicial competency and not that he is either corrupt or the order has been passed for extraneous consideration. Regarding Charge Nos. 4 and 5, they pertain to grant of adjournments. The Enquiring Officer came to the conclusion that the petitioner may have been lenient in the grant of adjournments. We fail to understand how the Disciplinary Authority comes to a conclusion that even the leniency shown by the Judge to the Bar requires to be ascertained in a microscopic examination. The Disciplinary Authority notes that on few dates the case was adjourned on the ground of sickness of the advocate of the accused but adjourning the case for eleven months was not justified. Whether the concerned Judge was justified in granting adjournments or not cannot be ascertained by merely looking at the order sheets and the number of times the case has been adjourned. Many factual situations happen in open court which cannot always be reflected in the order sheets. Many submissions, requests and events that happen in open court are best left between the discussions of the Bar and the Bench. It is not necessary that each and every word that an advocate states in open court requires to be transcribed into the order sheets. The Judge holding court is not a stenographer to take down the dictation of each and every advocate. Only that portion of the submissions made by the concerned advocate that is relevant for the case or for the orders of that date alone requires to be mentioned in the order sheet. The Disciplinary Authority could have recorded such a reason of finding fault with the concerned Judge for being lenient to the Bar. One really does not know what happens when an adjournment is sought for. It is not proper to conclude that only because an adjournment has been granted the integrity of a Judge has to be doubted. It is a matter of fact that whenever a matter is listed for arguments, the learned counsels always seek time to either prepare themselves or for other reasons. An adjournment may be granted; therefore, we do not think that this could be held against the concerned Judge., So far as the findings recorded by the Enquiring Officer on all the aforesaid charges are concerned, they could also be seen as relatable to each and every Judge in the State. Bail orders are passed by the concerned Judges; a number of adjournments are given by the Judges in various cases but only because bail has been granted does not mean that it has been granted for corrupt reasons. Only because adjournment is granted cannot be said that it lacks devotion by the officer. The lack of devotion stated by the Disciplinary Authority, if accepted on face value, would infer that no Judge should grant any adjournment to any lawyer in any case at any point of time. Unfortunately, the stakeholder would know that this cannot be done. It is not necessary that the learned advocates seek adjournment only because they do not intend to argue the matter. On many occasions, there are very valid grounds for which an advocate would seek an adjournment; only because the Judge grants it cannot be said that he lacks devotion. Therefore, even on a plain reading of the inferences drawn by the Disciplinary Authority, we are unable to accept the reasons adopted therein. The reversal of the finding of the Enquiring Officer is purely based on surmises and conjunctures. The note itself indicates that it is only on an inference that a conclusion of corruption has been made. It is needless for us to state that whenever a man is being punished with such serious consequences, the same cannot be a result of an inference; it has to be based on some material against the concerned officer. In the instant case, there is absolutely no material to infer the same. The Enquiring Officer, having conducted the enquiry and after recording the evidence, held that the charges have not been proved. The reasons for reversing the finding of the Enquiring Officer are unsustainable., Notwithstanding the same, we asked the learned counsel appearing for respondent No.2 with regard to the service record of the writ petitioner. We have also examined the vigilance report as well as the confidential record of the concerned officer. It was placed for our consideration. We have considered the Annual Confidential Reports (ACRs) of the writ petitioner since inception. We do not find any noting in any of the ACRs for any of the years from 1986 to 2005 with regard to his integrity. We have also considered the confidential record of the writ petitioner. The same does not indicate even a suggestion with regard to his integrity in the performance of his duties. The confidential record would indicate the assessment of the Portfolio Judges as well as Honourable the Chief Justice with regard to the services of the Judges. On most occasions, the remark about his integrity and reputation has been that he enjoys a very good reputation, that he is a good worker and that he is prompt in performance of his duties. Almost every year, it has been noted that his general reputation is good. We are unable to find any noting by any authority with regard to his integrity. In fact some of the comments made in the ACRs are as follows: He takes keen interest in learning the work; He enjoys the good reputation; He is a judicial officer with capacity and sincerity; He enjoys very good reputation; He is a good and sincere worker; He is a soft spoken officer; He has worked hard to give good disposals; No complaint received regarding integrity; His judgments are good. Therefore, the examination of the entire ACRs as well as his Vigilance File does not indicate that he was an officer of any doubtful integrity; on the contrary, there were many remarks that he is a good officer., It is only for the concerned period of time namely between 21.06.2001 to 12.08.2002 when he was Additional District Judge at Guna that certain judicial orders of his have come for scrutiny; therefore, we do not find that there was any valid reason for the Disciplinary Authority to reverse the finding of the Enquiring Officer. There is no material in his entire ACRs and Vigilance report that can be held against him. For all these reasons, we are of the view that the Disciplinary Authority committed a gross error reversing the findings of the Enquiry Officer; therefore, even the consequential order of compulsory retirement from service, in our considered view, becomes unsustainable. For all the aforesaid reasons, the writ petition is allowed with the following directions: The order passed by the Disciplinary Authority dated 18.11.2005 (Annexure P/4) and the impugned order dated 12.05.2006 (Annexure P/10) compulsorily retiring the petitioner from service are hereby set aside; The petitioner shall be entitled to twenty‑five percent of the arrears of pay from the date of dismissal, namely compulsory retirement effective from 12.05.2006 up to the age of superannuation; The respondent shall rework his salary, his entitlements and all his retirement benefits accordingly; He is entitled for re‑fixation of his pay, pension and all related issues as a consequence of this order; The same shall be paid to the petitioner within a period of four months from the date of receipt of a copy of this order.
id_607	0	Criminal Appellate Jurisdiction – Appellate side. Probhat Purkait @ Provat (Appellant). The State of West Bengal for the Appellant: Mr. Malay Bhattacharyya, Advocate; Mr. Subhrajyoti Ghosh, Advocate; Mr. Dibakar Sardar, Advocate. For the State: Mr. P. K. Datta, Advocate; Mr. Ashok Das, Advocate. For the victim girl: Mr. Shibaji Kumar Das, Advocate; Mr. Soumyajit Das Mahapatra, Advocate; Ms. Rupsa Sreemani, Advocate; Ms. Madhuraj Sinha, Advocate. Heard on 17 July 2023 and 26 July 2023. Judgment on 18 October 2023., This appeal arises out of the judgment dated 19 September 2022 and the order of sentence dated 20 September 2022 passed by the Additional Sessions Judge cum Special Judge (under the Protection of Children from Sexual Offences Act), Baruipur, South 24 Parganas in Special Sessions Trial No. 03 of 2022 arising out of Special (Criminal Investigation Section) No. 97 of 2018. The appellant has been convicted under Sections 363 and 366 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act. The sentence awarded by the learned Trial Court is rigorous imprisonment for 20 years and a fine of Rs.10,000, with a default provision of further rigorous imprisonment for 2 months under Section 6 of the Protection of Children from Sexual Offences Act. Separate sentences have been awarded under Sections 363 and 366 of the Indian Penal Code with an order for concurrent running of sentences., Before proceeding to discuss the prosecution case and the evidence, we note that a rustic lady in a rumpled saree and unkempt hair, appearing older than her age, was standing in a corner of the High Court of Calcutta with a baby in her arms. She was present from the start of the court at 10:30 A.M. and remained there beyond court hours for two days. On the third day we asked the learned State Counsel to call her before us. She said she had received a notice from the court, did not know its contents and had no means to engage a lawyer. On 17 July 2023 we asked Mr. Shibaji Kumar Das, present in the court, to assist her. After reading the notice, Mr. Das told us that she was a victim of an offence under the Protection of Children from Sexual Offences Act. We engaged Mr. Das as Amicus Curiae and directed the State Counsel Ms. Z. N. Khan to be present the next day. The case was adjourned to 24 July 2023, but listed on 26 July 2023 with the List of Cases Registered as the case had already been admitted by order dated 19 January 2023. On that day it was submitted that the victim, of her own volition, had married the accused (appellant) in 2019 and had given birth to a female child. The victim stated that she had an affair with the accused, married him voluntarily, and that the child was born in 2021. She further stated that her husband is in jail since his arrest, her mother‑in‑law suffers from cancer, her parents have cut off all ties after her marriage, and she finds it difficult to maintain the family consisting of her ailing mother‑in‑law and the small child by earning herself. Considering the victim’s destitution, we granted bail to the appellant and adjourned the appeal for final hearing to 23 August 2023. The victim further stated that she and her husband belong to a rural area and do not know that their relationship and marriage constitute an offence., The prosecution case, as found from the First Information Report lodged by the victim’s mother (Petitioner Witness‑2), is that on the evening of 20 May 2018 the victim was found missing from the house and had left without informing anyone. The mother learned that the accused Probhat Purkait (appellant), with the help of her sister Anima Halder and Asha Lata Halder (Anima’s mother‑in‑law), had taken her minor daughter along with her Kanyashri award by enticing her for malicious purpose. The First Information Report was lodged on 29 May 2018. The investigation was taken up by three Investigating Officers (Petitioner Witness‑5, Petitioner Witness‑6 and Petitioner Witness‑7) successively, and ultimately Petitioner Witness‑7 submitted a charge‑sheet against the appellant, Asha Lata Halder and Anima Halder for offences under Sections 363, 365, 366, 376(3) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act. The learned Trial Court framed charges against the appellant only for offences under Sections 363, 366, 376(3), 376(2)(n) of the Indian Penal Code, Section 6 of the Protection of Children from Sexual Offences Act and Section 9 of the Prohibition of Child Marriage Act., The defence plea is an almost admission of the entire incident regarding marriage and the birth of the female child, though there is denial about kidnapping., The learned Trial Court found the appellant guilty under Sections 363, 366, 376(3), 376(2)(n) of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offences Act. However, in view of the record of sentence against the appellant under Section 6 of the Protection of Children from Sexual Offences Act, the learned Trial Court did not record any sentence under Sections 376(3) and 376(2)(n) of the Indian Penal Code, noting that the punishment under Section 6 of the Protection of Children from Sexual Offences Act is greater than that provided under the two sections of the Indian Penal Code. We do not comment on this aspect of the order of sentence recorded by the learned Trial Court., The basis of conviction of the appellant is the deposition of the victim examined as Petitioner Witness‑1, her mother (Petitioner Witness‑2), Petitioner Witness‑3, a Medical Officer who found a recent tear in the hymen of the victim, and Petitioner Witness‑4, a Medical Officer who examined the accused and found that he is not incapable of sexual intercourse. The learned Trial Court, after scrutiny of evidence and submissions advanced by the prosecution and defence, arrived at the aforesaid finding and recorded the sentence as discussed supra., In the course of hearing before us, counsel for the appellant submitted that the appellant, being a rustic person, had no knowledge that by marrying the victim who voluntarily came to his house he had committed an offence, and that there is no allegation that the appellant exploited the immature emotion of the victim; therefore he should be acquitted of the charge. Counsel for the State submitted that ignorance of law is no excuse and the appellant having committed a serious offence against a minor and society, the judgment under appeal should be affirmed. Mr. Das, counsel for the victim, supported the appellant’s counsel’s submission and beseeched us to save the victim from destitution and the family from penury., The evidence of the witnesses examined by the prosecution shows that the victim (Petitioner Witness‑1) specifically testified that she loved the appellant and married him in 2019, and that a daughter was born who is now about ten months old. She testified that at the relevant time of occurrence on 20 May 2018 she was about fourteen years old, proved her birth certificate by Exhibit‑1, and testified that with the consent of her mother she underwent medical examination. In cross‑examination she testified that she left her home of her own will and met the appellant, that her parents did not approve her marriage, and that she liked to stay in her husband’s house. The mother of the victim (Petitioner Witness‑2) proved the First Information Report by Exhibit‑3 and her signature, and the seizure list of the birth certificate of the victim. She testified that her daughter returned to her house from Narendrapur Sanlaap Home, stayed in her house for about one year and then again went to the house of the appellant. The Medical Officer who examined the victim on 1 June 2018 found a recent tear in the hymen of the victim., From the aforesaid evidence, especially the birth of a child out of the alleged wedlock of the appellant with the victim, it is clear that there has been a sexual relationship between the two throughout till the arrest of the appellant. The record shows that the date of birth of the daughter of the victim is 16 May 2021, and at that time the victim was about seventeen years, two months and twenty‑seven days old, based on the age recorded in the birth certificate (Exhibit‑1)., Several judgments were cited by counsel for both parties before the learned Trial Court relating to quashing of First Information Reports in such offences, but the learned Trial Court rightly held that the Trial Court, having no inherent power under Section 482 of the Code of Criminal Procedure, cannot take a view beyond the evidence on record. Before us, many judgments were placed by counsel for both sides relating principally to quashing of First Information Reports in cases of romantic relationships between two adolescents or an adolescent girl with a person who has attained majority. From such judgments we find that the Honorable Meghalaya High Court, the Honorable Bombay High Court, the Honorable Madhya Pradesh High Court and this High Court have taken a liberal view with respect to quashing of First Information Reports in connection with offences under Section 6 of the Protection of Children from Sexual Offences Act, taking into consideration the peculiar facts in the reported cases. However, the Honorable Delhi High Court and the Honorable Kerala High Court have taken a strict view in such matters., The policy behind the enactment of the Protection of Children from Sexual Offences Act, 2012 provides a comprehensive framework with substantive and procedural provisions to address sexual offences against children. It defines a child as a person below the age of eighteen years, gender neutral, and emphasises all forms of sexual acts with a child. The original draft of the Bill recognised the possibility of consensual sexual activity involving adolescents above sixteen years and the grounds on which such consent would be vitiated. Following recommendations of the Parliamentary Standing Committee to remove such exception, the Bill was modified and passed without any provision for adolescent sexuality. We shall discuss this aspect in more detail in the narrative that follows., It has been nearly eleven years since the Protection of Children from Sexual Offences Act came into force and ground‑level reports as well as data (Population Council, accessed 24 March 2022) and experience show that a vast number of adolescents are sexually active and there are a significant number of consensual sexual relations among adolescents and between older adolescents and adults. As per the National Family Health Survey‑5 (2019‑21), for instance, thirty‑nine percent of women had sex for the first time before they attained eighteen years. The legislation, however, does not consider the possibility of consent to non‑exploitative sexual activities by adolescents. These cases attract statutory rape charges under Sections 376(3) and 376(2)(n) of the Indian Penal Code and other provisions, especially when adolescent girls elope with their partners or become pregnant. A 2020 report states that forty‑six point seven percent of all cases filed under penetrative and aggravated penetrative sexual assault under the Protection of Children from Sexual Offences Act involved offenders who were friends, online friends, Facebook friends, live‑in partners or acted on the pretext of marriage., We do not want to go very much empirical on these aspects though much more statistics are available to show that non‑exploitative sexual relationships without any intent are on the rise among adolescents in our country. It may be because of climatic change, change in food habits, earlier onset of puberty, peer pressure, influence of social media, free availability of pornographic material and free mixing with friends of the opposite sex in a taboo‑free atmosphere. This being a sociological study by experts, we do not comment on these aspects., Since the nineteenth century, age of consent laws have shifted with developments in women’s and child rights discourse, as well as multiple socio‑cultural and political factors. Legislative provisions reflected a colonial and patriarchal understanding of females as property of their father or husband. In India, the age of consent was blurred with the age of marriage, and social reformers often sought to increase the age of consent with the explicit aim of raising the age of marriage. In 1860, the Indian Penal Code stipulated ten years as the age of consent for both married and unmarried girls. The death of Phulmoni Dossee, a ten‑year‑old girl in Calcutta in 1889, after her much older husband tried to consummate the marriage, triggered the raising of the age of consent for sexual intercourse to twelve years to protect female children from premature cohabitation. In 1925 the age of consent was further raised to fourteen years for girls and thirteen years for rape within marriage. In 1949 it was raised to sixteen years and to fifteen years for marital rape. For sixty‑three years the age of consent for sexual intercourse stood at sixteen years, until the Protection of Children from Sexual Offences Act, 2012 raised it to eighteen years. The Act is gender neutral and for the first time introduced an age of consent for children of all genders., The Protection of Children from Sexual Offences Bill, 2011, as introduced in the Rajya Sabha, recognised the possibility of consensual sexual activity with a child between sixteen and eighteen years and specified grounds such as use of force, violence, threats, intoxicants, drugs, coercion, fraud, etc., in the presence of which consent would be vitiated. The Ministry of Women and Child Development justified the exception on the ground that the law cannot be blind to social realities and criminalisation of adolescents for such acts would be detrimental. Following concerns raised by the Parliamentary Standing Committee that the exception would shift focus onto the conduct of the victim during trial, the exception was withdrawn when the Bill was placed before Parliament., In 2013, despite the recommendations of the Justice Verma Committee that the age of consent be reduced to sixteen years, Section 375 of the Indian Penal Code was amended and the age of consent was increased to eighteen years. Where two under‑age minors are involved in a sexual relationship, the Juvenile Justice (Care and Protection of Children) Act, 2015 is applicable, with the possibility of a child above sixteen years being tried as an adult for heinous offences., In 2017, the marital rape exception in the Indian Penal Code, which provided that sexual intercourse by a man with his wife not below fifteen years would not constitute rape, was read down by the Supreme Court of India as unconstitutional and violative of the rights of children and the Protection of Children from Sexual Offences Act (AIR 2017 SC 494). Thus, although a child marriage is valid under personal law and the Prohibition of Child Marriage Act, 2006, except in certain circumstances, sex within such a marriage constitutes rape or aggravated penetrative sexual assault. In 2019, following gruesome incidents of sexual violence against children, the minimum punishment for penetrative sexual offences under the Protection of Children from Sexual Offences Act was enhanced and the death penalty was introduced for aggravated penetrative sexual assault., The lack of recognition of consensual sexual behaviour of older adolescents has resulted in their automatic criminalisation, as well as a conflation of consensual acts with non‑consensual acts. While all children and adolescents are entitled to protection from sexual exploitation and violence, the approach adopted under the Protection of Children from Sexual Offences Act renders adolescents vulnerable to criminal prosecutions for normative sexual behaviour., Sexual behaviour in adolescents, particularly from the onset of puberty, is widely established as natural, normative, and an integral part of adolescent development and their transition into adulthood. All persons, including children, are entitled to the right to dignity and privacy, and these rights also apply in the context of their personal relationships (Section 3(xi) of the Juvenile Justice Act, 2015; Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; Navtej Singh Johar v. Union of India, (2018) 10 SCC 1). By ignoring adolescent development, social realities, and diverse tribal and cultural practices which recognise adolescent sexuality, the law disproportionately affects adolescents in consensual and non‑exploitative relationships and renders them vulnerable to criminal prosecution., By equating consensual and non‑exploitative sexual acts with rape and aggravated penetrative sexual assault, the law undermines the bodily integrity and dignity of adolescents. In Anoop v. State of Kerala (Bail Application No. 3273 of 2022 decided by the Kerala High Court on 8 June 2022), the Kerala High Court remarked that the statute does not distinguish between the conservative concept of rape and sexual interactions arising out of pure affection and biological changes, treating all intrusions on bodily autonomy as rape for certain age groups., The ensuing criminal investigation and trial, and a simultaneous inquiry under the child protection system, have a stigmatic and disruptive impact on adolescents’ development, education, employment, self‑esteem, social reputation and family life. Long‑term damaging consequences of a conviction for statutory rape include incarceration and inclusion in the Sex Offenders Registry (Press Trust of India, National Registry Of Sex Offenders Adds 5 Lakh Names To Database, 24 February 2019)., The Constitutional Court of South Africa in Teddy Bear Clinic for Abused Children & Anr. v. Minister of Justice and Constitutional Development & Anr. [(CCT 12/13) (2013) ZACC 35 decided on 3 October 2013] held that legal provisions criminalising consensual sex amongst adolescents offended their dignity, even if rarely enforced. It concluded that if one’s consensual sexual choices are not respected by society but are criminalised, one’s innate sense of self‑worth will be diminished, and the existence of a statutory provision that punishes forms of sexual expression that are developmentally normal degrades adolescents., While the ostensible objective may be to protect all children below eighteen years from sexual exploitation, the law’s unintended effect has been the deprivation of liberty of young people in consensual relationships. Although convictions in romantic cases are an exception, the accused men and boys are predominantly charged with non‑bailable offences such as rape and penetrative sexual assault (89.2 % of accused in romantic cases were charged with a penetrative offence under Section 4 or 6 of the Protection of Children from Sexual Offences Act, or under Section 376 of the Indian Penal Code). As per an analysis based on judgments of three states, in 15.2 % of romantic cases the accused remained in judicial custody till the end of the trial. In Rama @ Bande Rama v. State (Criminal Petition 6214 of 2022 decided by the Karnataka High Court on 2 August 2022), the twenty‑year‑old accused in a romantic case was in judicial custody for eighteen months. While quashing the case, the Karnataka High Court observed that the criminal process itself inflicted pain on the parties and, despite an acquittal, the sword of crime would have torn the soul of the accused. In stray cases, a strict view that the consent of a minor is irrelevant, coupled with the lack of sentencing discretion, has resulted in the imposition of high mandatory minimum sentences such as ten years for engaging in consensual sex (State of Gujarat v. Ashokbhai, 2018 GLH 792). With the amendment in 2019, such cases attract a higher minimum sentence of twenty years if it is a case of repeated sex or if it has resulted in pregnancy., The law also undermines the identity of adolescent girls by unidimensionally casting them as victims, rendering them voiceless and without agency to enter into relationships or choose their partners. Adolescent boys, on the other hand, are discriminatorily treated as children in conflict with the law (ICCW, Children apprehended under the Protection of Children from Sexual Offences Act for Elopement in Tamil Nadu (2017), UNICEF, p.40) and can even be tried as adults. The liberty of adolescent victim‑girls is compromised as they are institutionalised in Children’s Homes when they refuse to return to their parents and insist on being with their partner. Studies reveal that they are shamed, humiliated and stigmatised for their acts, alienated from their partners and society, and at times not released even after they turn eighteen. Such institutionalisation harms their physical and mental health, overall development, and they have little or no recourse to challenge or seek review of such decisions. Administrative confusion about whether the girls should be released by the court or Child Welfare Committees prolongs their detention even after many have attained majority. Girls who are pregnant or have given birth to a child are compelled to reside in a Children’s Home where access to sexual and reproductive health services and familial care is limited., The Protection of Children from Sexual Offences Act lumps all persons below eighteen years together without consideration for their developing sexuality, evolving capacity, and the impact of such criminalisation on their best interests. It fails to strike an effective balance between protecting adolescents against sexual abuse and recognising their normative sexual behaviour. The result is that a law aimed at addressing child sexual abuse is instead being used against adolescents, especially to curtail the sexual expressions of adolescent girls to safeguard family honour. An analysis revealed that eighty‑point‑two percent of the complainants in romantic cases were parents and relatives of adolescent girls who registered a case after she eloped or her pregnancy was discovered. Pointing to the possibility of further misuse of the Act, it showed that in twenty‑one point‑eight percent of romantic cases, the girls disputed the claim by their families that they were minors., While all children are entitled to protection from sexual violence, such protection should enable young people to extend their boundaries, exercise choices and engage in necessary risk‑taking, while not exposing them to inappropriate responsibility, harm and danger (Gerison Lansdown, The Evolving Capacities of the Child, UNICEF 2005, p.32). The Protection of Children from Sexual Offences Act, however, reflects a protectionist approach that pushes adolescents out of the safety net and into the criminal justice system. It erodes their best interests, reflects scant regard for their evolving autonomy, and results in their victimisation within the criminal justice system under the garb of protection., A study made by Enfold Proactive Health Trust with support from UNICEF‑India, June 2022, made it clear that though protection of children within an age fold is a laudable approach by the Government, criminalisation of adolescent consensual sex nips a budding talent in the bud, and if the adolescent boy accused of the offence is the sole breadwinner, such criminalisation tends to ruin the economy of the family, as in the present case., Based on the studies cited, we conclude that the balance between protection and evolving autonomy is central to ensure the best interests of adolescents, but the current legal framework fails to do so and unjustly conflates normative consensual acts among adolescents with sexual abuse. Instead of protecting adolescents from abuse, the law exposes those in factually consensual and non‑exploitative relationships to the risk of criminal prosecution and compromises the child protection mandate. A legal amendment is therefore necessary to decriminalise consensual sexual acts involving adolescents above sixteen years, while also ensuring that all children below eighteen years are protected from sexual offences under the Protection of Children from Sexual Offences Act. All children and adolescents need to be provided rights‑based comprehensive sexual education. Legal and policy reforms are also needed to ensure confidential and barrier‑free access of adolescents to sexual and reproductive health services. Comprehensive sexuality and life‑skill education should be integrated into the school curriculum to safeguard the rights and interests of adolescents and to advance their health, dignity and overall developmental potential.
id_607	1	The discussion so far stresses a rights‑based approach as far as adolescents are concerned. We may sound narrow in our view, but the practicality of the facts is that a rights‑based approach as a panacea for all the problems that arise is not the solution, and in our view, not the just and correct approach. For conferring the rights suggested in the aforesaid discussion on the captioned group i.e. adolescents between the age fold of 16 to 18 in romantic relationship, some tests are to be satisfied first. Those are: whether conferment of suggested rights on the captioned group is in their best interest; whether the captioned group has the discretion and maturity to use those rights for their best interest; whether such rights at such age are conducive for overall development of their personality or are destructive of their self‑development; who are the persons on whom such rights are to be conferred, are they disciplined adolescents or a wayward lot who have no control on their trivial urge to have sex; whether conferment of such rights on the captioned group is in the best interest of society., To find answers to these tests, opinions of some individuals, rights activists, or view of so‑called liberals are not at all sufficient. We need to have an empirical study of: psychology of the captioned group especially what drives them to urgently satisfy their sexual urge and psychological trauma faced by parties of either sex in the event of break‑up; societal aspects involved in the matter; impact of mutual action of two consenting adolescents of opposite sex on their right to integrity of the body, on their psychology and on overall development of their personality; whether the captioned relationship has any commitment or direction and whether proposed marriage before or after institution of case is an escape route. Such empirical study besides the captioned group should include parents of the captioned group, subject experts, social workers working in the field and so on. It should also be kept in mind that such study should take into consideration the diversities and peculiarities of our society and should not be studied on the basis of realities elsewhere though the glass of foreign jurisprudence., Fundamental rights in the Constitution and various other rights in different statutes have been given to individuals for a balance in society, to check arbitrariness of the Government and development of the best self of an individual. If we go deep into our old texts, we find that rights are not conferred but they are earned by action of an individual. If we look at Bentham’s theory, it is found that every right has a corresponding duty or obligation. By performing the obligation, one earns the right. It is somewhat similar to the old oriental philosophy: do your duty and earn your right., The principal androgenic steroid is testosterone, which is secreted primarily from the testes in men and ovaries in women and in small amounts from the adrenal glands of both sexes. The hypothalamus and pituitary gland control the amount of testosterone, which is primarily responsible for sex urge and libido in men. Its existence is there in the body, so when the respective gland becomes active by stimulation, sexual urge is aroused. Activation of the respective gland is not automatic; it needs stimulation by sights, hearing, reading erotic materials and conversation with the opposite sex. Thus sexual urge is created by our own action. Sex in adolescents is normal but sexual urge or arousal of such urge is dependent on some action by the individual, may be a man or woman. Therefore, sexual urge is not at all normal and normative. If we stop some actions that arouse sexual urge, as advocated in our discussion supra, the arousal ceases to be normal., Ask any parent of an adolescent, boy or girl, and you shall get the answer how difficult it is to give a right upbringing to him or her in view of free flow of negative materials from the web and social media, which hamper their thinking process and living. We therefore propose to take a duty/obligation‑based approach to the issue in hand., It is the duty/obligation of every female adolescent to: protect her right to integrity of her body; protect her dignity and self‑worth; strive for overall development of herself transcending gender barriers; control sexual urges, as in the eyes of society she is the loser when she gives in to enjoy sexual pleasure of hardly two minutes; protect her right to autonomy of her body and her privacy. It is the duty of a male adolescent to respect the aforesaid duties of a young girl or woman, to train his mind to respect a woman, her self‑worth, her dignity and privacy, and her right to autonomy of her body., For the aforesaid purpose charity should begin at home and the parents should be the first teachers. Parental guidance and education to children, especially girls, to recognise bad touch, bad signs, bad advances and bad company is necessary with emphasis on their health and reproductive system to avoid sex at an age not sanctioned by law. Similarly, parental guidance for boys should include how to respect a woman, how to keep her dignity, how to protect the integrity of a woman’s body, and how to befriend a woman without being aroused by sexual urge even if there are advances from the other side until he becomes capable to maintain a family. The family should maintain a conducive atmosphere so that no child grows up believing that it is OK to violate women. We should never think that only a girl is subject to abuse, because there is no escape for a boy even nowadays. That aspect having been recognised, the Protection of Children from Sexual Offences Act is made gender neutral., Besides parental guidance, requisite sex education with emphasis on the aforesaid aspects and reproductive health and hygiene should be a part of the curriculum of every school. The school curriculum should also include a fundamental study of law that criminalises adolescent action and the severity of the punishment prescribed. In rural areas, services of Anganwadi workers and other ground‑level workers should be utilised to make people aware about the rudimentary part of the Protection of Children from Sexual Offences Act and the severity of the punishment prescribed. There should be an overall endeavour by the Government, Legal Services authorities, rights activists and social workers to educate the people on these aspects including the Protection of Children from Sexual Offences Act., We do not want our adolescents to do anything that shall push them from dark to darker side of life. It is normal for each adolescent to seek the company of the opposite sex but it is not normal for them to engage in sex devoid of any commitment and dedication. We want them to spread their wings high with a view to realise their best selves. Sex shall come automatically to them when they become self‑reliant, economically independent and the person they dreamt of becoming. Along with sex at such a stage shall come love with commitment and dedication towards each other as they shall have the discretion and maturity to understand each other, adjust with each other and forgive each other. We beseech our adolescents to follow the salutary legal principle of Mahabharata: Dharmo Rakshyati Rakshita (one who protects law is protected by law) and proceed in their path of self‑development without being influenced by the bashful urge of urgent sex., We therefore do not propose to tinker with the age of consent in the Protection of Children from Sexual Offences Act. We leave it to the Law Commission of India and the National Commission for Protection of Child Rights to deliberate on this aspect and give their suggestions to the appropriate Government., So far as the criminalisation of romantic relationship between two adolescents of opposite sex is concerned, it should be left to the wisdom of the judiciary. Each judiciary in the world has the nicety of pluralism. Each individual judge has his or her own opinion and unique style of addressing an issue. In India we have an integrated judicial system with the subordinate judiciary at the base and the Supreme Court of India at the top. Each member of the judiciary at every level in India is learned enough to recognise the field where interference is necessary to do complete justice. No court has any power beyond the jurisdiction vested in it. Each judge at every level in our judiciary is learned enough to recognise his or her jurisdiction and limitation so far as exercise of such jurisdiction requires. There are checks from bottom to top in every level to correct error committed by the lower level, up to the Supreme Court of India. We are, therefore, of the view that the grey area of adolescent consensual sex, about which much commotion is made, should be left to the discretion and wisdom of the judiciary. It is also found from decisions of different High Courts that such matters have been dealt with in proper perspective taking into consideration the peculiarity of the case placed before the court., Now coming to the submission by learned counsel for the appellant that the appellant and the victim, being natives of rural areas, did not have any knowledge that their free sexual mixing and marriage would criminalise their action. It is the salutary legal principle that ignorance of law is no excuse. The doctrine is based on the Latin legal maxim ignorantia juris non excusat or ignorantia legis neminem excusat. The aforesaid legal principle holds that a person who is unaware of law may not escape liability for violating that law merely by being unaware of its content., This principle was applicable to small city‑states and percolated to English common law. As an obvious consequence during British rule this principle came to be recognised in Indian law also. Section 76 to 79 of the Indian Penal Code deals with this principle. Regarding tax jurisprudence, there are a catena of decisions including the decision of the Supreme Court of India in Motilal Padampat Mills Ltd. v. State of Uttar Pradesh [1979 (118) ITR 326 SC] in which the Supreme Court observed: ‘It must be remembered that there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement; there is no such maxim known to the law.’ But so far as penal law is concerned there is no reported decision to the effect that ignorance of law is an excuse. The same is the position as far as limitation law is concerned., True, India is a vast country with millions of people, contrasted with England. This is a country with large diversities. The majority of people live in rural areas and education has not yet reached the bottom line though high claims are being made by political dispensations. In view of the diversity and ignorance, if a principle such as ignorance of law were to be an excuse in penal law and limitation law, it may set up a dangerous trend and there may be more misuse of the principle than use. We are, therefore, of the view that the submission of learned counsel for the appellant in this regard does not commend to us., Coming to the present case we find that this is a case of non‑exploitative consensual sexual relationship between a minor girl and an older adolescent or perhaps a young adult. There is nothing on record to prove kidnapping by the appellant. No evidence has been led to that effect by the prosecution; rather the victim ipse dixit testified that she voluntarily walked into the house of her lover and married him. They started a conjugal life and about two years thereafter a female child was born to them. This is not a case where a sexual offence has been committed and the appellant married the victim to evade punishment. In the case K. Dhandapani v. State by the Inspector of Police & Ors. (2022 SCC Online SC 1056) the appellant before the Supreme Court of India was the maternal uncle of the victim. The victim at the time of occurrence was 14 years old and she gave birth to a second child fathered by the appellant when she was 17 years old. The Supreme Court, considering the entire facts and circumstances, held that the conviction and sentence of the appellant deserved to be set aside in view of subsequent events. The Court noted a custom in Tamil Nadu of marriage of a girl with the maternal uncle but observed that the case shall not be treated as a precedent., In the present case the girl was 14+ when the occurrence happened. The boy was also an older adolescent or a young adult at that time. There was a love affair between them, but the record is silent as to how they developed an affair and where they saw each other. It appears that the sister of the appellant lives in the vicinity of the parental home of the victim, which might be where they met. There is no record that the mother of the victim ever saw the appellant coming to their house, nor any evidence that the appellant kidnapped the victim. Rather, evidence shows that the victim walked down to the house of the appellant to accept him as her husband. When the victim gave birth to the child she was about 17 years, 2 months and 27 days old, as per the birth certificate. We therefore find no material on record to sustain the conviction of the appellant under Sections 363 and 366 of the Indian Penal Code., We are constrained to say that this is a case of non‑exploitative consensual sexual relationship between two consenting adolescents, though consent in view of the age of the victim is immaterial., Looking at the poverty with which the appellant and the victim are living, the diseased condition of the mother of the appellant, we are sure that both of them have no means to travel farther for justice. For the poor people of the State, this Supreme Court of India being the only constitutional court is the last hope for any relief. In view of such fact we cannot shrink our responsibility and follow the dotted line., As discussed supra, many High Courts including this Court have exercised their inherent jurisdiction under Section 482 of the Criminal Procedure Code to quash proceedings or FIRs on being moved by the accused, especially in such cases. This appellant, being ignorant and poor, could not move this Court in appropriate time seeking quashing of the FIR or proceeding. He has, however, been convicted by the learned trial court and rightly convicted in view of the provisions contained in the Protection of Children from Sexual Offences Act. Taking into consideration the ground reality, subsequent birth of a child, peculiarity of facts and especially the economic conditions of the appellant and suffering of the victim since the date of arrest of her husband, who is managing the family of an ailing mother‑in‑law and a small child without any support by her parents, we are constrained to take a humane view of the matter to do complete justice. We therefore invoke our inherent jurisdiction under Section 482 of the Criminal Procedure Code coupled with our plenary power under Article 226 of the Constitution of India and set aside the conviction of the appellant under Section 6 of the Protection of Children from Sexual Offences Act, Sections 376(3) and 376(2)(n) of the Indian Penal Code., So far as offences under Sections 363 and 366 of the Indian Penal Code are concerned, in view of our discussion supra, the prosecution having failed to prove the said offences, the conviction of the appellant under those sections is set aside on merit on the ground of deficiency of evidence., Accordingly, the impugned judgment dated 19.09.2022 and order of sentence dated 20.09.2022 are set aside. The appeal is accordingly allowed. The appellant who is on bail is discharged of the bail bond., It is made clear that having exercised our inherent jurisdiction under Section 482 of the Criminal Procedure Code and plenary power under Article 226 of the Constitution of India to set aside the impugned judgment and order of sentence, this case shall not be a precedent to be followed by the trial courts of the State. We are, however, of the view that in such cases discretion be exercised by learned trial courts affirmatively so far as grant of anticipatory bail or bail is concerned, taking into consideration the fact situation in the case before them., Pronounced in open court on this day, the 18th day of October, 2023. I agree.
id_608	0	Dusane/Sonali Sarthi Seva Sangh & Another Petitioners; Mumbai Municipal Corporation Respondents. Mr. Ranjit Bhosale as well as Mr. Rakesh Agrawal for the petitioners. Dr. Milind Sathe, senior advocate as well as Mr. K.H. Mastakar for the respondents No. 1 and 2 (Municipal Corporation of Greater Mumbai). Mr. Aspi Chinoy, senior advocate as well as Dr. Birendra Saraf, senior advocate as well as Mr. Murtuza Federal and Ms. Rashne Mulla‑Feroze in behalf of Federal & Company for the respondent No. 3., The Supreme Court of India has time and again held that the High Courts must remain vigilant to attempts to misuse Public Interest Litigation to subserve extraneous and motivated purposes. It has been consistently held that such efforts must be dealt with firmly. High prerogative writs cannot be utilised for such ends. [Aleemuddin vs. State of Uttar Pradesh and Ors., reported in (2020) 18 SCC 419] This case is a classic example of the abuse of the Public Interest Litigation jurisdiction of this Court., The petitioner No. 1 claims to be a society incorporated under the provisions of the Societies Registration Act, 1860. The petitioner No. 1 claims that it has been incorporated with an object to promote ecology and render services to social and down‑to‑stream people. The petitioner No. 2 is an individual. The relationship between the petitioner No. 1 or its members and the petitioner No. 2 is not disclosed in the petition. Why petitioners No. 1 and 2 jointly took the decision to file this Public Interest Litigation, how they came together, and how the decision was taken are conspicuous by non‑disclosure., The Public Interest Litigation is filed seeking setting aside of the amended plan approved on 26 March 2021 to the extent of granting an additional 0.73 Floor Space Index (hereafter FSI) to the plot in question namely C.S. No. 2 (part), Plot ‘E’, known as Shah House situated at Dr. A.B. Road, Worli Division, ‘G’ South Ward, Mumbai – 400 018, considering a notional plot area of said plot as 3 124.09 square metres when the actual physical area measures 1 672.26 square metres. The petitioner has also prayed to recompute the Floor Space Index by deducting the additional 0.73 FSI and for demolition of the constructions made by the respondent No. 3 that consumed the additional 0.73 FSI. An alternative prayer is that the Municipal Commissioner of respondent No. 1 be directed to decide the complaint/notice dated 17 August 2021 within thirty days or such period as directed by this Court., We have heard Mr. Ranjit Bhosale, learned advocate appearing for the petitioners; Dr. Milind Sathe, learned senior counsel for the respondents No. 1 and 2; and Mr. Aspi Chinoy, learned senior counsel for the respondent No. 3., Mr. Ranjit Bhosale, learned advocate for the petitioners, submitted that the actual physical area of the said plot is 1 672.26 square metres and therefore, notionally considering the plot area as 3 124.09 square metres and granting FSI on such notional plot area is totally illegal. He pointed out the definition of site and FSI defined under Regulation 2(109) and Regulation 2(61) of the Development Control and Promotional Regulation, 2034 (hereinafter referred to as “DCPR”). He also relied on Clause 8 of Regulation 33(6). He submitted that the respondent No. 1 has illegally granted fungible FSI and zonal FSI and therefore the petitioners are constrained to approach this Court seeking the reliefs as sought in the petition. He relied on the judgment of a coordinate bench of this Court in the matter between Grace Estate Development Venture vs. Municipal Corporation of Greater Mumbai and Others, reported in 2020 (1) Bom. C.R. 684 to substantiate his contention that FSI cannot be granted on the notional plot area and the actual plot area has to be taken into consideration., Mr. Milind Sathe, learned senior counsel appearing for respondents No. 1 and 2, submitted that the Public Interest Litigation is not filed in public interest. Why this particular project is targeted is not explained. He submitted that Plot ‘E’ is not a sub‑divided plot and it is part of a larger plot measuring 12 422.02 square metres. The demolished building on Plot ‘E’ had a built‑up area of 5 186.73 square metres and therefore, land entitlement of this built‑up area was 3 124.54 square metres, which was taken into consideration while processing the plans. He submitted that the same is in conformity with Regulation 33(6) of DCPR and that there is no illegality in sanctioning of the plan. He further submitted that the FSI granted is in accordance with DCPR and therefore there is no substance in the contention that additional FSI has been granted in violation of the various provisions of DCPR., Mr. Aspi Chinoy, learned senior counsel appearing on behalf of respondent No. 3, pointed out that the Municipal Corporation of Greater Mumbai approved a layout plan dated 9 May 1964. He submitted that as per the approved layout plan, building No. ‘E’ utilised the FSI of 1.66 square metres i.e. 5 186.77 square metres equivalent to 3 124.09 square metres of plot area. He submitted that on or about 7 November 1974, the owners of the entire land, without effecting partition by metes and bounds and without effecting sub‑division, allotted plots A to G amongst themselves. Therefore, there is no sub‑division of the larger plot of land. These plots A to G were carved out by excluding the area used for roads and open areas of the larger plot., Mr. Chinoy further pointed out a deed of confirmation dated 15 December 2005 and an Indenture of Lease dated 18 February 2005. He submitted that the lease deed specifically gives the right for putting up any additional construction vertically or horizontally on the said plot or on any adjoining property and gives the right to load FSI, Transfer of Development Rights or any other building potential of any other property on any of the structures constructed or to be constructed on the said plot. He submitted that the owners of the other plots namely A, B, C and D have not raised any objection and therefore, granting of FSI as done by the Corporation is not illegal. He submitted that the judgment in Grace Estate is not applicable as in that case other societies raised objection to the grant of FSI. He submitted that the present case is distinguishable on facts because the lease deed gives a specific right to avail the additional FSI and other co‑owners have not objected for grant of said FSI., Before considering the rival contentions on merits, it is necessary to see whether the present litigation is filed in the public interest or for extraneous consideration or is motivated., The Supreme Court of India in Peoples Union for Democratic Rights and Ors. vs. Union of India and Ors., reported in (1982) 3 SCC 235, while explaining the importance of Public Interest Litigation, held that public interest litigation is brought before the court not for the purpose of enforcing the right of one individual against another as happens in ordinary litigation, but it is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large numbers of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and unredressed. The Court observed that such violations would be destructive of the rule of law which forms one of the essential elements of public interest in any democratic form of government. The Court further held that public interest litigation is a cooperative or collaborative effort on the part of the petitioner, the state or public authority and the Court to secure observance of the constitutional or human rights, legal rights, benefits and privileges conferred upon the vulnerable sections of the community., The Supreme Court of India in State of Uttaranchal vs. Balwant Singh Chaufal & Ors., reported in (2010) 3 SCC 402, discussed how over a period of time the sphere of public interest litigation has broadened. It held that broadly public interest litigation can be divided into three phases/categories: Phase I deals with cases where directions and orders are passed primarily to protect fundamental rights under Article 21 of the Constitution for marginalised groups and sections of society who, because of extreme poverty, illiteracy and ignorance, cannot approach this Court or the High Courts. Phase II deals with cases relating to protection and preservation of ecology, environment, forests, marine life, wildlife, mountains, rivers, historical monuments, etc. Phase III deals with directions issued by the Courts in maintaining probity, transparency and integrity in governance., The Supreme Court of India emphasized the importance of Public Interest Litigation in State of Uttaranchal (supra) in paragraphs 31 and 36, stating that public interest litigation is an extremely important jurisdiction exercised by the Supreme Court and the High Courts. The Courts, in a number of cases, have given important directions and passed orders which have brought positive changes in the country, immensely benefiting marginalised sections of society, protecting ecology and environment, and helping maintain probity and transparency in public life. The Court further observed that public interest litigation is not adversarial but a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure them social and economic justice, the signature tune of our Constitution., Thus, the importance of Public Interest Litigation and the significant impact of the orders passed in Public Interest Litigation on the citizens of India, particularly the weaker sections, cannot be undermined. However, there are several instances noticed by the Supreme Court of India as well as the High Courts where it has been found that such an important jurisdiction is abused for extraneous and motivated purposes., In Kushum Lata vs. Union of India and Ors., reported in (2006) 6 SCC 180, the Supreme Court of India discussed the abuse of Public Interest Litigation, stating: “When there is material to show that a petition styled as a public interest litigation is nothing but a camouflage to foster personal disputes, the petition is to be thrown out. Public interest litigation which has now come to occupy an important field in the administration of law should not be publicity interest litigation or private interest litigation or politics interest litigation or the latest trend paisa income litigation. The High Court has found that the case at hand belongs to the second category. If not properly regulated and abuse averted, it becomes a tool in unscrupulous hands to release vendetta and wreak vengeance. There must be real and genuine public interest involved in the litigation and not merely an adventure of a knight‑errant borne out of wishful thinking. It cannot be invoked by a person or a body of persons to further personal causes or satisfy personal grudge and enmity. The courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to the extraordinary jurisdiction. A person acting bona fide and having sufficient interest in the proceeding of public interest litigation will alone have locus standi and can approach the court to wipe out violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration.” The Court cited Janata Dal v. H.S. Chowdhary (1992) 4 SCC 305; 1993 SCC (Cri) 36; Kazi Lhendup Dorji v. CBI (1994) Supp (2) SCC 116; 1994 SCC (Cri) 873; Ramjas Foundation v. Union of India (1993) Supp (2) SCC 20; AIR 1993 SC 852; and K.R. Srinivas v. R.M. Premchand (1994) 6., The Supreme Court of India noted abuse of Public Interest Litigation in paragraphs 143 and 144 of State of Uttaranchal (supra) and observed: “Unfortunately, of late, it has been noticed that such an important jurisdiction which has been carefully carved out, created and nurtured with great care and caution by the courts, is being blatantly abused by filing some petitions with oblique motives. We think the time has come when genuine and bona fide public interest litigation must be encouraged whereas frivolous public interest litigation should be discouraged. In our considered opinion, we have to protect and preserve this important jurisdiction in the larger interest of the people of this country but we must take effective steps to prevent and cure its abuse on the basis of monetary and non‑monetary directions by the courts.” The Court further referred to BALCO Employees’ Union v. Union of India, 98 (2002) 2 SCC 333; AIR 2002 SC 350, recognising increasing instances of abuse of Public Interest Litigation and devising strategies such as limiting standing to individuals acting bona fide, imposing exemplary costs as a deterrent, and instructing the High Courts to be more selective in entertaining Public Interest Litigations., In view of rampant abuse of Public Interest Litigation, the Supreme Court of India, in paragraph 181 of State of Uttaranchal (supra), issued certain directions: (1) Courts must encourage genuine and bona fide Public Interest Litigation and effectively discourage and curb Public Interest Litigation filed for extraneous considerations. (2) Each High Court should formulate rules for encouraging genuine Public Interest Litigation and discouraging petitions filed with oblique motives within three months, and the Registrar General of each High Court shall send a copy of the rules to the Secretary General of this Court. (3) Courts should prima facie verify the credentials of the petitioner before entertaining a Public Interest Litigation. (4) Courts should be prima facie satisfied regarding the correctness of the contents of the petition before entertaining it. (5) Courts should be fully satisfied that substantial public interest is involved before entertaining the petition. (6) Petitions involving larger public interest, gravity and urgency must be given priority over other petitions. (7) Courts before entertaining the Public Interest Litigation should ensure that it is aimed at redressal of genuine public harm or public injury and that there is no personal gain, private motive or oblique motive behind filing it. (8) Petitions filed by busybodies for extraneous and ulterior motives must be discouraged by imposing exemplary costs or similar novel methods to curb frivolous petitions., The Supreme Court of India in Kalyaneshwari vs. Union of India and Ors., reported in (2011) 3 SCC 287, reiterated that great care has to be taken before exercising jurisdiction and deciding a Public Interest Litigation. The Court stated: “The courts, while exercising jurisdiction and deciding a public interest litigation, have to take great care, primarily, for the reason that wide jurisdiction should not become a source of abuse of process of law by disgruntled litigants. Such careful exercise is also necessary to ensure that the litigation is genuine, not motivated by extraneous considerations and imposes an obligation upon the litigant to disclose true facts and approach the Court with clean hands. Thus, it is imperative that the petitions which are bona fide and in public interest alone be entertained.”, As noted earlier, the Supreme Court of India in Aleemuddin (supra) reminded the High Courts to remain vigilant to attempts to misuse Public Interest Litigation to subserve extraneous and motivated purposes. Such efforts must be dealt with firmly. High prerogative writs cannot be utilised for such ends., It is therefore settled that before entertaining a Public Interest Litigation, a duty has been cast on the High Court to verify that the Public Interest Litigation is genuine, bona fide and that substantial public interest is involved. In view of this settled position, we will examine whether the present Public Interest Litigation is filed in the public interest., The petitioner No. 1 is a society registered under the provisions of the Societies Registration Act. The petitioners claim that the society has been incorporated with an object to promote ecology and render services to social and down‑to‑stream people. The petitioners have not annexed the Memorandum of Association of the society with the petition memo to demonstrate that the society has been formed with the said object. As we wanted to verify whether the Public Interest Litigation is filed in public interest, we directed the petitioners to produce the same and accordingly, the petitioners produced the Memorandum of Association of the petitioner No. 1 society along with their advocate’s letter dated 15 September 2022. The Memorandum of Association of Sarthi Seva Sangh shows the following objectives: 1. To create unity, brotherhood etc. amongst the members of the Society and the general public. 2. To help the members and the general public by providing free legal aid and assistance to them. 3. To solve the problems of members and the general public from time to time. 4. To file Public Interest Litigation, writ petitions against complaint illegality, anti‑social element. 5. To implement the scheme of Government, semi‑government and Municipal Corporation subjects to their conditions. 6. To run and organise social activities and programmes for the benefit of the Society. 7. To create social, cultural, educational awakening amongst the members. 8. To work for the welfare and development of the members and the general public through various programmes, lectures, demonstrations and other activities. 9. To give educational help to poor and deserving students. 10. To give medical help to the poor people. 11. To arrange medical camps. 12. To perform social and cultural activities. 13. To provide relief to the people who are affected by natural calamities. 14. To do such other things which are incidental and conducive to attainment of the above objects.” (Note: Copy of Memorandum of Association submitted in Court shows that Clause Nos. 4 and 5 are struck off.), The objects of the petitioner No. 1 society do not show that one of the objects is to promote ecology. The petitioners have made the following solemn statement in paragraph 1 of the Public Interest Litigation: “The petitioner No. 1 has been incorporated with an object to promote ecology and render services to social and down‑to‑stream people.” A bare perusal of the objects of the society clearly shows that promoting ecology is not an object of the society. The statement in the Public Interest Litigation is therefore not correct., It is further significant to note that the office bearers and members of the society are residing at Bandra and Kurla localities of Mumbai while the plot in question is at Worli. The details are as follows: 1. Mr. Sayed Shoukat Abbas, 1709/A, Bharat Nagar, Bandra (East), Mumbai 400051 – President. 2. Mr. Abdul Bayan, 8/104, Kapadia Nagar, Kurla (West), Mumbai 400070 – Vice President. 3. Mr. Mir Mozam Ali, S. No. 341, Kala Nagar, BKC Road, Bandra (East), Mumbai 400051 – Secretary. 4. Mr. Mir Safder Ali, 04/306, Kapadia Nagar, Kurla (West), Mumbai 400070 – Treasurer. 5. Mr. Sanjay Gupta, Shastri Nagar, C.T.S No. 629 (pt), Bandra (East), Mumbai 400051 – Member. 6. Mr. Mohamad Aslam Shaikh, Shop No. 2, Plot No. 1, Bharat Nagar, Bandra (East), Mumbai 400051 – Member. 7. Mr. Shaikh Jabbar, Islampura, 1709/B, Bharat Nagar, Bandra (East), Mumbai 400051 – Member., The Public Interest Litigation was lodged on 27 September 2021 and the resolution dated 19 September 2021 was passed by the society authorising filing of this Public Interest Litigation. The resolution does not show that the office bearers and members of the society are aware of the factual position involved in this Public Interest Litigation and that the society took a conscious decision to file the present Public Interest Litigation. The resolution is vague and of a general nature. The resolution reads as follows: “Mir Mozam Ali of the society is duly authorised on behalf of the society to file vakalatnama, petitions including Public Interest Litigation, reply, rejoinder, written statement, suit or any other proceeding. Further, to sign and file or withdraw application, Public Interest Litigation, contempt petition, criminal application, writ petition, review, suit dispute, proceeding before judicial, quasi‑judicial, administrative authorities, special leave petitions (civil/criminal), appeal from order, first appeal, claims, consent term and counter‑claims, appeals, applications, affidavits, vakalatnama and writing of every description and nature as may be necessary to be signed, verified and/or executed for the purpose of any disputes, suit, action, appeals and proceedings of any kind whatsoever before any court of law whether of original, appellate or criminal or divisional jurisdiction and to do all acts and appearance and application or evidence in any such proceeding brought or commenced and to defend, answer or oppose the same and to execute such decree or order as the said person shall be advised or think proper and to sign or execute application, affidavits or other documents or writing relating thereto before the Hon’ble High Court or Hon’ble Supreme Court of India. To appoint and engage advocates, solicitors, senior counsel/advocate in such proceedings and to agree to pay their fees and costs in accordance with law. To do all necessary acts, deeds, steps, etc., to properly prosecute and/or defend (as the case may be) such proceedings including giving of evidence on behalf of the society. Further he is authorised to execute all documents, affidavits, plaints, petitions, SLP, applications etc. and to do all the deeds, acts required for the same and also to expend the society’s fund being legal expenses. We confirm that the society shall be bound by the action through the hands of said Mr. Mir Mozam Ali. Proposed by: Mohammed Aslam Shaikh. Seconded by: Shaikh Jabbar. Carried unanimously. Dated: 19.09.2021. Place: Mumbai.”, The above position clearly demonstrates the casual manner in which the petitioner No. 1 took the decision to file this Public Interest Litigation. The judgments of the Supreme Court of India set out the importance of Public Interest Litigations. The petitioners have invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by filing a Public Interest Litigation. There is nothing in the resolution to demonstrate that the petitioner No. 1 took a conscious decision to file the Public Interest Litigation., The petitioners have specifically stated in the petition that they have noticed only this case where there is an apparent violation of Development Control and Promotional Regulation, 2034 favoring respondent No. 3 for extraneous consideration. The relevant averment reads: “The present is the only case that came to the notice of the petitioners where there is an apparent violation of Development Control and Promotional Regulation, 2034 favoring respondent No. 3 for reasons and extraneous consideration, in the manner stated.”, It is well‑known that in a city like Mumbai, there are a large number of unauthorised and illegal constructions carried out without permission from the planning authority. Several projects have FSI violations. Several slum projects have inflated numbers of slum dwellers to avail extra FSI in an illegal manner., The Court was required to take suo motu cognizance of the collapse of unauthorised structures/buildings resulting in loss of lives, numbered as Suo Motu Public Interest Litigation No. 1 of 2020. A coordinate bench of this Court, of which one of us (the Chief Justice) was a member, issued several directions in paragraph 101 of the order: “101. It is with the above parting words we close the present proceedings by the following orders: (i) We accept the report of the learned Commissioner on the questions as framed by us in terms of the findings as recorded by the learned Commissioner qua each of such questions. (ii) In particular we accept the following findings of the learned Commissioner in regard to question no. (h) and direct the Principal Secretary to initiate action against the Municipal and State Government officials and employees in the manner directed in the subsequent part of this order: MCGM being the local authority for Greater Mumbai, which includes Malwani Village, officials of the MCGM viz. Junior Engineer and Building Mukadam attached to the Office of the Designated Officer of MCGM for Malwani Village were responsible to maintain vigil and supervision in respect of unauthorised developments at Malwani Village. Similarly, since the unauthorised construction was on State Government land, officials from the Office of the Additional Collector (ENC), Malad 2 viz. the Surveyor in the Office of the Deputy Collector (ENC/Removal), Malad 2 were responsible to maintain vigil and supervision in respect of unauthorised developments on Government land at Malwani Village. (iii) The planning authorities through their competent officers shall keep informed the Urban Development Department of the Government of Maharashtra on the numbers of illegal constructions in the respective municipal and jurisdictional areas and the action being taken, which shall be notified on the website of the planning authority. (iv) The names and designations of the officers/municipal officers and employees in charge of the respective municipal and jurisdictional areas, vested with the authority to initiate action in regard to illegal, unauthorised and ruinous structures, shall be notified by the planning authorities/municipal corporations ward‑wise on their official websites, so that accountability can be attributed and fixed in deciding complaints which may be filed by aggrieved persons. (v) The Municipal Commissioner and/or the competent authority of a designated planning authority is directed to take a review of the illegal buildings/structures in every ward and actions taken thereon, periodically between the 25th to 30th day of every month. (vi) Except for an acceptable and lawful reason, if an illegal and unauthorised construction is found to have subsisted and/or its non‑removal is aided and/or abetted by municipal officers or their employees for a substantial time of more than six months, the Municipal Commissioner shall take penal action against such erring municipal officers including lodging of prosecution under the municipal laws, in addition to the relevant provisions of the Indian Penal Code, apart from initiating disciplinary proceedings. (vii) In so far as the notified slum areas are concerned, in respect of all illegal and unauthorised constructions, in accordance with the provisions of Section 3Z‑2(7) of the Slums Act, the State Government is directed to lodge prosecution including against the competent authority and the other officers of the SRA for having aided or abetted the construction of unauthorised or illegal structures and also against the persons responsible for putting up these structures. In the event there is a collapse of a structure/building in the slum area, the direction in (vi) above shall be applicable against the competent authority and other officers who are in‑charge of supervising and taking actions on illegal constructions in slum areas. (viii) …”
id_608	1	In the event of a building collapse resulting in loss of lives, the Principal Secretary (Urban Development Department) and/or the Municipal Commissioner, as the case may be, shall immediately conduct an enquiry to be completed within a period of fifteen days from such collapse, so as to determine the responsibility of the concerned Municipal and Government officials failing to discharge their duties, and after so ascertaining, institute criminal proceedings against the concerned officers and employees in charge of the Ward and those who were responsible to take action on the dilapidated buildings, as also against the higher officials under whom such ward officer/designated officer would immediately work. Such criminal prosecution shall be under the provisions of the municipal laws as well as under the relevant provisions of the Indian Penal Code., The persons who put up illegal or unauthorized constructions cannot claim any immunity by undertaking such illegal acts. The Municipal Commissioner, apart from taking action for demolition of such illegal structures, shall also institute criminal proceedings against such persons who are found to have violated municipal laws and constructed unauthorized or illegal structures, in a manner known to law. Those who are victims of a building collapse, in the absence of any fault on their part, would also be entitled to seek relief in appropriate civil and criminal proceedings against the owners of the building and the municipal officers, notwithstanding their right in law to claim compensation from such parties., The concerned Municipal Commissioners are directed to give effect to the provisions of Section 152A of the Maharashtra Municipal Corporations Act and Section 267A of the Maharashtra Municipal Corporations Act to levy a penalty which shall be equal to twice the property taxes leviable on such building, so long as it remains unlawful, and recover such amounts as arrears of property taxes., The Permanent Standing Committee (Encroachment Prevention Committee) as constituted under the Government Resolution dated 15 December 2004 shall forthwith be made functional by the State Government so as to commence its functioning with effect from 15 March 2022. Such committee shall hold periodical sittings twice every month to take account of the actions on illegal structures in Mumbai. The committee shall also be constituted in respect of other cities in Maharashtra and shall hold sittings accordingly., In so far as the State Government’s land and/or other public lands in respect of which, to date, no slum schemes are approved by the Slum Rehabilitation Authority, such lands shall not be redeveloped under slum redevelopment schemes unless the State Government or the concerned public authority gives a no‑objection, to be published in at least two local newspapers, that in future it does not require such public lands for any of its purposes, or for the public purposes of any other public bodies under the State or the Central Government. Unless such no‑objection is received from the State Government, the Central Government or any other public body, the development of any slum scheme or private utilization of such land shall stand frozen., The State Government and the public bodies shall take appropriate steps as permissible in law to remove the encroachments of the public lands described above, so that the land is made encroachment‑free and can be utilized for public purpose., In the event the encroached lands are required by the State Government or by any public body, steps shall be taken to remove the encroachment and make the land encroachment‑free within one year, by rehabilitating the slum dwellers of such lands if they are protected occupiers. Such eligible slum dwellers shall be rehabilitated in any other part of the city or in the municipal jurisdiction of the adjoining municipal corporation as the State Government may decide., Thus, it is clear that the statement in the Public Interest Litigation that this is the only case that came to the notice of the petitioners where there is an apparent violation of the provisions of the Development Control and Promotion Regulations is totally false. In Mumbai city, there are several unauthorized and illegal constructions which are widely known. Therefore, there can be no doubt and it is obvious that this Public Interest Litigation has been filed for extraneous reasons and not in the public interest., It is further significant to note that earlier Public Interest Litigation No. 1 of 2017 was filed challenging the redevelopment on the plot which is the subject matter of the present Public Interest Litigation; however, the same was withdrawn on 2 August 2019 on the ground that Development Control and Promotion Regulations 2034 has come into effect and therefore the Public Interest Litigation has been rendered infructuous. In any case, it is also significant to note that redevelopment on the same plot was targeted in 2017 and again targeted by the present Public Interest Litigation, with a specific statement that this is the only construction in the entire city of Mumbai which has come to the notice of the petitioner where the provisions of the Development Control and Promotion Regulations are violated., The learned senior counsel appearing on behalf of the respondents tried to contend that the same advocate on record has filed the present Public Interest Litigation as well as the earlier Public Interest Litigation, although petitioners in both the Public Interest Litigations are different. This contention is raised to support their argument that this project is targeted for extraneous reasons; however, we deem it appropriate not to examine said aspect., Considering various aspects as set out hereinabove, we conclude that this is not a fit case where the Bombay High Court should exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, particularly when the same is brought to the Bombay High Court by labeling it as a Public Interest Litigation., As we have noted that the present Public Interest Litigation is filed for extraneous and motivated purposes, it is dismissed with costs of Rupees 1,00,000 to be paid to the Tata Cancer Hospital, Parel, Mumbai. The amount shall be paid within a period of two weeks from today.
id_61	0	Criminal Appeal No. 500 of 2007 dated the 2nd day of August 2022. This is an appeal filed under Section 374(2) of the Code of Criminal Procedure by accused No. 1 and No. 2 in Special Criminal No. 1317/2003 on the file of the Second Additional Sessions Court, Kollam, assailing the conviction and sentence imposed against them as per judgment dated 12 March 2007. The State of Kerala, represented by the Public Prosecutor, is the respondent., The learned counsel for the appellants and the learned Public Prosecutor were heard in detail., The prosecution case runs as follows: It is alleged that the first accused married Suja, the cousin sister of the de facto complainant, in accordance with the religious rites and customs prevalent in their community on 6 February 1999. At the time of marriage, thirty‑five sovereigns of gold ornaments were given to Suja and a sum of Rs 2,50,000 was promised to be paid as dowry within two years from the date of marriage. Subsequent to the marriage, Suja and the first accused lived together as husband and wife in Balakrishna Vilasom Veedu, Veliyannoor Muri, Ummannoor Village, which is the family house of the first accused as well as the second accused, who is the mother of the first accused. It is further alleged that during the stay the accused subjected Suja to cruelty and harassed her demanding the promised dowry, which had not been paid even after one year of the marriage. The first accused demanded Suja to go to her house and bring dowry and the second accused asked her to commit suicide if she could not pay dowry. The consistent nagging and demand for dowry drove Suja to suicide sometime between 9.30 p.m. on 13 March 2000 and 4.00 a.m. on the next day, by hanging on a fan hook in the bedroom of the residential house of the accused, Balakrishna Vilasom Veedu bearing Door No. 250 of Ward No. II of Ummannoor Panchayat. The accused are alleged to have committed the offences punishable under Sections 304B and 306 read with Section 34 of the Indian Penal Code., On the above facts, the Kottarakkara police registered Crime No. 186/2000 and, on investigation, charge was laid against the accused under Sections 304B and 306 read with Section 34 of the Indian Penal Code., The case was committed to the Kollam Sessions Court and subsequently made over to the Second Additional Sessions Court, Kollam, which tried the case after framing charge., During trial, the prosecution adduced evidence by examining prosecution witnesses 1 to 11 and marked exhibits P1 to P15. During cross‑examination of the prosecution witnesses, exhibits D1 and D2 contradictions were marked on the side of the defense., After questioning the accused under Section 313 of the Code of Criminal Procedure, opportunity was given to adduce evidence, but no defense evidence was adduced., On analysing the evidence after hearing both sides, the trial court found that accused 1 and 2 committed offences under Sections 304B and 306 read with Section 34 of the Indian Penal Code and accordingly sentenced them to undergo rigorous imprisonment for a period of seven years for the offence under Section 304B read with Section 34 and rigorous imprisonment for a period of three years for the offence under Section 306 read with Section 34., The learned counsel for the appellants argued that the trial court convicted the appellants without support of sufficient evidence and that remote evidence given by prosecution witnesses 2 and 3 was given emphasis to find the commission of the offences. He also pointed out that exhibit P4, a diary alleged to be written by the deceased, when forwarded to the Forensic Science Laboratory, and exhibit P12, a report given by the expert, suggested a probability that the diary was written by the deceased., The learned Public Prosecutor vehemently supported the conviction and sentence and pressed for upholding the conviction and sentence, since the prosecution successfully established commission of offences under Sections 304B and 306 of the Indian Penal Code., In view of the rival arguments, it is necessary in the interest of justice to appreciate the evidence in this case., Prosecution witness 1, the cousin brother of Suja, deposed about the marriage between the first accused and Suja held on 6 February 1999 at Anupama Auditorium, Chadayamangalam, and the joint residence of the first accused and Suja at the matrimonial home in Odanavattom. He stated that on the morning of 14 March 2000 Suja died and that there were problems in the marital life. The first and second accused created problems demanding more dowry, and the first accused used to make scenes demanding dowry under the influence of alcohol. He further stated that Suja committed suicide due to cruelty and demand for dowry. Exhibit P1, marked through this witness, is the First Information Statement. He also testified that at the time of marriage thirty‑five sovereigns of gold ornaments were given to Suja and it was agreed to give Rs 2.5 lakh more within two years as dowry. He deposed that his earlier statement in exhibit P1 to the effect that Suja would not commit suicide because there was two years’ time for paying the dowry is not correct; this portion of his previous statement was marked as exhibit D1 on the side of the defense., Prosecution witness 2, the mother of Suja, deposed that Suja is her daughter and that the accused are the husband and mother‑in‑law of Suja. She also described the marriage held on 6 February 1999 and the subsequent joint residence. According to her, the marital life of Suja and the first accused was not satisfactory and the first accused created problems demanding dowry after consuming alcohol. At the time of marriage, thirty‑five sovereigns of gold ornaments were given and it was agreed to give Rs 2.5 lakh more within two years, but the accused demanded the amount before the two‑year period and the money was not given. She deposed that the cruelty of the accused led to Suja’s suicide and that Suja suffered an abortion two to three months after the marriage. She listed the gold chain with thali, one ring, a pair of earrings and an anklet as items available at the time of death, while other gold ornaments were in the custody of the accused. When confronted about the handwriting in exhibit P4, a diary alleged to be written by Suja before suicide, she emphatically denied that it was Suja’s handwriting. She further stated that the first accused maintained a relationship with another lady named Elisa even before the marriage. During cross‑examination, she admitted that the first accused and Suja used to visit her house and stay there for two days, and that she also visited the matrimonial home occasionally., Prosecution witness 3, the younger sister of Suja, supported the evidence of witness 2 regarding the marriage and its aftermath. She stated that a few days after the marriage Suja informed her of cruelty by the accused demanding dowry. She also reported that the first accused had a drinking habit and used to man‑handle Suja after consuming alcohol. She testified that Suja committed suicide due to harassment by the accused demanding dowry. When Suja became pregnant, the first accused pulled her down from the cot, resulting in an abortion, and Suja was hospitalized in Kottarakkara. She further stated that the husband of witness 2 and her father died seventeen years prior to the occurrence and that the two daughters, including Suja, were looked after by witness 2 using her income as a peon in the Public Works Department. Both daughters are graduates. While admitting the signature of Suja in exhibit P2 series letters, she denied the handwriting in exhibit P4 diary. She also corroborated that the first accused maintained a relationship with another lady named Elisa prior to his marriage to Suja., Prosecution witness 4, the Grama Panchayat President of Ummannoor, stated that the accused were his neighbours and that he signed exhibit P3, the inquest report prepared after Suja’s death. He testified that the autopsy examination of Suja was conducted at the Medical College Hospital, Thiruvananthapuram, and that the body was brought to the house of the first accused and later buried in Chadayamangalam, the house of Suja. He also stated that he participated in the funeral where he could not find the first accused and the other accused., Prosecution witness 5, the husband of the sister of the first accused and the son‑in‑law of the second accused, denied the production of exhibit P4 diary alleged to be written by Suja before death. According to him, exhibit P4 diary was taken by the police from the place of occurrence on the date of occurrence itself. The prosecution case is that he produced exhibit P4 before the police after a week from the date of occurrence. In fact, he turned hostile to the prosecution., Prosecution witness 6, a police constable at Thenmala police station on 15 September 2000, testified that he signed exhibit P5, the mahazar prepared for taking custody of exhibit P4 diary when it was produced by witness 5. He also admitted during cross‑examination that exhibit P5 mahazar is in his own handwriting., Prosecution witness 8, while working as Tahsildar and Executive Magistrate at Kottarakkara during March 2000, prepared exhibit P3, the inquest report., Prosecution witness 9, Dr. Rema, Assistant Professor and Deputy Police Surgeon at the Medical College Hospital, Thiruvananthapuram during March 2000, gave evidence supporting exhibit P7, the post‑mortem certificate. According to exhibit P7 and her testimony, the cause of death was consistent with death due to hanging., Prosecution witness 10, the then Assistant Sub‑Inspector of Police, Kottarakkara, deposed about the recording of exhibit P1 statement of witness 1 and the registration of Crime No. 156/2000 under Section 174 of the Code of Criminal Procedure. Exhibit P1(a), marked through him, is a copy of the FIR. He arrested the first accused on 2 June 2000. The contradiction marked as exhibit D1 was proved through his testimony., Prosecution witness 11, the Investigating Officer, generally supported the investigation. It appears that the learned Sessions Judge gave much emphasis to the evidence of witnesses 2 and 3 to find that the accused committed offences under Sections 304B and 306 read with Section 34., Before addressing whether the findings entered into by the trial court are justifiable, it is worthwhile to discuss the essentials required to constitute offences under Sections 304B and 306 of the Indian Penal Code. Section 304 of the Indian Penal Code deals with dowry death. Section 304B of the Indian Penal Code is extracted hereunder: Dowry death. (1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation: For the purposes of this sub‑section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961. (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life., Thus the ingredients to constitute an offence under Section 304B are: (a) there was an unnatural death of a woman; (b) that woman had been married within seven years preceding her unnatural death; and (c) soon before her death she was subjected to cruelty or harassment. Further, (i) such cruelty or harassment was caused by her husband or the husband’s other relative; and (ii) such cruelty or harassment was for or in connection with any demand for dowry., In all dowry death cases the standard of appreciation of evidence must be in the light of the provisions contained in Section 113A of the Evidence Act., When an offence under Section 304B of the Indian Penal Code is alleged, it has a proximate nexus with Section 113B of the Evidence Act, 1872, which reads as follows: Section 113B – 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 her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court 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)., Section 113B of the Evidence Act mandates drawing of presumptions that the husband or relative of the husband of the victim caused her death, and this presumption corresponds to the presumption envisaged in Section 113B of the Evidence Act, 1872. Section 304B(1) of the Indian Penal Code has two limbs. The first limb defines dowry death and the second limb deals with the legal consequence, namely that the husband or such other relative of the husband who soon before the death of the woman was found to have subjected her to cruelty or harassment shall conclusively be held guilty of the offence of dowry death., In the decision reported in V. K. Mishra v. State of Uttarakhand, (2015) 8 SCC 270, AIR 2015 SC 3043, the Supreme Court held that the word “shown” in Section 304B indicates that the prosecution must satisfy the requirement on a pre‑ponderance of probability. The Court observed that independent and direct evidence of dowry demand is ordinarily not available, which is why the legislature introduced Sections 113A and 113B in the Evidence Act to permit presumptions in certain circumstances., In Baijnath & Ors. v. State of Madhya Pradesh, AIR 2016 SC 5313, the Supreme Court held that the burden on the prosecution is to unassailably substantiate the ingredients of the two offences by direct and convincing evidence so as to avail the presumption engrafted in Section 113B of the Act against the accused. Proof of cruelty or harassment by the husband or his relative is the sine qua non to invoke the statutory presumption., The legislative intention of relieving the prosecution of the rigour of proof for facts often inaccessible within the matrimonial home, by granting a presumption against the accused, cannot be used to gloss over a failure to credibly prove the basic facts enumerated in the statutes, lest justice become a casualty., The Supreme Court has repeatedly held that the presumption under Section 113B is contingent on the prosecution first spelling out the ingredients of the offence under Section 304B, as in Shindo Alias Sawinder Kaur v. State of Punjab (2011) 11 SCC 517 and Rajeev Kumar v. State of Haryana (2013) 16 SCC 640. One essential ingredient is that the accused must have subjected the woman to cruelty in connection with a demand for dowry soon before her death, and this must be proved beyond reasonable doubt before the Court may presume the commission of dowry death under Section 113B., In Rajeev Kumar v. State of Haryana, AIR 2014 SC 227, the Supreme Court reiterated that a main ingredient of dowry death under Section 304B is that, soon before her death, the accused must have subjected the woman to cruelty in connection with a demand for dowry., In Rajinder Singh v. State of Punjab, (2015) SC 1359, the Supreme Court held that “soon before” in Section 304B is not synonymous with “immediately before”. The same proposition was reiterated in Satbir Singh & Anr. v. State of Haryana, AIR 2021 SC 2627., In Baljeet Singh v. State of Haryana, AIR 2004 SC 1714, the Court set out the condition precedent for establishing an offence under Section 304B: (a) a married woman died otherwise than under normal circumstances; (b) such death occurred within seven years of her marriage; and (c) the prosecution established that there was cruelty and harassment in connection with a demand for dowry soon before her death., In Baldev Singh v. State of Punjab, AIR 2009 SC 913, the expression “soon before” in Section 304B and Section 113B is understood as a proximity test; no fixed period is defined. The courts determine the appropriate interval based on facts and circumstances, normally implying that the interval between the cruelty or harassment and the death should not be large., The Supreme Court summarized the law on Section 304B and Section 113B as follows: (1) Section 304B must be interpreted keeping in mind the legislative intent to curb bride burning and dowry demand; (2) the prosecution must first establish the necessary ingredients of the offence; once satisfied, the rebuttable presumption under Section 113B operates against the accused; (3) the phrase “soon before” cannot be read as “immediately before”; the prosecution must establish a proximate link between the dowry death and the cruelty or harassment; (4) Section 304B does not categorise death strictly as homicidal, suicidal or accidental, because deaths occurring otherwise than under normal circumstances may be of any of these natures., In a judgment confirming the conviction under Sections 304B and 498A of the Indian Penal Code, the Supreme Court also upheld the acquittal under Section 306 of the Indian Penal Code., In Devendra Singh and Ors. v. State of Uttarakhand, (2022) 2545 CriLJ, AIR Online 2022 SC 577, the Supreme Court considered the ingredients of Section 304B within the ambit of Section 113B and confirmed the conviction of the husband under Section 304B while acquitting appellants 2 and 3 on the finding that there was no specific role regarding dowry demand or specific instances of cruelty and harassment attributable to them., In State of Madhya Pradesh v. Jogendra & Anr., (2022) 5 SCC 401, a three‑bench of the Supreme Court considered the menace of dowry death while dealing with offences under Sections 304B, 498A and 306 of the Indian Penal Code. The Court held that the fundamental constituents are: (i) the death of a woman caused by burns, bodily injury or otherwise than under normal circumstances; (ii) the death occurred within seven years of her marriage; (iii) the woman was subjected to cruelty or harassment by her husband soon before her death; and (iv) such cruelty or harassment was for or related to any demand for dowry., Thus, when the four essentials required to prove an offence under Section 304B are satisfied—(i) death of a woman occurred otherwise than under normal circumstances; (ii) within seven years of her marriage; (iii) soon before her death she was subjected to cruelty or harassment by the accused; and (iv) the cruelty or harassment was in connection with a demand for dowry—the court may presume that the accused committed dowry death., Once the prosecution establishes that the death resulted from cruelty or harassment by the husband or his relative soon before death within seven years of marriage, the burden shifts to the accused to disprove the presumption under Section 113B. If the accused fails to rebut, the court is bound to act on the presumption.
id_61	1	In this case, Exhibit P4 diary has been given emphasis by the accused to rebut the presumption under Section 113B of the Evidence Act. In Exhibit P4, alleged to be written by Suja just before her death, there is a recital to the effect that the husband or his men had no role in the death and the death was the act of Suja. According to the accused, the entry in Exhibit P4 was written by Suja just before her death and the same would show that the accused are innocent. The prosecution forwarded the entries in Exhibit P4 with the admitted handwriting of Suja, marked as Exhibit P2 series, for comparison to determine whether the text in Exhibit P4 was written by Suja before her death. Exhibit P12 is the report. As per Exhibit P12 it was reported as follows: The questioned documents in this case were carefully and thoroughly examined and compared with standard documents in all aspects of handwriting identification and detection of forgery with scientific aids in the State Laboratory at Thiruvananthapuram. The results of examination are the following. The person who wrote the red enclosed standard writings stamped and marked A3 to A10 probably also wrote the red enclosed questioned writings similarly stamped and marked Q1. It has not been possible to arrive at any conclusion regarding the authorship of the red enclosed questioned signature stamped and marked Q1(a) in comparison with the red enclosed standard writings stamped and marked A3 to A10. Thus the evidence as per Exhibit P12 does not suggest that the entries in Exhibit P4 are actually written by Suja., The Trial Court considered the authenticity of the handwriting in Exhibit P4 diary. It observed that the evidence of Witness 5 that the police recovered Exhibit P4 on the date of occurrence from the place of occurrence could not be believed as it was established that Witness 5 produced the same before the Investigating Officer and it was taken into custody as per Exhibit P5, as categorically deposed by Witness 6, who witnessed the recovery of Exhibit P5. It further observed that if the deceased had any intention to reveal the cause which led to her suicide, there was no possibility of the suicide note being concealed in the almirah which might not come to immediate notice of any person entering the room where Exhibit P4 was kept. It further observed that the only writing in the diary is this suicide note and no other entries could be found, which are reasons to disbelieve Exhibit P4. Similarly, the Trial Court observed that there was nothing in Exhibit P4 to indicate that it was being used by Suja prior to her death regularly. In fact, in Exhibit P4 the only entry is the disputed text to the effect that Suja committed suicide of her own volition. Apart from that, Exhibit P4 also did not suggest that it was written by Suja., The reasons stated by the learned Sessions Judge to disbelieve Exhibit P4 are justifiable and I agree with the finding., The defence case from the beginning is that the accused have no responsibility in the suicide of Suja and Suja had committed suicide out of depression as she felt that the marriage of her sister Witness 3 would not take place as arranged since her relative, who had promised some amount to the marriage, had failed to give the amount., During cross‑examination of Witness 2 and Witness 3 it was evidenced that Witnesses 1 to 3 had visited the residence of a relative, Prasad, in Adoor to invite him for the marriage of Witness 3. Further evidence suggested that they had reached the house of the relative Prasad in Adoor for collecting the amount offered by him, but the amount was not paid. However, on cross‑examination, Witnesses 1 to 3 emphatically denied the suggestion that Suja committed suicide arising out of the said depression. It is relevant to note that Witness 3 categorically stated that though the money was not given by Prasad as expected on the date, Prasad agreed to give the money., The crucial question to be decided is whether Suja was subjected to cruelty by demanding the offered dowry soon before the occurrence. Reading the evidence of Witness 2 and Witness 3, demand for the offered dowry soon after the marriage and harassment at the hands of the first accused were repeatedly stated. It is pertinent to note that Suja committed suicide just after one year of marriage on 14 March 2000, the marriage having taken place on 6 February 1999. Witness 2 gave evidence that she was employed as a peon in the Public Works Department, Government of Kerala and she had a chitty with Kerala State Financial Enterprises to conduct the marriage of Witness 3 and ultimately stated that the marriage of Witness 3 was solemnised on the earlier fixed date. Thus the prosecution evidence established that Suja committed suicide just after one year of marriage and soon before her death she was subjected to cruelty and harassment by the first accused and she committed suicide in consequence thereof. The evidence does not suggest cruelty and harassment on the part of the second accused in a satisfactory manner., As I have already pointed out, Witness 2 and Witness 3 specifically deposed about the demand for dowry by the first accused and cruelty and harassment demanding the offered dowry soon after the marriage and its continuance thereafter. While so, just after completion of one year of married life, Suja committed suicide. There is no reason to disbelieve the categorical evidence given by Witness 2 and Witness 3. The evidence of Witness 2 and Witness 3 along with other evidence discussed above categorically established the four essentials to constitute an offence under Section 304B of the Indian Penal Code committed by the first accused. The same position applies to the offence under Section 306 of the Indian Penal Code. However, the allegation of cruelty and harassment on the part of the second accused was not fully established. The prosecution did not succeed in establishing that the second accused committed the offences under Sections 304B and 306 of the Indian Penal Code by convincing evidence. Therefore, I hold that the conviction imposed on the first accused under Sections 304B and 306 of the Indian Penal Code will sustain. As far as the second accused is concerned, the conviction and sentence imposed under the above sections are not sustainable., Though it is the bounden duty of the accused to disprove the presumption under Section 113B of the Evidence Act, no convincing evidence was forthcoming to rebut the presumption. Therefore, I am of the view that the Trial Court convicted the first appellant/first accused under Sections 304B and 306 of the Indian Penal Code, in accordance with law. However, the conviction and sentence imposed against the second accused is not supported by convincing evidence and, therefore, the said conviction and sentence are liable to be set aside., Regarding the sentence imposed against the first appellant/first accused, Section 304B of the Indian Penal Code mandates that whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life. Since the court below imposed the statutory minimum sentence, the sentence imposed by the Sessions Court for the offence under Section 304B of the Indian Penal Code is not liable to be interfered with and is confirmed. Similarly, for the offence under Section 306 of the Indian Penal Code, if any person commits suicide, whoever abets the commission of 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. The Sessions Court imposed rigorous imprisonment for a period of three years for the offence under Section 306 of the Indian Penal Code, without imposing any fine. This procedure is illegal. When the statute imposes imprisonment and fine, they shall be read conjunctively, not disjunctively. Therefore, both forms of punishment shall be imposed. Since there is no statutory minimum sentence for the offence under Section 306 of the Indian Penal Code, I am inclined to reduce the sentence to two years and impose a fine of Rupees Twenty thousand only. In default of payment of the fine, the first accused shall undergo default rigorous imprisonment for a period of one month., In the result, this appeal is allowed in part. The conviction and sentence imposed against the second accused are set aside and the second accused is acquitted for the offences under Sections 304B and 306 read with Section 34 of the Indian Penal Code. The bail bond executed by the second appellant/second accused shall stand cancelled and she is set at liberty forthwith., The conviction imposed against the first appellant/first accused for the offences under Sections 304B and 306 read with Section 34 of the Indian Penal Code is confirmed while modifying the sentence as follows: (i) The first appellant/first accused shall undergo rigorous imprisonment for a period of seven years for the offence punishable under Section 304B of the Indian Penal Code. (ii) The first appellant/first accused shall undergo rigorous imprisonment for a period of one year and pay a fine of Rupees Twenty thousand only for the offence punishable under Section 306 of the Indian Penal Code. In default of payment of the fine, he shall undergo rigorous imprisonment for a period of one month. Set off is allowed for the period the first appellant/first accused had been in custody in connection with this crime. Regarding destruction of MOs 1 to 4, the order passed by the Sessions Judge is confirmed. The bail bond executed by the first appellant stands cancelled and the first accused/first appellant is directed to surrender before the Trial Court within ten days from today to undergo the sentence.
id_610	0	FIR No. 59/2020 PS- Crime Branch, Delhi (investigated by Special Cell) Under Sections 13, 16, 17 and 18 of the Unlawful Activities (Prevention) Act, 120B read with Sections 109, 114, 12435, 436, 452, 454, 468, 471 and 34 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and Sections 25 and 27 of the Arms Act. State versus Tahir Hussain and Others, dated 09 June 2023. Present: Shri Amit Prasad, Learned Special Public Prosecutor for the State, along with Investigating Officer/Additional Deputy Commissioner of Police Alok Kumar, Inspector Anil and Sub‑Inspector Raj Bahadur Gill, Pairavi Officer from Special Cell., Accused Khalid Saifi produced from Jail with Learned Counsel Shri Rajat Gautam. Accused Isharat Jahan alias Pinki on bail with Learned Counsel Shri Amjad Khan. Accused Meeran Haider from Jail with Learned Counsel Ms. Chinmay Chatterjee. Accused Tahir Hussain from Jail with Learned Counsel Ms. Shivangi Sharma. Accused Gulfisha alias Gul from Jail with Learned Counsel Shri Harsh Bora (through video conferencing). Accused Shifa‑Ur‑Rehman from Jail with Learned Counsel Shri Gulrej Ahmad. Accused Asif Iqbal Tanha on bail with Learned Proxy Counsel Ms. Chinmay Chatterjee. Accused Shadab Ahmed from Jail with Learned Counsel Ms. Deeksha Dwivedi. Accused Tasleem Ahmed from Jail with Learned Counsel Mr. Mohd. Hasan. Accused Saleem Malik alias Munna produced from Jail with Learned Proxy Counsel. Accused Mohd. Saleem Khan from Jail. Accused Athar Khan from Jail with Learned Proxy Counsel Shri Pranav Sethi. Accused Safoora Zargar is absent; Shri Rajat Gautam, Learned Proxy Counsel for accused Safoora Zargar. Accused Sharjeel Imam from Jail with Learned Proxy Counsel Ms. Ayesha Zaidi. Accused Umar Khalid from Jail with Learned Counsel Shri Sahild Ghai through video conferencing. Accused Faizan Khan on bail with Learned Proxy Counsel Ms. Azra Rehman (through video conferencing). Accused Natasha Narwal on bail. Accused Devangana is absent; Shri Saurya Mittal, Learned Proxy Counsel for accused Natasha Narwal and Devangana Kalita., Accused Suleman Siddiqui alias Salman and accused Amanullah have already been declared proclaimed offenders by order dated 23 December 2020 and 1 October 2021 respectively. Notice to the Special Commissioner of Police (Special Cell) was received back duly served. A written request for exemption on behalf of the Special Commissioner of Police, Special Cell was received stating that due to administrative exigencies he is not in a position to attend the court and may be exempted from personal appearance for today. In view of the request, the exemption is allowed., A fresh vakalatnama on behalf of accused Shadab Ahmed has been filed and taken on record. Two separate applications on behalf of accused persons Devangana Kalita and Safoora Zargar seeking exemption from personal appearance have been filed; the applications are allowed for today only., An application on behalf of accused Faizan Khan seeking release of certain articles on surrender has been filed. Learned Counsel for accused Faizan Khan states that submissions will be made after discussion with the client and the position regarding release of the articles will be clarified. On the counsel’s request, the application for surrender is kept for consideration on the next date., An application concerning Section 207 of the Criminal Procedure Code with respect to accused Devangana Kalita is fixed for arguments. On the request of Learned Counsel for the accused, arguments will be heard on the next date., A supplementary charge‑sheet has also been filed yesterday. The Learned Special Public Prosecutor points out a small discrepancy in the title page where the supplementary charge‑sheet is mentioned as number 04 instead of 05. The correction is noted; the charge‑sheet shall be read as number 05 and copies supplied to all accused persons and their counsels upon proper acknowledgment., An application on behalf of the Investigating Officer for desealing of exhibits to make copies thereof has been submitted. It is noted that audio‑video recordings of witnesses and their statements under Section 161 of the Criminal Procedure Code are already available, and the forensic science laboratory (FSL) report has been received and is lying with the Malkhana of the Special Cell with the FSL seal. The sealed documents shall be sent back to the concerned FSL for making copies for each accused, which will then be deposited in the Malkhana. The Investigating Officer shall take necessary steps to effect the same. Regarding the Azmi Registers lying in the Malkhana with the seal of the Investigating Officer, they shall be produced on the next date of hearing., All accused who are in jail shall be produced physically from jail on the next date of hearing. A copy of this order shall be sent to the concerned Jail Superintendents for information and compliance.
id_611	0	Writ Petition(s) (Civil) No(s). 708/2021 Date: 27-07-2021 This petition was called on for hearing today. For Petitioner(s): Mr. Chinmoy Pradip Sharma, Senior Advocate; Mr. Mohit Paul, Advocate on Record; Mr. Irfan Haseeb, Advocate; Ms. Sunaina Phul, Advocate., Among the reliefs which have been sought in these proceedings under Article 32 of the Constitution is a mandamus in the following terms, in prayer (a): a direct the respondents to restrain beggars and vagabonds/homeless from begging on traffic junctions, markets and public places to avoid the spread of Covid-19 pandemic in all the states and union territories across India and rehabilitating them and to further ensure food, shelter and basic medical amenities including Covid-19 vaccination to them., The relief sought in prayer (a) indicates that the petitioner seeks a direction to the respondent to restrain beggars and vagabonds/homeless from begging on traffic junctions, markets and public places to avoid the spread of Covid-19 pandemic in all the States and Union Territories across India. The latter part of prayer (a) is for rehabilitating them so as to ensure that basic amenities including food, shelter and medical facilities including vaccination are provided., At the outset, the Supreme Court of India has indicated to Mr. Chinmoy Pradip Sharma, learned Senior Counsel appearing on behalf of the petitioner, with Mr. Mohit Paul, learned counsel, that the prayer for a direction in the above terms cannot be countenanced. A large number of people, including children, are compelled to be on the streets to beg due to the absence of education and employment. This is a socio‑economic issue and cannot be remedied by a direction of the nature that is sought in prayer (a). This is a human problem which has to be redressed by the welfare State in a manner which accords with Parts III and IV of the Constitution., Mr. Chinmoy Pradip Sharma, learned Senior Counsel, has submitted to the Supreme Court of India that the object and purport of the petition under Article 32 is not what is conveyed by a prima facie reading of the first part of prayer (a) and that, as a matter of fact, the petitioner seeks appropriate directions for the rehabilitation of those who are compelled to be on the streets to eke out their livelihood by pursuing avocations such as begging. In the context of the Covid-19 pandemic, it has been submitted that there is an urgent need to ensure that the vaccination programme includes them like all other citizens., Since the first part of prayer (a) is not pressed before this Supreme Court of India, we are inclined to issue notice. However, the petitioner shall amend prayer (a) so as to bring it in conformity with the above position and the submissions which have been urged before this Court., Issue notice to the Union of India and to the Government of National Capital Territory of Delhi, at the present stage., Dasti, in addition, is permitted., Liberty is granted to serve the Union of India through the Central Agency., Since the immediate issue which needs to be attended is that of vaccinating the persons to whom the petition relates and to ensure the due provision of medical facilities in the Covid-19 pandemic, we would expect a response from the Union of India and the Government of National Capital Territory of Delhi on what steps are being taken to deal with this human concern., We request the learned Solicitor General to assist the Court., The petition is listed on 10 August 2021.
id_615	0	A further affidavit has been filed by the Managing Director (In Charge), Gujarat Safai Karmachari Vikas Nigam, Gandhinagar. Along with the further affidavit, statements showing details about the action taken by the Authority and the amounts disbursed to the legal heirs of deceased workers who lost their lives pursuant to an unfortunate incident in which the deceased workers were asked to clean the sewerage by entering thereinto, which is prohibited as per the Government Resolution dated 21 June 2014, are also attached., It is the case of the respondent that out of 152 persons who have lost their lives in the unfortunate incident, for whom a list has been produced, State Authorities have disbursed the amount to the legal heirs of 137 such persons., It is also the case of the State Authorities that the Authorities are trying to find out the details of the legal heirs of those deceased workers who lost their lives in cleaning sewerage., On the other hand, learned advocate Mister Subramaniam Iyer appearing for the petitioner requests time to respond to the further affidavit filed today. Having considered the aforesaid aspect, we adjourn this matter for further adjudication to 19 June 2023., We make it clear that till the next date of hearing, if any of the workers whose services have been availed by any Municipal Corporation, any Municipality or any Gram Panchayat for cleaning sewerage in the concerned area, the Municipal Commissioner of the concerned Corporation, the Chief Officer of the concerned Municipality and the Sarpanch of the concerned Gram Panchayat shall be held liable for the action since by the Government Resolution dated 21 June 2014, such activities have been banned., The respondent Authority shall distribute the amount of compensation as per the scheme of the said Government Resolution to the legal heirs of the deceased workers before the next date of hearing. A copy of this order shall be supplied to the learned advocates appearing for the respective parties. The Registry shall list Writ Petition (Public Interest Litigation) Number 225 of 2016 along with the present civil application on the next date of hearing.
id_617	0	On 22 March 2022, the accused Ms. Kangana Ranaut filed an application under section 205 of the Criminal Procedure Code seeking permanent exemption from her appearance in this matter. She states that she is one of the top actresses of the Hindi film industry and needs to travel to different parts of the country as well as international locations for professional commitments. She alleges that attending the trial dates regularly would require her to travel long distances to Mumbai, resulting in undue hardship and financial loss. She requests a grant of permanent exemption on the ground that the offence is bailable and she will appear through her advocate in the trial. She undertakes to remain present before the Metropolitan Magistrate Court when essentially required and finally requests that her application be granted., Upon receipt of this application on 25 March 2021, the complainant Mr. Javed Akhtar filed his reply on 27 July 2021 (Exhibit 19) after receiving a copy of the application. He strongly opposed the application, classifying it as an attempt to prolong the matter. He contended that the accused is not attending the court despite being in Mumbai and continues to make defamatory statements against the complainant. He argued that section 205 of the Criminal Procedure Code does not give the accused the right to seek permanent exemption even in a bailable offence and that the accused is showing a casual approach towards the court. The complainant requested rejection of the application along with directions for the accused to remain present before the Metropolitan Magistrate Court., The application was filed on 25 March 2021 after the case was taken on board and in the absence of the complainant. The complainant filed his reply on 27 July 2021. The matter was listed on 1 September 2021 with the consent of both sides. On that date, the learned advocates for both sides informed the Metropolitan Magistrate Court that the matter was pending before the Hon'ble High Court for hearing, and therefore the matter was adjourned by consent of the learned advocates and fixed for 14 September 2021. On 14 September 2021 neither party sought a hearing on the application and requested that the matter be kept for 20 September 2021. On 20 September 2021, Mr. Rizwan Siddiquee, the learned advocate for the accused, submitted that he and the accused have no faith and trust in this court and have already filed a transfer petition for the case before the Hon'ble Chief Metropolitan Magistrate, Mumbai. The accused did not attempt a hearing on the application and the matter was kept for 15 November 2021 by consent of both sides. On 15 November 2021 Mr. Rizwan Siddiquee submitted that he will challenge the order of the Hon'ble Chief Metropolitan Magistrate, Mumbai by filing an appeal before the Hon'ble Sessions Court, as his transfer petition was rejected by the Hon'ble Chief Metropolitan Magistrate, Esplanade, Mumbai. By consent of both sides, the matter was kept for 13 December 2021. On 13 December 2021 neither party made a hearing on the application and the matter was kept for 4 January 2022. On 4 January 2022 Mr. Rizwan Siddiquee, for the first time, showed readiness to make a hearing on the application; consequently, by consent of both sides the application was kept for hearing on 1 February 2022. On 1 February 2022 Mr. Rizwan Siddiquee filed written notes of arguments (Exhibit 29). As the accused had filed written notes, the complainant was directed to file written notes, and on 16 February 2022 Mr. Jay Bhardwaj, the learned advocate for the complainant, filed his written notes of arguments (Exhibit 31). After hearing the learned advocates of both sides at length, the Metropolitan Magistrate Court kept the matter for order on 14 March 2022. Due to the court’s engagement in judgments of older matters, the order on this application could not be passed and it was kept for adjudication today. The record shows that the Metropolitan Magistrate Court has not avoided or prolonged adjudication of this application; rather, the parties, particularly the accused, have not pressed the application for a timely hearing. Despite routine submissions by both parties on every date, they have not focused on this application and have conveyed a lack of interest in prosecuting it. After giving all opportunities to both sides, the application is now taken up for order., I have perused the application, the complainant’s statement and the case record very minutely and carefully. I have examined the written notes of arguments submitted by the learned advocates of both sides. I have heard Mr. Rizwan Siddiquee, the learned advocate for the accused, and Mr. Jay Bhardwaj, the learned advocate for the complainant, at length. Both counsel contested this application and highlighted the rights of the accused as well as the complainant. Both referred to various decisions of the Hon'ble Supreme Court and Hon'ble High Courts in support of their respective submissions and contentions., Having analyzed the arguments of both sides, I refer to the judicial decisions relied upon by the accused. Mr. Rizwan Siddiquee placed reliance on the case of Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and others (MANU/SC/0489/2001). In that case the Hon'ble Supreme Court observed that a magistrate is empowered to record the plea of the accused even when counsel makes such plea on behalf of the accused in a case where personal appearance is dispensed with. Although the observations were made in a case under section 138 of the Negotiable Instruments Act, the Court clarified in paragraph 19 that it is within the magistrate’s judicial discretion to dispense with personal appearance of an accused at any stage of a summons case by taking requisite precautions. The next reliance was on the case of Bhakar Sen v. State of Maharashtra and others (MANU/MH/0698/2004), where the Hon'ble Supreme Court emphasized the presence of the accused in court at particular stages of the case and the consequent exemption. Further reliance was placed on State of U.P. v. Poosu and others (MANU/SC/0191/1976), in which the Hon'ble Supreme Court gave guidelines for issuance of non-bailable warrants while balancing personal liberty and the interest of the State. The accused also relied on Inder Mohan Goswami and others v. State of Uttaranchal and others (MANU/SC/7999/2007), where the Hon'ble Supreme Court observed that issuance of a non-bailable warrant may interfere with personal liberty. Another citation was Guru Charan Das Chadda v. State of Rajasthan (MANU/SC/0093/1966), where the Hon'ble Supreme Court laid down the principle that justice should not only be done but must be seen to be done. The accused further relied on K. Mohammad Rizwan v. M/s. Hamdaan Leather (Criminal Revision No. 348/2014), where the Hon'ble Madras High Court held that dismissal of a petition in the absence of the complainant is justified. He also cited Francis Selvin @ Selvakumar & others v. Victoria Shanmugapriya (Criminal Revision No. SR13761/2018 and CMP No. 4548/2018), where the Hon'ble Madras High Court held that the Chief Judicial Magistrate may pass an order on a transfer petition. Additional reliance was placed on Sri Moloy Pramanick v. State of West Bengal (CRR 2206 of 2018), where the Hon'ble Calcutta High Court held that if an accused is surrendered and released on bail after issuance of an arrest warrant, no interference can be made therein. The accused also cited Aditya Lal Mukherjee v. State of West Bengal, where the Hon'ble Calcutta High Court observed matters relating to transfer of a case on appropriate grounds. He further relied on Ajit Kumar Chakraborty and others v. Serampore Municipality (MANU/WE/0188/1988), where the Hon'ble Calcutta High Court observed that it is the discretion of the magistrate issuing a summons to decide whether the accused should appear in person or may be permitted to appear through a lawyer, but the discretion must be exercised judiciously. Additional citations include Sushila Devi v. Sharda Devi (MANU/MP/0199/1960), where the Hon'ble Madhya Pradesh High Court observed that exemption of the accused from appearance in court is a discretion that must be exercised judiciously; Jairam and others v. State of Rajasthan (MANU/RH/0527/1996), where the Hon'ble Rajasthan High Court observed that trial can proceed in the absence of the accused in particular cases; Helen Rubber Industries Kottayam and others v. State of Kerala and others (MANU/KE/0159/1972), where the Hon'ble Kerala High Court held that in specific cases the court should not insist on the appearance of accused persons; N. Dinesan v. K. V. Baby (MANU/KE/0134/1981), where the Hon'ble Kerala High Court gave guidelines for trial of cases in the absence of the accused; Ajay Kumar Bisnoi and others v. M/s. KEI Industries Ltd (Criminal Revision No. 993 and 994 of 2015), where the Hon'ble Madras High Court considered the powers of the court in exempting the accused from appearance; and Puneet Dalmia v. Central Bureau of Investigation, Hyderabad (Criminal Appeal No. 1901/2019), where the Hon'ble Supreme Court gave directions for the exercise of powers under section 205(2) of the Criminal Procedure Code in appropriate cases., Per contra, Mr. Jay Bhardwaj, the learned advocate for the complainant, relied on the case of S. V. Muzumdar and others v. Gujarat State Fertilizer Company Ltd. (2005) SCC 173, where the Hon'ble Supreme Court observed that if personal attendance of the accused is dispensed with under section 205 of the Criminal Procedure Code, it must be ascertained whether a useful purpose would be served by requiring personal attendance or whether the progress of the trial would be hampered by the accused’s absence. He also relied on T. G. N. Kumar v. State of Kerala (2011) SCC 772, where the Hon'ble Supreme Court observed that exemption of the accused under section 205 of the Criminal Procedure Code is at the discretion of the magistrate, considering usefulness or potential hampering of the trial. Finally, he again cited Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and others (MANU/SC/0489/2001), noting that the Supreme Court observed that a magistrate is empowered to record the plea of the accused even when counsel makes such plea on behalf of the accused in a case where personal appearance is dispensed with. This decision is relied upon by both parties., I have gone through all the judicial ratios relied upon by both counsel. With the greatest respect to the Hon'ble Supreme Court and the Hon'ble High Courts, I note that the present case involves an offence of defamation under section 500 of the Indian Penal Code, the complainant is a senior citizen, and the particulars of the offence have not yet been framed. The record shows that the accused has challenged the order of issuance of process from the Hon'ble Sessions Court to the Hon'ble High Court but has not obtained any favourable order. The accused and his advocate have made allegations of bias and lack of trust against this court and have filed three transfer petitions before the Hon'ble Chief Metropolitan Magistrate, Mumbai, the Hon'ble Sessions Court, Dindoshi, and the Hon'ble Joint Principal District and Sessions Judge, Dindoshi, all of which were unsuccessful. Thus, the factual situation of the present case and the cited decisions are altogether different. Most of the decisions relied upon by both sides concern offences under section 138 of the Negotiable Instruments Act, whereas the present case is under section 500 of the Indian Penal Code. While the observations of the Hon'ble Supreme Court and the Hon'ble High Courts are guiding lights for subordinate courts, the factual contexts differ; nevertheless, the observations regarding section 205 of the Criminal Procedure Code will be followed in adjudicating this application., Turning to the merits, it is relevant to note that on her first appearance the accused filed this application seeking permanent exemption from appearance. The Metropolitan Magistrate Court has issued process against the accused for the offence under section 500 of the Indian Penal Code. In view of the orders of the Hon'ble Bombay High Court in Criminal Application No. 545/2021 dated 9 September 2021, the procedure followed by this court in issuance of process has been approved. After several unsuccessful attempts to challenge the order of this court regarding issuance of process and to obtain transfer of the case on allegations of bias, the accused has now sought permanent exemption on the ground of her busy schedule. To date the accused has not appeared for framing of the particulars of the offence, although the matter was specifically kept for her appearance for that purpose. Conversely, the accused is dictating her own terms for the trial. While she may have professional assignments, she cannot claim permanent exemption as a matter of right. She must follow the established procedure of law and the terms of her bail bond. For the fair progress of the trial, her cooperation is essential. The accused appears to have concluded that her presence is not necessary and that her advocate will handle the legal formalities. In this context, I quote the Hon'ble Supreme Court in Dr. Buddhikota Subbarao v. K. Parasram and others (AIR 1996 SC 2687): “No litigant has a right to unlimited drought on the court’s time and public money in order to get his affairs settled in the manner he wishes. However, access to justice should not be misused as a licence to file misconceived and frivolous petitions.” Being a summons case, section 251 of the Criminal Procedure Code mandates that the substance of the accusation be stated to the accused and that she be asked whether she pleads guilty or has any defence. Accordingly, presence of the accused at least once is essential for further progress. If the accused is permanently exempted at this stage, the complainant, a senior citizen, will be seriously prejudiced and the trial will not progress., Regarding dispensing with personal attendance of the accused, section 205 of the Criminal Procedure Code provides: ‘Magistrate may dispense with personal attendance of accused: (1) Wherever a magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. (2) But the magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.’ Section 317 provides: ‘Provision for inquiries and trial being held in the absence of accused in certain cases: (1) At any stage of an inquiry or trial under this Code, if the judge or magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interest of justice, or that the accused persistently disturbs the proceedings in court, the judge or magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the judge or magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately.’, The combined perusal of sections 205 and 317 of the Criminal Procedure Code uniformly suggests that dispensing with personal attendance of the accused and conducting trial in the accused’s absence is discretionary, not mandatory. The accused filed this application at her first appearance and thereafter engaged in challenging the order of issuance of process and making allegations of bias against the court. Despite every opportunity given to her to remain absent, she has not attended the court despite statements made by her learned advocate. As the particulars of the offence have not yet been framed, this application is premature. The record shows that this court has approved all her exemption applications without imposing any cost and has not passed any coercive orders despite her repeated absence and the complainant’s genuine agitation. Allowing permanent exemption at this juncture would encourage further non‑attendance, as the accused’s earlier conduct indicates she will not attend for framing of particulars or further trial. The record also shows that since service of summons the accused has appeared only twice: once when taking the case on board and once to allege bias against the court. She has not appeared with an intent to cooperate for trial. Considering the earlier conduct, the non‑framing of particulars, and the complainant’s strong agitation regarding the accused’s willful absence, the Metropolitan Magistrate Court is compelled not to exercise judicial discretion in favour of the accused at this stage. The court assures the accused that in a specific situation and at a relevant stage of the case, a similar application will be entertained again and exemption on the requisite date will be considered. Accordingly, I am satisfied to reject this application.
id_62	0	Through: Mr. Colin Gonsalves, Senior Advocate with Mr. Gunjan Singh, and Ms. Pragya Ganjoo, Advocates, versus Through: Mr. Rahul Mehra, Standing Counsel (Criminal) and Mr. Chaitanya Gosain, Advocate with Inspector Arun, Cyber Police / Special Cell for the State, Respondent No.1 Dr. Anindita Pujari, Ms. Deval Singh and Mr. Om Narayan, Advocate for Respondent No.2/NCPCR., The hearing was conducted through video conferencing., The petitioner seeks the following orders: (a) directing Respondent No.1 to supply a copy of the FIR to the petitioner immediately; (b) quashing the FIR registered against the petitioner by Delhi Police Cyber Cell; (c) directing the respondent not to take any coercive action against the petitioner pursuant to the FIR; (d) directing initiation of criminal proceedings against Respondent No.2; (e) directing respondents to pay costs of Rs. 50 lakhs for harassing and defaming the petitioner; and (f) any other order in the interest of justice., It is submitted that the petitioner is a journalist and co‑founder of India's most read fact‑checking website news outlet ALT News and, due to the nature of his work, is often abused, threatened and demeaned by people., It is submitted that two separate FIRs have been registered against the petitioner, one by Delhi Police Cyber Cell and another in Chhattisgarh. Regarding the FIR registered in Delhi, on 18‑04‑2020 the petitioner shared an old image of himself wearing traditional Indian attire and Jagdish Singh, from his Twitter handle, replied to this image, “once a jihadi is always a jihadi”. On 07‑07‑2020 the petitioner posted a simple tweet and Jagdish Singh replied with a vulgar image containing the phrase “Tu toh bada madharchod nikla re”. On 06‑08‑2020 the petitioner re‑tweeted an ALT News fact‑check report debunking an old video spreading misinformation on the internet. Respondent No.3, from his Twitter handle, replied to this tweet with abuses. On the same day the petitioner re‑tweeted Jagdish Singh’s tweet displaying a picture visible to the public wherein Jagdish Singh was standing with his daughter, whose face was pixelated/blurred by the petitioner, and wrote: “Hello Jagdish Singh, does your cute granddaughter know about your part‑time job of abusing people on social media? I suggest you change your profile picture.” It is argued that a bare perusal of the tweet would not reveal an intention to harass the minor girl and that the tweet was made on the personal Twitter handle of Respondent No.3 and not to anyone else., Thereafter, Respondent No.3 on 06‑08‑2020 made a complaint to Respondent No.2 against the petitioner. On 08‑08‑2020 the petitioner, through tweets, learned that Respondent No.2 had taken cognizance of the complaint and had recommended legal action against the petitioner. The NCPCR also summoned Twitter India and sought action against the petitioner., Consequently, two FIRs—one in Chhattisgarh and another, the present one in Delhi bearing No. 194/2020 dated 09‑08‑2020 under Sections 67 and 67A of the Information Technology Act, 2000—were registered at the Police Station, Delhi Police, Special Cell., It is the grievance of the petitioner that a copy of the present FIR has never been supplied to him, preventing him from responding to the allegations. Further, it is submitted that two FIRs on similar facts are not maintainable., The learned standing counsel for the State submits that during investigation it was found that a third person owning a Twitter handle, viz. Neolardo Pindiwal, was also indulged in making objectionable and disrespectful comments against Jagdish Singh and his daughter, and the investigation is ongoing to determine whether the said Twitter handle, used by the third person, is in any way related to the petitioner. It is further submitted that although the petitioner claims the face of the daughter of Respondent No.3 was blurred, he has received instructions to state that it was not so., It is further submitted that Twitter India be also directed to co‑operate with the concerned officials of Delhi Police to expedite replies to the queries raised by the Delhi Police. Twitter India is directed accordingly., The respondents No.1 and 4 are therefore directed to supply a copy of the present FIR to the petitioner and to file a status report on or before the next date, with an advance copy to the learned counsel for the petitioner, and the same be placed on record., It is submitted by the learned counsel for Respondent No.2 that Respondent No.2 is only an informant and was performing statutory duties contemplated under Sections 19 and 44 of the Protection of Children from Sexual Offences Act. However, the petitioner alleges that the information annexed at page 40 of the paper book comes from the personal Twitter handle of Respondent No.2 and that such information was made public, probably to harass the petitioner, and therefore Respondent No.2 has been made a party herein., Respondent No.2 may also file a reply, if any, on or before the next date, with an advance copy to the respective counsel., The matter is listed on 08‑12‑2020 and, till then, there shall be no coercive action against the petitioner.
id_621	0	State represented by the Vigilance and Anti-Corruption Wing, Villupuram (Crime No. 4 of 2002). Mr. K. Ponmudi (A1), son of Kandasamy, and Smt. P. Visalatchi (A2), wife of Mr. K. Ponmudi, respondents (A1 and A2) residing at No. 6A, Thirupan Azhvar Street, East Shanmugapuram Colony, Villupuram. A criminal revision case was filed under Section 397 of the Criminal Procedure Code to call for the records of the Principal District Judge, Vellore (Designated Special Court) passed in Special Case No. 3 of 2022 dated 28 June 2023 and to set aside the same., The notice of the Madras High Court was drawn to a recent judgment passed by the learned Principal District Judge, Vellore in Special Case No. 3 of 2022 based on a transfer order issued by the administrative side of the Madras High Court. Substantial proceedings had been conducted by the Principal District Court, Villupuram, and at the far end of the trial the case was transferred to the file of the Principal District Court, Vellore. The Madras High Court felt that the procedure adopted in transferring the case to a different court at the far end of the trial was seriously amiss. Moreover, final arguments were submitted by written submissions on 23 June 2023, and within four days, on 28 June 2023, the Principal District Judge, Vellore delivered a 226‑page judgment acquitting the accused. The learned Principal District Judge, Vellore demitted office shortly thereafter on 30 June 2023., As a judge holding the portfolio for cases relating to Members of Parliament and Members of the Legislative Assembly, I thought it fit to call for the entire records of Special Case No. 3 of 2022 from the Principal District Court, Vellore. On going through the records, the doubts entertained by the Madras High Court regarding the unusual procedure followed in this case were proved correct. The factual backdrop and the sequence of events which ultimately led to the acquittal of the accused are as follows:, Mr. K. Ponmudi was the Minister of Transport and a Member of the Tamil Nadu Legislative Assembly between 13 May 1996 and 30 September 2001. During that period, the Minister is alleged to have acquired and come into possession of properties and other pecuniary resources in his name and in the names of his wife and sons, which were disproportionate to his known sources of income. A First Information Report in Crime No. 4 of 2002 was registered by the Cuddalore District Anti‑Corruption Department on 14 March 2002 under Section 109 of the Indian Penal Code read with Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988, against Ponmudi (A1), his wife Visalakshi (A2), his mother‑in‑law Mrs. P. Saraswathi (A3), A. Manivannan (A4) and A. Nandagopal (A5), who are friends of A1., After completion of the investigation, the Deputy Superintendent of Police, Vigilance and Anti‑Corruption, Cuddalore, laid a final report against the accused before the Chief Judicial Magistrate (Special Judge), Villupuram. The case was thereafter taken on file as Special Case No. 3 of 2003. The prosecution recorded the statements of 228 witnesses and collected 318 documents, which were produced before the Special Judge., On appearance, the accused filed Criminal Miscellaneous Petition Numbers 374, 375, 383 and 376 of 2004 under Section 239 of the Criminal Procedure Code to obtain discharge from the case. The learned Chief Judicial Magistrate, by an order dated 21 July 2004, allowed these petitions. The State of Tamil Nadu assailed these orders before the Madras High Court in Criminal Revision Case Numbers 1317, 1318, 1319 and 1320 of 2004. By a common order dated 11 August 2006, Justice S. Ashok Kumar dismissed the revisions and affirmed the orders of discharge. The matter was carried on appeal to the Supreme Court of India in Civil Appeals 22‑23 & 26‑28 of 2014, reported as State of Tamil Nadu v. N. Suresh Rajan and others (2014 11 SCC 709). The common orders of Justice S. Ashok Kumar were set aside by the Supreme Court with the following observations: “While passing the impugned orders, the court has not sifted the material for the purpose of finding out whether there is sufficient ground for proceeding against the accused or whether that would warrant a conviction. We are of the opinion that this was not the stage where the court should have appraised the evidence and discharged the accused as if it were passing an order of acquittal. Further, a defect in investigation itself cannot be a ground for discharge. In our opinion, the impugned order suffers from grave error and calls for rectification.” Consequently, Special Case No. 3 of 2003 was revived and the accused were directed to appear before the court on 3 February 2014., It is seen from the records that on 31 March 2015 the Trial Court framed charges against A1, A2 and A4. A3 and A5 had passed away in the meantime. Consequently, the designations of A1, A2 and A4 were re‑assigned as A1‑A3, and charges were framed against them for offences under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, read with Section 109 of the Indian Penal Code. On 6 May 2015, examination of witnesses commenced before the Special Court for Prevention of Corruption Act Cases, Villupuram., Pursuant to the directions of the Supreme Court in Ashwini Kumar Upadhyay v. Union of India (Writ Petition (Civil) 699 of 2016), the trial of cases relating to Members of Parliament and Members of the Legislative Assembly was transferred to a Designated Special Court. The case was transferred to the file of the Principal District Judge, Villupuram (Designated Special Court for Trial of Criminal Cases relating to elected members of Parliament and members of the Legislative Assembly of Tamil Nadu) and renumbered as Special Case No. 2 of 2019. Records further reveal that by April 2022 the prosecution had examined as many as 169 witnesses., When the matter stood thus, on 26 April 2022 the Principal District Judge, Villupuram wrote a letter to the Madras High Court requesting permission to conduct a special sitting on 2 May 2022, 4 May 2022, 5 May 2022 and 6 May 2022 from 10:00 a.m. to 12:00 noon for expeditious completion of the case in view of the directions issued by the Supreme Court in Ashwini Kumar Upadhyay v. Union of India (Writ Petition (Civil) 699 of 2016). On 27 April 2022, Prosecution Witness 170 was examined on the side of the prosecution., The request of the Principal District Judge, Villupuram was considered and rejected by the Madras High Court by an official memorandum in R.O.C. No. 49596‑A‑2022‑B2 dated 7 June 2022. Curiously, the High Court refused permission by communication dated 7 June 2022 when the dates for which permission had been sought had already expired. The official memorandum not only communicated the refusal of permission but also injuncted the Principal District Judge, Villupuram from exercising her judicial powers over the case, directing that the case should not be taken up until further orders., It is seen from the records that a month later, in July 2022, the then Administrative Judges of Villupuram sent a note dated 6 July 2022 and 7 July 2022 directing that the case pending on the file of the Principal District Judge, Villupuram be transferred to the file of the Principal District Judge, Vellore. This note was placed before the then Hon’ble Chief Justice, who approved the note on 8 July 2022. On the basis of the aforesaid note, the Madras High Court issued another official memorandum in R.O.C. No. 49596‑A‑2022 dated 12 July 2022 directing the Principal District Judge, Villupuram to transfer the case to the file of the Principal District Judge, Vellore. On 16 July 2022, the Principal District Judge, Villupuram transferred the case files to the Principal District Judge, Vellore in obedience to the orders of the High Court., On 20 October 2022, the Principal District Judge, Vellore wrote to the Registrar General of the Madras High Court intimating that the case files had been received and that a new case number, Special Case No. 3 of 2022, was assigned. On 23 January 2023, Prosecution Witness 171 was examined-in-chief on the side of the prosecution and was also cross‑examined. On 20 February 2023, Prosecution Witness 172 was examined in chief and later cross‑examined. On 10 April 2023, A1 and A2 were questioned under Section 313(1)(b) of the Criminal Procedure Code. They denied the incriminating circumstances put to them and submitted a written statement under Section 313(5) of the Criminal Procedure Code., By 6 June 2023, the case, which had lingered for years, began to move with great alacrity. Defence Witness 1 was examined on the side of the defense on 6 June 2023. On 23 June 2023, written submissions were made on the side of the accused, and on 28 June 2023, within four days, the Principal District Judge, Vellore marshalled the evidence of 172 prosecution witnesses and 381 documents and delivered a 226‑page judgment acquitting all the accused. Two days thereafter, on 30 June 2023, the Principal District Judge, Vellore retired., The narrative reveals a shocking and calculated attempt to manipulate and subvert the criminal justice system. Having examined the record, I find that there is not even a speck of legality in anything that has been done from 7 June 2023 when the High Court administration injuncted the Principal District Judge, Villupuram from proceeding with the case. The dubious and curious process of transfer followed by the trial and judgment of the Principal District Judge, Vellore is wholly illegal and a nullity in the eyes of law. These illegalities having come to my notice, I have decided to exercise my powers under Section 397 and Section 401 of the Criminal Procedure Code and Article 227 of the Constitution suo motu, as I find that there is a calculated attempt to undermine and thwart the administration of criminal justice., There are several questions looming large. The first is: where did the Madras High Court obtain the power to issue an official memorandum on 7 June 2022 injuncting the Principal District Judge, Villupuram from proceeding with the case? It will be recalled that, by her letter dated 26 April 2022, the Principal District Judge, Villupuram had merely sought permission to sit on 2 May 2022, 4 May 2022, 5 May 2022 and 6 May 2022, which were court holidays, from 10:00 a.m. to 12:00 noon for expeditious completion of the case in view of the directions issued by the Supreme Court in Ashwini Kumar Upadhyay v. Union of India (Writ Petition (Civil) 699 of 2016). It is strange that the Madras High Court took exception to a request made by the learned judge to comply with the directives of the Supreme Court. By 7 June 2022, when the official memorandum was issued, the request had become infructuous. What was the hurried attempt to restrain the Principal District Judge, Villupuram from hearing a corruption case that had been pending for years? The use of an official memorandum to restrain a Principal District Court from exercising judicial functions is unprecedented. We have heard of Chief Justice Douglas Young staying proceedings before a magistrate through a telegram while holidaying in Simla; that order was set aside by the Privy Council in the celebrated case of the Emperor v. Khawaja Nazir Ahmed (AIR 1945 PC 18). While it may be possible to interfere with judicial proceedings of a lower court on the judicial side, to interfere through official memorandums on the administrative side is palpably illegal and without any legal sanctity., The second question is where the Administrative Committee, comprising two Hon’ble Judges, derived the power on the administrative side to transfer a pending criminal case from one district to another by way of a note. The power to transfer a criminal case from one district to another is a judicial power vested in a High Court under Section 407 of the Criminal Procedure Code. In Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460, the Supreme Court observed: “The High Court does have the power to transfer cases and appeals under Section 407 of the Criminal Procedure Code, which is essentially a judicial power. Section 407(1)(c) provides that, where it will tend to the general convenience of the parties or witnesses, or where it is expedient for the ends of justice, the High Court may transfer such a case for trial to a Court of Session.” It is therefore clear that the power under Section 407 of the Criminal Procedure Code is a judicial power that cannot be exercised by judges on the administrative side by way of an administrative note., In Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460, it was observed that the High Court also exercises the power to transfer cases on the administrative side under Article 227 of the Constitution. Could it then be said that the two administrative judges were exercising powers under Article 227 by way of a note to transfer the case from the Principal District Judge, Villupuram to the Principal District Judge, Vellore? The power of administrative superintendence under Article 227 is vested in the High Court, i.e., the Full Court, and not in any individual judge. In Kamlesh Kumar, the administrative order of transfer was passed pursuant to a resolution by a Full Court of the Jharkhand High Court on 25 April 2002. Similarly, in Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330, the Supreme Court upheld an order of transfer passed on the administrative side under Article 227 pursuant to a resolution passed by the Full Court of the High Court of Chhattisgarh. These decisions show that the administrative power of transfer under Article 227 can be exercised only by the Full Court and not by one or more judges on the administrative side., The following passage from the decision of the Division Bench of the Delhi High Court in Delhi Chemicals and Pharmaceutical Works Private Limited v. Himgiri Realtors Private Limited, 2021 SCC Online Del 3603, also fortifies the aforesaid view: “The Court, in Bhandari Engineers & Builders Pvt. Ltd. supra, has drawn power from Article 227 of the Constitution of India to issue the directions therein. Article 227 vests in every High Court the power of superintendence over all courts and tribunals throughout its territory, in relation to which it exercises jurisdiction, and to make and issue general rules and prescribe formats for regulating the practice and proceedings of such courts. It must be noted that the power is vested in the High Court, which, in our view, means the Full Court comprising all the judges of the High Court and not in individual judges presiding over different benches as per the roster allocation by the Hon’ble Chief Justice.”, The High Court of Madras, being a chartered High Court, is also vested with power under Clause 29 of its Letters Patent to transfer criminal cases. Clause 29 reads: “The High Court may direct the transfer of a case from one Court to another and we further ordain that the said High Court shall have power to direct the transfer of any criminal case or appeal from any Court to any other Court of equal or superior jurisdiction, and also to direct the preliminary investigation or trial of any criminal case by any officer or Court otherwise competent to investigate or try it, though such case ordinarily belongs to the jurisdiction of some other officer or Court.” It is apparent that Clause 29 is akin to Section 407 of the Criminal Procedure Code and vests power in the High Court, on the judicial side, to transfer a criminal case provided the transferee court is also competent to try it. This is also true of the administrative power under Article 227 (see Rite Hotels (Mysore) Ltd. v. State of Karnataka, 1984 SCC OnLine Kar 3 : AIR 1985 Kar 149). In the present case, the transfer was made to the Principal District Judge, Vellore for no reason whatsoever. The jurisdiction of a criminal court for inquiries and trials is statutorily prescribed under Chapter XIII of the Criminal Procedure Code. It is not open to the High Court, either under Section 407 of the Criminal Procedure Code or under Article 227, to cherry‑pick cases and arbitrarily transfer them to any court without reason., It is therefore clear that there is no authority, either under the Constitution, the Letters Patent, or any provision of law, authorising two judges to exercise powers on the administrative side to transfer a pending criminal case from one district to another by way of a note. Consequently, the note of the Administrative Judges dated 6 July 2022 and 7 July 2022 directing the transfer of the case from the Principal District Court, Villupuram to the Principal District Court, Vellore is ex‑facie illegal and non est in law., The next question is whether the approval of the Hon’ble Chief Justice on 8 July 2022 clothes the note of the Administrative Judges with any legality. The legal position regarding the office of the Hon’ble Chief Justice is well settled. The Chief Justice, on the judicial side, is the first among equals. On the administrative side, the administrative control of the High Court vests in the Chief Justice alone. The Chief Justice is the master of the roster; he alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted (see State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1). The Chief Justice is the Master of the Roster vis‑vis the benches in the High Court. This does not mean that the Chief Justice enjoys administrative power to transfer a criminal case pending in a district court to another district. No such power exists or has been shown to exist by law or convention. Consequently, the approval of the Hon’ble Chief Justice on 8 July 2022 does not clothe the note of the Administrative Judges with any legality. Accordingly, the official communication dated 12 July 2022 directing the transfer of the case from the Principal District Judge, Villupuram to the Principal District Judge, Vellore, the transfer to the Principal District Judge, Vellore under the orders of the Principal District Judge, Villupuram, followed by the trial and the 226‑page judgment delivered on 28 June 2023, are all coram non‑judice., The next question is whether this Court should suo motu exercise its powers under Article 227 of the Constitution and Sections 397 and 401 of the Criminal Procedure Code to interfere and set right the illegalities. The High Court cannot abjure its duty to prevent miscarriage of justice by refraining from interference where it is imperative. The principles governing the exercise of jurisdiction are no longer res integra. In Nadir Khan v. State (Delhi Administration), (1975) 2 SCC 406, the suo motu powers of the High Court were explained as follows: “It is well known and has been ever recognised that the High Court is not required to act in revision merely through a conduit application at the instance of an aggrieved party. The High Court, as an effective instrument for the administration of criminal justice, keeps a constant vigil and wherever it finds that justice has suffered, it takes upon itself as its bounden duty to act suo motu where there is flagrant abuse of the law. The character of the offence and the nature of disposal of a particular case by the subordinate court prompt remedial action on the part of the High Court for the ultimate social good of the community, even though the State may be slow or silent in preferring an appeal provided for under the new Code. The High Court in a case of public importance, for example in food adulteration cases, may act suo motu on perusal of newspaper reports disclosing grossly inadequate sentences. This position was true under the old Code of 1898 and has not been denied by Parliament under the new Code. Although the new Code expressly gives the State a right under Section 377 of the Criminal Procedure Code to appeal against inadequacy of sentence, that does not exclude the revisional jurisdiction of the High Court to act suo motu for enhancement of sentence in appropriate cases. What constitutes an appropriate case is left to the discretion of the High Court. The Court will be slow to interfere with such discretion under Article 136 of the Constitution.”, In Krishnan v. Krishnaveni, (1997) 4 SCC 241, a three‑judge bench of the Supreme Court observed that it is the salutary duty of the High Court to interfere in a criminal proceeding where a failure of justice has occurred. The Court held: “The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401 upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice, to correct procedural irregularities, or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court is therefore very wide; however, it must be exercised sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). When the High Court notices a failure of justice, misuse of judicial mechanism, or an incorrect sentence or order, it is its salutary duty to prevent abuse of process, miscarriage of justice, or to correct irregularities committed by an inferior criminal court.” In Jagannath Choudhary v. Ramayan Singh, (2002) 5 SCC 659, the Supreme Court observed: “The High Court possesses a general power of superintendence over the actions of courts subordinate to it. On its administrative side, this is the power of superintendence; on the judicial side, it is the duty of revision. The High Court can at any stage, even on its own motion, call for records and examine them when illegalities or irregularities resulting in injustice are brought to its notice. This right is as much a part of the administration of justice as its duty to hear appeals, revisions, and interlocutory applications, as well as its right to exercise powers of administrative superintendence.” In CBI v. Ashok Kumar Aggarwal, (2013) 15 SCC 222, referring to Sections 397 and 401 of the Criminal Procedure Code, the Supreme Court observed: “These two sections do not create any right in favour of the litigant but only empower the High Court to ensure that justice is done in accordance with recognised principles of criminal jurisprudence.” From the foregoing discussion, it is clear that where a manifest illegality by a criminal court results in gross failure of justice, it is the bounden duty of the High Court as a constitutional court to set right the illegality and to maintain public confidence in the criminal justice system. In Y. Balaji v. Karthik Desari, 2023 SCC Online SC 645, the Hon’ble Supreme Court observed: “The investigation and trial of a criminal case cannot be converted by the complainant and the accused into a friendly match. If they are allowed to do so, the umpire will lose his wicket. By the same token, the public must never get the impression that the umpire is taking sides lest the whole game be reduced to a farce.”, In view of the foregoing discussion, the following directions are issued: (a) The Additional Public Prosecutor shall take notice on behalf of the State. (b) The Registry is directed to issue notice to the accused in Special Case No. 3 of 2002, on the file of the Principal District Court, Vellore, who are the second and third respondents in this criminal revision, for hearing on 7 September 2023. (c) The Registry is directed to place a copy of this order before the Hon’ble.
id_623	0	WPCR No. 579 of 2022 Podiyaami Bhima Son of Deva, aged about 30 years, Resident of Juhupara, Village Minpa, Police Station Chintagupha, District Sukma, Chhattisgarh, Petitioner Versus State of Chhattisgarh Through The Secretary, Home Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nawa Raipur, District Raipur, Chhattisgarh; Collector, Sukma, District Sukma, Chhattisgarh; Superintendent of Police, Sukma, District Sukma, Chhattisgarh; Superintendent of Jail, District Jail Dantewada, District Dantewada, Chhattisgarh; Station House Officer, Police Station Chintagupha, District Sukma, Chhattisgarh; Omprakash, Assistant Sub Inspector, posted at Police Station Chintagupha, District Sukma, Chhattisgarh, Respondents., For the petitioner: Mr. Praveen Dhurandhar, Advocate. For the State/Respondents No.1 to 5: Ms. Madhunisha Singh, Deputy Attorney General. Honourable Shri Ramesh Sinha, Chief Justice. Honourable Shrimati Rajani Dubey, Judge. Order on Board per Ramesh Sinha, Chief Justice dated 14 July 2023., Heard Mr. Praveen Dhurandhar, learned counsel for the petitioner and Ms. Madhunisha Singh, learned Deputy Attorney General for the State/respondents No.1 to 5., By way of this writ petition, the petitioner has prayed for the following reliefs: (a) That the Honourable Court may kindly direct the respondent State to compensate the petitioner adequately for illegal detention of the petitioner where, due to the fault of State authorities, he served in jail for 7 months 26 days; (b) That the Honourable Court may kindly direct the respondent State to take criminal and departmental action against the culpable police authorities who were involved in illegal detention of the petitioner; (c) That the Honourable Court may kindly direct a judicial enquiry over the issue; (d) That the Honourable Court may kindly grant any other relief as it may deem fit and appropriate., Learned counsel for the petitioner submits that the Court of Additional Sessions Judge, Dantewada, District South Bastar, Dantewada, vide order dated 03 March 2022, found that the detention of the petitioner was illegal as he was not involved in the criminal case which was registered against a person known by the name of the petitioner, and the officer concerned did not take any caution while arresting the petitioner who was not wanted in the criminal case; the court ordered an enquiry against the erring official for this act., Learned State counsel submits that, as per the return filed by the State, it is a case of illegal detention and a departmental enquiry was initiated by the competent authority against the officer who was guilty of arresting the petitioner in the present case though he was not wanted in the said case, but during the enquiry the said official Omprakash Nareti died., Heard learned counsel for the parties and perused the material available on record., The Honourable Supreme Court of India, in the matter of Rudul Sah v. State of Bihar and another, AIR 1983 SC 141, held in paragraph 10 as follows: \We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may, if so advised, file a suit to recover damages from the State Government. Happily, the State's Counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense that a civil court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip‑service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield. If civilization is not to perish in this country as it has perished in some others too well‑known to suffer mention, it is necessary to educate ourselves into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its officers to the petitioner's rights. It may have recourse against those officers.\, Taking into consideration the great harm done to the petitioner by the State authorities, he remained in jail for a period of about 8 months whereas he was not wanted in any criminal case and was arrested on a wrong identity and was released by the learned Additional Sessions Judge vide order dated 03 March 2022, who observed the careless act of the erring police officers and directed the Superintendent of Police concerned to take action against the police personnel concerned; we are of the opinion that the State has to pay compensation of Rs. 1,00,000/- to the petitioner for illegal detention within a period of two months., With the aforesaid direction, the instant petition stands disposed of.
id_624	0	Date of decision: 01 September 2021. Petitioners: Ms. Tara Narula, Ms. Nupur and Ms. Aparajita Sinha, Advocates. Respondent: Mr. Anuj Handa, Special Public Prosecutor, with Mr. Sarang Shekhar, Advocate., CRL.M.C. 1197/2021 has been filed for quashing FIR No. 112/2020, dated 02 March 2020, registered at Police Station Jaffarabad for offences under Sections 147, 148, 149, 436 and 34 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984, and subsequent charge‑sheet dated 07 May 2020 registered as Criminal Case No. 2039/2020 and committed as Special Court No. 71/2021, with summoning orders dated 08 May 2020, 28 October 2020, 10 November 2020, 19 November 2020, 03 December 2020, 18 December 2020, 12 January 2020, and orders dated 10 February 2020, 10 March 2021 passed in Special Court No. 71/2021., CRL.M.C. 1198/2021 has been filed for quashing FIR No. 132/2020, dated 05 March 2020, registered at Police Station Jaffarabad for offences under Sections 147, 148, 149, 436, 480 and 34 of the Indian Penal Code and subsequent charge‑sheet registered as Criminal Case No. 1664/2020 and summoning order dated 29 January 2021., CRL.M.C. 1230/2021 has been filed for quashing FIR No. 107/2020, dated 01 March 2020, registered at Police Station Jaffarabad for offences under Sections 147, 148, 149, 436 and 34 of the Indian Penal Code and subsequent charge‑sheet dated 07 May 2020 and supplementary charge‑sheet dated 02 December 2020 registered as Criminal Case No. 2949/2020 and committed as Special Court No. 102/2021, with summoning orders dated 08 May 2020, 05 October 2020, 05 November 2020, 18 November 2020, 16 February 2021, and orders dated 02 March 2021 and 16 March 2021 passed in Special Court No. 102/2021., CRL.M.C. 1233/2021 has been filed for quashing FIR No. 113/2020, dated 02 March 2020, registered at Police Station Jaffarabad for offences under Sections 147, 148, 149, 436 and 34 of the Indian Penal Code and Sections 3 and 4 of the Prevention of Damage to Public Property Act, and subsequent charge‑sheet dated 07 May 2020 registered as Criminal Case No. 2043/2020 and committed as Special Court No. 49/2021, with summoning orders dated 08 May 2020, 22 May 2020, 15 October 2020, 18 November 2020, 28 November 2020, 14 December 2020, 24 December 2020, 06 January 2021, 19 January 2021, and orders dated 02 February 2021, 11 February 2021, 24 February 2021 and 10 March 2021 passed in Special Court No. 49/2021., The main facts in FIR No. 106/2020 relate to a complaint of arson at house No. T‑209B, Main Road, Maujpur Area, near Victor Public School, Delhi. The complainant stated that on the evening of 24 February 2020 he returned home and found the house set on fire. A fire brigade truck bearing number 926225 was called and the fire was doused. The articles in the house valued at Rs 7‑10 lakh were charred. The accused were not known to the complainant., FIR No. 107/2020 records that the complainant reached his home, T‑209B, Main Road, Maujpur Area, near Victor Public School, Delhi, on the evening of 24 February 2020 and observed the house ablaze, causing damage worth Rs 7‑10 lakh. A fire brigade truck bearing number 926225 was called to douse the fire. The complainant did not know the culprits., FIR No. 112/2020 was filed on 02 March 2020 at 2:36 pm at Police Station Jaffarabad. The complainant, resident of T‑210, Main Road, Maujpur, near Victor Public School, stated that on the morning of 25 February 2020 at 10:00 am he reached his home and saw it burning. The estimated loss was between Rs 8‑12 lakh. The complainant did not know who started the fire., FIR No. 113/2020 was filed on 02 March 2020 at 2:45 pm at Police Station Jaffarabad. The complainant stated that on 25 February 2020 at 10 am he reached his residence, T‑209, Main Road, Maujpur, near Victor Public School, and found the house largely burnt and still burning. A fire brigade truck bearing number 926225 was dousing the fire. The estimated loss was Rs 8‑12 lakh. The complainant could not specifically identify the accused., FIR No. 132/2020 was filed on 05 March 2020 at 4:20 pm at Police Station Jaffarabad. The complainant, a fruit seller residing at Gali No. 7, B Block, Karampuri, Vistar Delhi, North East Delhi, and tenant of T‑209, Main Road, Maujpur, near Victor Public School, stated that on 25 February 2020 a mob entered his godown, pilfered fruit stock worth Rs 2 lakh along with four batteries and handcarts, and burnt the premises., Ms. Tara Narula, learned counsel for the petitioner, contended that all five FIRs relate to the same unit, T‑209B, Main Road, Maujpur, near Victor Public School. She argued that FIRs 106/2020, 107/2020, 112/2020 and 113/2020 were filed by different members of the same family, that the same fire brigade truck bearing number 926225 extinguished the fire, and that consecutive FIRs could not be filed for the same offence, citing the principle in T.T. Antony v. State of Kerala, (2001) 6 SCC 181, which holds that more than one FIR cannot be registered for one offence., Mr. Anuj Handa, learned Special Public Prosecutor for the State, submitted that the petition is ill‑conceived and deserves summary dismissal. He maintained that the five FIRs – 106/2020, 107/2020, 112/2020, 113/2020 and 132/2020 – pertain to distinct properties and that the subject matter of each FIR is different. He relied on a site map showing that each arson incident occurred in distinct properties and that the damages were suffered by different residents. He further submitted that the complainant in FIR No. 132/2020 is a costermonger who did not reside at T‑209B but had a warehouse in the same premises, whose goods were stolen and the premises burnt., The learned counsel for the petitioner and the learned Special Public Prosecutor for the State were heard and the material on record was perused., All the aforementioned FIRs are registered with respect to a single incident of fire at T‑209B, Maujpur Area, near Victor Public School. The FIRs are identical in content and constitute a facsimile of one another, pertaining to the same occurrence. They all describe a fire started mischievously in one house, spreading to immediate neighboring premises and floors of the same house, occurring on 24 February 2020, causing monetary loss to each complainant residing in parts of the building and the immediate neighbourhood. Lalit Kumar, the complainant in FIR No. 113/2020, stated that the premises was his ancestral property divided into four portions pursuant to a family arrangement., The FIRs state that the arson was extinguished by the same fire brigade truck bearing unique number 926225. The charge‑sheet and site plan show that all the properties are part of the same premises or are in very close proximity., A careful perusal of the site map shows that on 24 February 2020 a mob entered the compound, ransacked it and set it ablaze. Although the properties may be distinct, they are located within one compound, most of which belong to the same family and were divided among family members., In T.T. Antony v. State of Kerala, (2001) 6 SCC 181, the Supreme Court held that a balance must be struck between the fundamental rights under Articles 19 and 21 of the Constitution and the police power to investigate a cognizable offence. Section 173(8) of the Code of Criminal Procedure empowers the police to make further investigation and forward further reports to the magistrate. However, the power of investigation does not justify subjecting a citizen to fresh investigation for the same incident after successive FIRs, which would be beyond the purview of Sections 154 and 156 CrPC and constitute an abuse of statutory power. Such fresh investigation may be a fit case for exercise of power under Section 482 CrPC or Article 226/227 of the Constitution., In Babubhai v. State of Gujarat, (2010) 12 SCC 254, the Supreme Court observed that the investigating agency should proceed only on the information first entered in the police station diary under Section 158 CrPC, and that subsequent information falls under Section 162 CrPC. The investigating officer may investigate connected offences found to have been committed in the same transaction, filing one or more reports under Section 173 CrPC. If further information pertaining to the same incident arises after submission of the report under Section 173(2), the officer may make further investigation but should obtain leave of the court and forward further evidence under Section 173(8). More than one piece of information concerning the same incident cannot be treated as a separate FIR, as that would not conform to the scheme of the CrPC., In Anju Chaudhary v. State of U.P., (2013) 6 SCC 384, the Supreme Court held that the language and scheme of Sections 154, 156 and 190 of the Code of Criminal Procedure do not permit more than one FIR for the same occurrence. The first information report initiates the criminal investigation, culminating in a police report under Section 173(2). A second FIR may be registered only when the incident is separate, the offences are different, or the subsequent crime is of a magnitude that does not fall within the scope of the first FIR. The principle is akin to double jeopardy and prevents abuse of police power. Re‑investigation or de novo investigation is beyond the competence of the investigating agency and may be exercised by the magistrate under Section 167(2) of the Code., The law, as settled by the Supreme Court, precludes a second FIR and fresh investigation for the same cognizable offence or same occurrence giving rise to one or more cognizable offences., All the places that were set on fire and looted are within the same compound enclosed by one boundary wall. Although there may be discrepancies regarding the width of the passage or the exact location of the fire, both sides agree that it is within one compound. The complainant in FIR No. 113/2020 stated that the property is an ancestral property subdivided pursuant to a family arrangement. The mob entered the compound and set fire at different places within the same compound. The same fire brigade truck bearing number 926225 came to douse the fire. Therefore, it cannot be said that there are five separate incidents; five separate FIRs for the same incident would be contrary to Supreme Court law. The charge‑sheets filed in the respective FIRs are more or less identical and the accused are the same. Any material against the accused can be placed on record in FIR No. 106/2020., In view of the said principles and precedents, FIR No. 106/2020 registered on 01 March 2020 at Police Station Jaffarabad, FIR No. 107/2020, FIR No. 112/2020, FIR No. 113/2020 and FIR No. 132/2020, all registered at Police Station Jaffarabad, and all proceedings emanating therefrom are hereby quashed and set aside., Accordingly, the petitions are disposed of along with the pending applications.
id_625	0	22.02.2024 Court No. 238. Writ Petition (Civil) Application No. 4742 of 2024. Mahesh Jethmalani, Senior Advocate, Sandipan Ganguli, Senior Advocate, Ravi Sharma, Advocate, Saket Shukla, Advocate, Apalak Basu, Advocate, Zoeb Cutlerywala, Advocate, Joy Pareira, Advocate, Smita Mukheerjee, Advocate, Saheli Bose, Advocate for the petitioner. Kishore Datta, Learned Advocate General, Amitesh Banerjee, Learned Senior State Counsel, Tarak Karan, Advocate, Debanghi Dinda, Advocate for the State., The petitioner, a journalist covering the incidents in Sandeshkhali, located in North 24-Parganas, West Bengal, was arrested by the police on the evening of February 19, 2024, following a complaint lodged by a local woman. The complaint, filed with the Officer-in-Charge of the Sandeshkhali Police Station, alleged, inter alia, that on February 19, 2024, while she was not properly dressed and was having her food, the petitioner kicked the front door of her house and started creating a ruckus. When she peeked out, the petitioner began asking many objectionable questions. As she declined to answer, the petitioner started pulling her nightgown and verbally abused her with foul language. The petitioner cried and her sister-in-law came out. Thereafter, the petitioner, along with his cameraman, left the place., Following the said complaint, the Sandeshkhali Police Station registered a First Information Report No. 38 of 2024 dated February 19, 2024, under Sections 447, 448, 354, 354C, 509, 506 and 34 of the Indian Penal Code. His bail prayer was turned down by the learned Additional Chief Judicial Magistrate (In-charge), Basirhat Court, on February 19, 2024. The learned Magistrate granted the prayer for police custody by the Investigating Officer till February 23, 2024., By filing this writ petition under Article 226 of the Constitution of India, the writ petitioner seeks to quash the proceedings of the aforesaid criminal case and has also prayed for his release on bail. Mahesh Jethmalani, learned Senior Advocate appearing for the petitioner, has submitted that the entire proceeding suffers from malice. The first information report or the complaint does not, prima facie, constitute any offence or make out a case against the accused. He argues that the FIR and the material collected in support of the same do not disclose commission of any offence and make out a case against the accused. He further argues that the criminal proceeding is manifestly attended with mala fide and is maliciously instituted with an ulterior motive. Jethmalani further argues that in the present case, the highest alleged offence is punishable with imprisonment for less than seven years. Therefore, the police could not have arrested the petitioner without issuing a notice under Section 41A of the Code of Criminal Procedure, 1973. He further argued that in dealing with a case for quashing of a First Information Report, the High Court should not confine itself to the allegations made in the FIR. In frivolous or vexatious proceeding, the Court owes a duty to look into other attending circumstances emerging from the record of the case. Jethmalani has argued that a prayer for bail and quashing the criminal proceedings by invoking the jurisdiction of this High Court under Article 226 of the Constitution of India are maintainable regardless of any alternative remedy., To demonstrate that the allegations made in the FIR are utterly false, the video recording of the alleged incident as recorded by the accompanying cameraman of the petitioner was played before the High Court. In support of his submission, Jethmalani relied upon the following judgments reported at (2021) 2 SCC 427 (Arnab Manoranjan Goswami v. State of Maharashtra), (1984) 3 SCC 161 (Bandhua Mukti Morcha v. Union of India), (2022) 10 SCC 51 (Satender Kumar Antil v. Central Bureau of Investigation) and the judgment passed in Criminal Appeal No. 2341 of 2023 (Mahmood Ali v. State of Uttar Pradesh)., Conversely, Kishore Datta, learned Advocate General, has argued that the plain reading of the FIR discloses a cognizable offence. By making a reference to the judgment reported at (2012) 4 SCC 1 (Lalita Kumari v. Government of Uttar Pradesh), he argued that it was obligatory on the part of the police to register a First Information Report following the complaint lodged. Datta produced the case diary to demonstrate that the complainant’s statement recorded under Section 164 of the Code of Criminal Procedure, 1973, corroborated the allegations. Datta argued that since a competent jurisdictional Magistrate has declined to grant bail to the petitioner by a judicial order, the same should be challenged by the petitioner under the provisions of the Code of Criminal Procedure, 1973. He contended that the jurisdiction of the Writ Court should not be invoked to interfere with a judicial order., I am of the view that the petitioner should be granted bail and the present criminal case initiated against him should be stayed., Before the learned Magistrate in the Court below, the Investigating Officer sought to justify the prayer for police custody to recover the photographs of the victim lady taken by the associate cameraman to reconstruct a scene of crime. Fortunately, the entire incident of February 19, 2024, was recorded by the cameraman accompanying the petitioner. The videograph was produced before the High Court and was played in open Court in the presence of the Investigating Officer. The videograph unequivocally shows that the petitioner and his cameraman were positioned outside the residential premises of the complainant. An interview with the complainant was conducted in the presence of another female resident keeping a reasonable distance. The questions posed during the interview were answered by the complainant. Subsequently, the petitioner and his cameraman exited the premises. Evidently, the petitioner never approached the complainant or the other female resident, let alone pulled the nightgown of the complainant., A thorough examination of the videograph dispels any doubts regarding the falsity of the allegations presented in the First Information Report or the statement provided under Section 164 of the Code of Criminal Procedure, 1973, by the complainant, confirming them to be unfounded and false. This High Court has reviewed the videograph and the Investigating Officer has also acknowledged in open Court that the female interviewed was the complainant and the petitioner was the interviewer. Though Datta joined issue with regard to the consideration of the videograph while dealing with this case for quashing of a First Information Report, I am of the clear view that this High Court is not precluded from taking into consideration the said videograph in view of the observation of the Supreme Court in Criminal Appeal No. 2341 of 2023 (Mahmood Ali & Ors. v. State of Uttar Pradesh & Ors.)., The Supreme Court observed: At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with an ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR or complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR or complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR or complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the Code of Criminal Procedure or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation or registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged., In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two‑Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held: Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto., In R.P. Kapur v. State of Punjab, AIR 1960 SC 866, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings: (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the First Information Report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge., When dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code of Criminal Procedure, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or needless harassment. The Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short‑circuit a prosecution and bring about its sudden death., I am also of the view that the Investigating Agency, in compliance with the judgment of the Supreme Court reported at (2014) 8 SCC 273 (Arnesh Kumar v. State of Bihar), ought to have issued a notice under Section 41A of the Code of Criminal Procedure, 1973, against the petitioner when none of the alleged offences was punishable with imprisonment for seven years or more. The issue of maintainability of a writ petition with a prayer for bail and quashing of a criminal proceeding has been clearly answered by the Supreme Court in (2021) 2 SCC 427 (Arnab Manoranjan Goswami v. State of Maharashtra)., While considering an application for the grant of bail under Article 226 in a suitable case, the High Court must consider the settled factors which emerge from the precedents of this Court. These factors can be summarised as follows: The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction; Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses; The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice; The antecedents of and circumstances which are peculiar to the accused; Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; The significant interests of the public or the State and other similar considerations., These principles have evolved over a period of time and emanate from the following decisions among others: Prahlad Singh Bhati v. State (NCT of Delhi) (2001) 4 SCC 280; Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598; State of Uttar Pradesh v. Amarmani Tripathi (2005) 8 SCC 21; Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496; Sanjay Chandra v. CBI (2012) 1 SCC 40; P. Chidambaram v. CBI (2020) 13 SCC 337., These principles are equally applicable to the exercise of jurisdiction under Article 226 of the Constitution when the court is called upon to secure the liberty of the accused. The High Court must exercise its power with caution and circumspection, cognizant of the fact that this jurisdiction is not a ready substitute for recourse to the remedy of bail under Section 439 of the Code of Criminal Procedure. In the backdrop of these principles, it has become necessary to scrutinise the contents of the FIR in the case at hand. In this batch of cases, a prima facie evaluation of the FIR does not establish the ingredients of the offence of abetment of suicide under Section 306 of the Indian Penal Code. The appellants are residents of India and do not pose a flight risk during the investigation or the trial. There is no apprehension of tampering of evidence or witnesses. Taking these factors into consideration, the order dated 11‑11‑2020 envisaged the release of the appellants on bail., 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 recognises the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the Code of Criminal Procedure or prevent abuse of the process of any court or otherwise to secure the ends of justice. Decisions of the Supreme 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 of the Supreme Court 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 public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one significant end of the spectrum. The other end of the spectrum is equally important: the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty. The Code of Criminal Procedure, 1898 was enacted by a legislature which was not subject to constitutional rights and limitations; yet it recognised the inherent power in Section 561A. Post‑Independence, the recognition by Parliament of Section 482 of the Code of Criminal Procedure, 1973, of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is undoubtedly important in itself, because it protects at one level the rights of the victim and, at a more fundamental level, the societal interest in ensuring that crime is investigated and dealt with in accordance with law. On the other hand, the misuse of the criminal law is a matter of which the High Court and the lower courts in this country must be alive., In the present case, the High Court could not but have been cognizant of the specific ground raised by the appellant that he was being made a target as part of a series of occurrences which have been taking place since April 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum: the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty survives by the vigilance of her citizens, on the cacophony of the media and in the dusty corridors of courts alive to the rule of law. Yet, much too often, liberty is a casualty when one of these components is found wanting., Accordingly, the petitioner is directed to be released on bail upon furnishing a bond of Rs. 500 with one surety of like amount, to the satisfaction of the learned Additional Chief Judicial Magistrate, Basirhat, North 24-Parganas. All further proceedings of Sandeshkhali Police Station case No. 38 of 2024 dated February 19, 2024, under Sections 447, 448, 354, 354C, 509, 506 and 34 of the Indian Penal Code shall remain stayed till the disposal of this writ petition. Let the affidavit in opposition be filed by the State within a period of four weeks; reply thereto, if any, may be filed by the petitioner within two weeks thereafter. List the matter after six weeks under the heading Hearing. All parties shall act on the server copy of this order duly obtained from the official website of this High Court.
id_626	0	Rajeev Kumar Damodarprasad Bhadani, Age: 60 years; Satish Kumar Damodarprasad Bhadani, Age: 59 years; Sudhir Kumar Damodarprasad Bhadani, Age: 48 years; Sunil Kumar Damodarprasad Bhadani, Age: 47 years; Shaildevi Damodarprasad Bhadani, Age: 75 years; and the children of 2, 3, and 5, Mr. Rajeev Kumar Bhadani, all resident of Thane, Indian Inhabitants, 103B, Siddhi Towers, Bhakti Mandir Marg, Near Hari Niwas, Thane (W), 400602., Versus: 1. The Executive Engineer, Maharashtra State Electricity Distribution Company Limited (successor to Maharashtra State Electricity Board), CCCM Sub‑Division, 1st Floor, Vidyur Building, L.B.G. Marg, Bhandup West, Mumbai 400058. 2. M/s. Unit Arsens Developers, a partnership firm registered under the Indian Partnership Act, 1932, having its registered office at Madhuban Apartment, Ram Maruti Road, Naupada, Thane West, Thane. 3. Collector, Thane. The State of Maharashtra through the Government Pleader, Appellate Side, Bombay High Court, is also a respondent., Mr. Vishwajit Sawant, Senior Advocate, appearing for the petitioners, assisted by Mr. Vipul Makwana and Mr. Yatin R. Shah; Ms. Deepa Chawan, Ms. Ruchi Patil and Ms. Amita Kamble, appearing for Respondent No.1; Ms. Kshitija Wadatkar, Associates for Respondent No.1; Mr. Sandesh Patil and Mr. Chintan Shah for Respondent No.2; and Mr. Sunil Mane, Executive Engineer, Mahavitaran, are present., JUDGMENT (Per Justice Somasekhar Sundaresan, J.): The challenge in this writ petition is to the acquisition of land measuring 6,685 square metres bearing Survey No. 432(P), situated at Village Panchpakhadi, Taluka Thane, District Thane (the Subject Land) by the Maharashtra State Electricity Board, without complying with the due process of law as stipulated under the Land Acquisition Act, 1894. A 22/11 kV electricity sub‑station and staff quarters, collectively referred to as the Sub‑Station, of the Maharashtra State Electricity Distribution Company Limited stand on the Subject Land. The petitioners allege usurpation of land because compensation has not been paid and seek application of due process for award of compensation in accordance with law., Petitioner No.1 to Petitioner No.4 are siblings and offspring of the late Shri Damodarprasad Bhadani. Petitioner No.5 is the widow of the late Shri Damodarprasad Bhadani. Maharashtra State Electricity Distribution Company Limited is Respondent No.1. After the unbundling of the state electricity boards pursuant to the Electricity Act, 2003, the Maharashtra State Electricity Board was disbanded, and the electricity distribution activity in Maharashtra, together with attendant assets including the Subject Land, vested in Maharashtra State Electricity Distribution Company Limited. M/s. Unit Arsens Developers, a partnership firm which developed the land around the Subject Land and handed over possession of the Subject Land to the Maharashtra State Electricity Board in 1984, is Respondent No.2. The State of Maharashtra through the Collector, Thane, is Respondent No.3., The petitioners contend that a much wider parcel of land was earlier owned by the extended Bhadani family. Pursuant to a consent decree among the extended Bhadani family dated 19 March 1971 in Suit No. 221 of 1960, ownership and possession of the Subject Land, as part of a larger tract measuring about 55,687.78 square metres, vested in the late Shri Damodarprasad Bhadani. The petitioners have inherited, as co‑owners, various properties at Village Panchpakhadi, bearing Survey Numbers 428 to 434 and a part of Survey No. 485, which includes the Subject Land (Survey No. 432(P))., According to the petitioners, their late father and uncle engaged Respondent No.2 to develop various parts of the land held by them. The Subject Land abuts a slum area, and no effective demarcation or survey of the land had been conducted. The late Shri Damodarprasad Bhadani submitted a scheme for housing for weaker sections, and by an order of the Competent Authority dated 25 October 1979, later modified by an order dated 27 August 1980, the land owned by them was proposed to be developed, with necessary sanctions sought from the Thane Municipal Corporation. The Bhadani family granted Respondent No.2 development rights in respect of certain parcels, retaining the right to execute conveyance to the society that would eventually be formed by those who acquired the developed properties. The 7/12 extract shows that the Subject Land stands in the names of the petitioners., Recently, while conducting a survey to demarcate various properties for potential development, the petitioners discovered that Maharashtra State Electricity Distribution Company Limited was in possession of the Subject Land. A private survey commissioned by the petitioners and conducted by Mr. Rajan Hate, a licensed surveyor, between 4 April 2019 and 10 April 2019, culminated in a report dated 12 April 2019 (the Rajan Hate Report), which indicates that an area of 6,685 square metres is in the possession of Maharashtra State Electricity Distribution Company Limited in respect of the Sub‑Station., Upon review of the Rajan Hate Report, the petitioners exercised their rights under the Right to Information Act, 2005, to ask Maharashtra State Electricity Distribution Company Limited how it came into possession of the Subject Land and whether any acquisition proceedings had been conducted. Maharashtra State Electricity Distribution Company Limited’s reply dated 25 June 2019, based on a possession receipt dated 19 April 1984, stated that the Sub‑Station stood on a plot of land measuring 9,700 square metres. It confirmed that the Subject Land is situated in Survey No. 432 of Village Panchpakhadi and that the owner of the land was M/s. Unit Arsens Developers (Respondent No.2). The reply further stated that possession of the land had been taken on 19 April 1984, that land acquisition proceedings had been carried out by the company in 1986 and 1988, but that later correspondence and records were not available and a further search of documents was being conducted., The above response led to a supplemental application dated 20 July 2019 under the Right to Information Act, requesting the documents on record with Maharashtra State Electricity Distribution Company Limited. In response, a reply dated 21 August 2019 confirmed that the earlier reply was based on the possession receipt dated 19 April 1984, of which a photocopy was shared. The possession receipt shows that Respondent No.2 handed over possession to the Executive Engineer of the Maharashtra State Electricity Board. The receipt confirms that the Maharashtra State Electricity Board took over possession of 9,700 square metres carved out from Survey No. 432 for the proposed construction of a 22 kV sub‑station. The receipt records that the Board had moved the Government to notify the land for acquisition under sections 128 and 129 of the Maharashtra Regional and Town Planning Act, 1966, but pending finalisation of acquisition formalities, the Executive Engineer took over possession to enable the Board to start work and protect the vacant land from probable encroachments. The Board also agreed that compensation, as fixed by the Government of Maharashtra under the MRTP Act, would be payable by the Government., Therefore, the possession receipt evidences that the Maharashtra State Electricity Board had moved the State to notify the Subject Land for acquisition under sections 128 and 129 of the Maharashtra Regional and Town Planning Act, 1966. Pending finalisation of acquisition formalities, the Executive Engineer of the Maharashtra State Electricity Board took over the Subject Land from Respondent No.2 to enable the Board to commence work and to protect against probable encroachments, consistent with the abutment of slums and absence of demarcation., The material on record also contains a letter dated 6 September 1983 from Respondent No.2 annexing a draft possession receipt in response to a letter from the Maharashtra State Electricity Board dated 1 September 1983, seeking approval of the draft before actual possession was handed over. In that letter, Respondent No.2 enquired whether the Collector, Thane, had been moved by the Board for acquisition of the Subject Land. The final possession receipt dated 19 April 1984 appears to culminate this engagement, recording that acquisition procedure under sections 128 and 129 of the MRTP Act would be followed later., It is the petitioners’ case that they became aware that the Subject Land owned by them was being used by Maharashtra State Electricity Distribution Company Limited for the Sub‑Station from the Rajan Hate Report. This possession was confirmed upon receipt of the reply of Maharashtra State Electricity Distribution Company Limited dated 25 June 2019 under the Right to Information Act. By 21 August 2019, the petitioners received the possession receipt from Maharashtra State Electricity Distribution Company Limited and prepared for litigation, which was delayed by the Covid‑19 pandemic. Once courts resumed physical functioning, the writ petition was filed on 6 April 2021. While Maharashtra State Electricity Distribution Company Limited asserted that acquisition had been conducted between 1986 and 1988, the petitioners state that there is nothing to show that any due process was actually followed., The grievance of the petitioners is that no compliance with due process applicable to land acquisition, such as issuance of notice under section 4, hearing of objections under section 5A, declaration of notification under section 6 and passing of an award under section 11 of the Land Acquisition Act, 1894, has been conducted. Their submission is that if the Subject Land had been duly acquired in compliance with law, Maharashtra State Electricity Distribution Company Limited would be able to demonstrate the same. Evidently, being in possession of the Subject Land with nothing to demonstrate compliant acquisition and payment of compensation, the petitioners accuse Maharashtra State Electricity Distribution Company Limited of being an unlawful encroacher and usurper of the Subject Land., In these circumstances, the petitioners submit that the only correct legal redress is that the land acquisition procedure under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, must be followed, and that the petitioners ought to be appropriately awarded compensation., The petitioners have filed further affidavits in the proceedings, namely an affidavit in rejoinder dated 30 November 2023 and an additional affidavit dated 14 December 2023., Maharashtra State Electricity Distribution Company Limited has resisted the writ petition by filing multiple affidavits: an affidavit in reply dated 11 July 2022; an affidavit dated 23 October 2023; an affidavit dated 1 December 2023; and an affidavit dated 13 December 2023., In summary, Maharashtra State Electricity Distribution Company Limited, through its affidavits, has sought to resist the prayers of the petitioners on three grounds: (i) that the writ petition is hopelessly delayed and vitiated by delays and laches, having been filed nearly 40 years after taking over possession of the Subject Land on 19 April 1984 and nearly 28 years after the construction of the Sub‑Station (the company states the Sub‑Station was constructed in 1993); (ii) that factual disputes are involved, placing the petitioners’ prayers outside the scope of adjudication in a writ petition, including a suggestion that the land may have been taken from the Maharashtra Housing and Area Development Authority (MHADA); and (iii) that, even if there had been no delay or compliance with acquisition procedures, the Electricity Act, 2003 and regulations made thereunder have displaced the domain of land acquisition law in the context of electricity sub‑stations, limiting any compensation to a lease rental of one rupee per annum., Respondent No.2 filed an affidavit dated 15 November 2022 supporting the petitioners and attempting to expand the scope of compensation beyond the 6,685 square metres pleaded in the writ petition to the 9,700 square metres referred to in the possession receipt. According to Respondent No.2, the difference of 3,015 square metres was land owned by Respondent No.2 and also needs to be compensated., The State, i.e., Respondent No.3, has not filed any affidavit in the matter., We have heard Mr. Vishwajit Sawant, learned senior counsel for the petitioners; Ms. Deepa Chawan, learned counsel for Maharashtra State Electricity Distribution Company Limited; Mr. Sandesh Patil, learned counsel for Respondent No.2; and Mr. A.I. Patel, learned additional government pleader for Respondent No.3. We have also given anxious consideration to the pleadings and the material brought on record by all parties., At the threshold, we note that the Subject Land, as pleaded by the petitioners and identified in the Rajan Hate Report, on which the Sub‑Station stands, is 6,685 square metres. The area referred to in the possession receipt and in the proceedings under the Right to Information Act is 9,700 square metres. This difference is reconciled by the affidavit dated 15 November 2022 filed by Respondent No.2, claiming that 3,015 square metres (the difference) is land belonging to Respondent No.2. Without filing any writ petition, Respondent No.2 has sought to expand the scope of land for which compensation is claimed to 9,700 square metres. We are constrained to consider only the area of 6,685 square metres identified and covered by the writ petition., In summary, the Sub‑Station (including the staff quarters) stands on the Subject Land. The possession receipt evidences that the Maharashtra State Electricity Board, the predecessor in interest of Maharashtra State Electricity Distribution Company Limited, took possession of the Subject Land (in fact an area larger than the Subject Land) on 19 April 1984. It is the State and Maharashtra State Electricity Distribution Company Limited that must demonstrate how they complied with the land acquisition procedures, especially since the possession receipt records that acquisition procedures under the MRTP Act would follow. Subsequent correspondence introduced into the record would show that a composite notification under the MRTP Act as well as the Land Acquisition Act was under consideration. The petitioners cannot be called upon to prove the negative and demonstrate that they were not paid., Maharashtra State Electricity Distribution Company Limited has adopted varying and at times contradictory positions. In its reply dated 25 July 2019 under the Right to Information Act, it claimed that acquisition procedures had been complied with in 1986 and 1988. Documents brought on record point to discussions between the State and the Maharashtra State Electricity Board on the manner and means of compliance with land acquisition law, including a letter from the State to the Board suggesting invoking both the MRTP Act and the Land Acquisition Act, but there is nothing to show that either was invoked. The company has also argued that subordinate law made by state electricity regulatory commissions under the Electricity Act would supplant statutes made by Parliament and the State Legislature on land acquisition; that MHADA may have played a role in acquisition; that a supplemental development agreement between the petitioners and Respondent No.2 envisaged the sub‑station; and that the passage of time vitiates the writ petition by delay and laches., Maharashtra State Electricity Distribution Company Limited also relies on a development agreement dated 20 June 1984 for development of various parcels of land, including land situated in Survey No. 432 (the Subject Land). By executing the development agreement, the petitioners were discharging their obligation under a scheme for housing for weaker sections presented by the wider Bhadani family, whereby Respondent No.2 would construct buildings on the land covered by the agreement. The agreement does not confer any authority on Respondent No.2 to convey title to any part of the land. The company further relies on a supplemental agreement dated 16 November 1993, which presents a framework whereby erection of the electrical sub‑station was envisaged by the parties., Maharashtra State Electricity Distribution Company Limited describes the possession receipt as showing that due process for acquisition under sections 128 and 129 of the MRTP Act had been initiated and that the appropriate authority under the Land Acquisition Act had undertaken a notification for acquisition under section 4 of the Land Acquisition Act. The company relies on a letter dated 20 November 1986 addressed by the Land Acquisition Officer, Thane, to the Deputy Collector, Thane, which records that the Maharashtra State Electricity Board had taken possession of the land privately and had completed construction on it. Another letter dated 19 July 1988 from the Additional Collector, Thane, to the Administrative Officer, Town Development Division, State of Maharashtra, shows that publication of a notice under both section 4 of the Land Acquisition Act and section 128 of the MRTP Act was under contemplation, proposing to give the Special Land Acquisition Officer, Town Planning and Valuation Department, Thane, powers to acquire the land under such a notification. These references indicate that an acquisition procedure was contemplated but not completed, as possession was taken in 1984 and construction apparently completed by 1986., These letters demonstrate that a proposal to issue a notification invoking section 4 of the Land Acquisition Act read with section 128 of the MRTP Act was under consideration in 1988. However, Respondent No.1 and Respondent No.3 have not produced any evidence that any of the steps required under either legislation for land acquisition had been taken. Typically, in matters involving belated discovery of alleged non‑compliance with land acquisition procedures, some vestige of compliant steps is produced, and courts tend to give them credence on the balance of probabilities. In this case, neither the State nor Maharashtra State Electricity Distribution Company Limited has produced anything to suggest compliance with land acquisition laws. Instead, they have consistently admitted that the right to compensation under land acquisition law has accrued in respect of the Subject Land, while advancing the novel argument that electricity laws supersede land acquisition legislation for sub‑stations., Consequently, the petitioners have made out a prima facie case for acquisition of the Subject Land, possession of which was taken over in 1984, to be completed with compensation to be computed in accordance with law., Maharashtra State Electricity Distribution Company Limited raises three fundamental objections: (i) delay and laches, alleging that the writ petition filed on 6 April 2021 represents a delay of nearly 40 years since the possession receipt of 19 April 1984 and 28 years since construction; (ii) factual disputes, including the suggestion that the land may have been taken from MHADA; and (iii) that the Electricity Act, 2003 and its regulations have displaced land acquisition law for electricity sub‑stations, limiting compensation to a nominal lease rental., The court notes that it is now established law that constitutional rights in writ jurisdiction cannot be barred by the limitation period as if they were ordinary causes of action. The Supreme Court in Tukaram Kana Joshi v. MIDC (2013) 1 SCC 353 held that the constitutional right to property could not be defeated on technical grounds of delay. In State of Maharashtra v. Digambar (1995) 4 SCC 683, the Supreme Court denied relief to farmers on the ground of delay, but did not treat delay as an absolute bar. More recently, in Sukh Dutt Ratna v. State of Himachal Pradesh (2022) 7 SCC 508, the Supreme Court emphasized that there can be no limitation to doing justice where the right to property has been intruded without due process of law., While the earlier judgments dealt with agrarian landowners, the petitioners are urban landowners; nevertheless, the principle that the right to property, though not a fundamental right, is a constitutional right under Article 300‑A of the Constitution of India, remains applicable. Any interference with property rights must comply with a validly made law, and the jurisprudence on compensation for land acquisition applies equally to urban land.
id_626	1	Neither the Constitution of India nor the law declared by the Honourable Supreme Court makes such a distinction on whether a citizen of the Republic of India should be nonsuited on the ground of the land being urban land as opposed to the land being rural land., All the aforesaid cases Tukaram, Digambar, Sukh Dutt (including the numerous other judgments referred to in Sukh Dutt) involve a gap of decades between the acquisition or possession and the filing of the writ petition. In our opinion, each petition must be dealt with, applying known reasonable principles on how to assess the impact of the writ petition being considered on merits. The question to ask is whether the petitioners must be denied a consideration on merits at the very threshold, on the premise that it would be inequitable to consider the writ petition., The State cannot, on the ground of delay and laches, evade its responsibility towards those from whom private property has been expropriated. In any case, the principles a court must apply when assessing whether a writ petition is so hopelessly barred by delays and laches that a remedy is not worthy of consideration are well articulated in Maharashtra State Road Transport Corporation versus Balwant Regulator Motor Service, AIR 1969 Supreme Court 329. These principles are extracted and endorsed in Sukh Dutt. When one analyses Digambar, it is noteworthy that these are in fact the principles on which the land‑donor farmers claiming compensation decades later were denied consideration by the Honourable Supreme Court of India., In a nutshell, principles of equity must inform how a court deals with a defence of delays and laches. In the words of the Honourable Supreme Court of India (in Maharashtra State Road Transport Corporation): Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking one course or the other, so far as relates to the remedy., We have considered these principles and applied them to the situation at hand. Apart from the length of the delay, whether the nature of the acts done during the interval has affected either party in a manner that causes an imbalance in delivering justice is what the Supreme Court of India must consider. We find that denying the petitioners an opportunity of their writ petition even being considered, merely on the ground of delay, would be unjust to the petitioners. On the other hand, considering the writ petition on merits would not tilt the scale against Maharashtra State Electricity Distribution Company Limited and the State., In the interval period, i.e., between 1984 and 2021 (between the time the constitutional right to compensation for deprivation of property accrued and the time when the enforcement of that right was acted upon), there is nothing on the record to show that the petitioners had conducted themselves in a manner that would disentitle them from pursuing the remedy of a writ petition. There is nothing to show active knowledge of the petitioners about the subject land being handed over by Respondent No. 2 voluntarily without compensation. The subject land forms part of a much wider area of land that was to be divided among different arms of the extended Bhadani family. The petitioners submit that they were under the belief that the land fell in the portion of entitlement of the other arm of the Bhadani family. Nothing has been brought on record to show any involvement or positive knowledge and participation in the handover of possession of the land under their entitlement. The land in question was in the possession of Respondent No. 2, who was developing the land owned by the wider Bhadani family. Evidently, it was Respondent No. 2 who handed over the land to the Maharashtra State Electricity Board, which recorded Respondent No. 2 as the owner of the land effectively, the party parting with possession. Concurrently, there is contemporaneous evidence to show that at the time of possession and later in 1986 and then in 1988, the State was conscious that acquisition proceedings leading to computation and payment of compensation were due from its end. The State was evidently seized of the need to comply with these requirements. For reasons best known to the State, that has demonstrably not been done to date., Moreover, in the interval period, Maharashtra State Electricity Distribution Company Limited has augmented the capacity of the sub‑station to distribute electricity to a wider range of connections and has benefited from the usage of the subject land. We called upon Maharashtra State Electricity Distribution Company Limited to provide a list of areas serviced from the sub‑station and the flow of augmented capacity over the years, and it is apparent that the sub‑station services areas far beyond the land developed by Respondent No. 2. In fact, Maharashtra State Electricity Distribution Company Limited has stated on record that further augmentation to make the sub‑station an extra high voltage sub‑station is underway. Considering all the attendant facts and circumstances, we are not convinced that there would result any imbalance in justice if the petitioners' grievance against the State's inability to demonstrate even a smattering of evidence of compliant acquisition with appropriate compensation is tested on merits., We also note that this is a case where possession of the subject land had been taken upfront. The possession notice had stated that such possession was necessary to avoid encroachments, the subject land already having a slum at its boundary. The land in question was not demarcated at the time of possession. The State has benefited from the subject land and Maharashtra State Electricity Distribution Company Limited has enhanced its distribution capacity at the site. Staff quarters have been constructed. The owners of the land have not been compensated. To borrow the words of the Honourable Supreme Court of India, when assessing whether providing any remedy would tilt the balance of justice or injustice in favour of one party or the other, we find that refusing to consider the petition on the ground of delay and laches alone would tilt the balance towards injustice against the petitioners, whereas considering the writ petition on merits would do no injustice to either party., Maharashtra State Electricity Distribution Company Limited has introduced the speculation that correspondence in its possession with Thane Municipal Corporation would indicate that the Maharashtra Housing and Area Development Authority had potentially played a role in the acquisition of the subject land and that possession had perhaps been taken from the Maharashtra Housing and Area Development Authority and not Respondent No. 2. Well into the proceedings, Maharashtra State Electricity Distribution Company Limited claims to have unearthed a letter written to the Thane Municipal Corporation, suggesting that a plot of land had been taken from the Maharashtra Housing and Area Development Authority for some sub‑station. Maharashtra State Electricity Distribution Company Limited would invoke such correspondence to argue that facts involved in the matter could be in dispute, and such disputes cannot be adjudicated in a writ petition., However, evidently, the very area of the land referred to in the correspondence is completely dissimilar to the subject land. Maharashtra State Electricity Distribution Company Limited submitted that this letter, dated 4 November 1992, unearthed by it, would show that land measuring 2,505.60 square metres had been handed over by the Maharashtra Housing and Area Development Authority to the Maharashtra State Electricity Board, suggesting that perhaps the Maharashtra Housing and Area Development Authority may have acquired the subject land in compliance with due process of law, and then handed it over to Maharashtra State Electricity Distribution Company Limited. We have considered the letter dated 4 November 1992 from the Maharashtra State Electricity Board to the Thane Municipal Corporation seeking approval to build a proposed sub‑station in Panchpakhadi Village on Maharashtra Housing and Area Development Authority land. Not only is the area of land indicated materially different (2,505.60 square metres as opposed to the 9,700 square metres indicated in the possession receipt) but also the letter indicates that the plot of land in question was in the portion of land being developed by the Maharashtra Housing and Area Development Authority in Panchpakhadi Village. The letter does not reference the land falling within Survey No. 432(P), on which, admittedly, the sub‑station relevant to these proceedings now stands. Moreover, the letter dated 20 November 1986 indicates that the Maharashtra State Electricity Board had already constructed on the subject land whereas the letter of 4 November 1992 requests permission of the Thane Municipal Corporation to construct a sub‑station; clearly, the letter from the Maharashtra State Electricity Board to the Thane Municipal Corporation cannot relate to the sub‑station constructed on the subject land. The same letter indicates that there is a heavy demand for power supply in the region and therefore indicates a sense of urgency to the Thane Municipal Corporation., Mr. Sawant, on behalf of the petitioners, contended that the land referred to in the letter of the Maharashtra State Electricity Board to the Thane Municipal Corporation as having been taken over from the Maharashtra Housing and Area Development Authority is another plot of land and that the Maharashtra Housing and Area Development Authority has had nothing to do with Survey No. 432. In fact, upon Maharashtra State Electricity Distribution Company Limited bringing in the Maharashtra Housing and Area Development Authority element, the petitioners visited the subject land again and adduced photographs of the site to demonstrate that the sub‑station in fact stands on Survey No. 432 and that no disputed facts exist for the writ jurisdiction to become unavailable. The petitioners have also filed an additional affidavit, adducing an application under the Right to Information Act, dated 26 October 2023, filed with the Maharashtra Housing and Area Development Authority asking for confirmation as to whether any land in Survey No. 432 had been acquired by the Maharashtra Housing and Area Development Authority. In reply, by a letter dated 7 December 2023, it appears that the Maharashtra Housing and Area Development Authority confirmed that it has not conducted any acquisition hitherto in Survey No. 432. The reply also encloses an extract from the gazette notification published by the Maharashtra Housing and Area Development Authority under the Land Acquisition Act, 1894 for acquiring various pieces of land in Thane. While the notification was made in July 1960 and indeed refers to various survey numbers, some of them falling within Village Panchpakhadi in Thane, the notification shows that Survey No. 432 was not at all covered by the land acquisition by the Maharashtra Housing and Area Development Authority. In short, the Maharashtra Housing and Area Development Authority had nothing to do with the subject land and the argument canvassed by Ms. Chawan on this aspect is only to distract attention from the core issue in the present petition., Therefore, our attention need not be detained in speculating about what such correspondence with the Thane Municipal Corporation may have been about. In any case, Maharashtra State Electricity Distribution Company Limited has not denied that the sub‑station stands on the subject land, and the subject land falls in Survey No. 432(P) and that possession of such land had been taken from Respondent No. 2 (and not from the Maharashtra Housing and Area Development Authority) on 19 April 1984. Had the Maharashtra Housing and Area Development Authority even remotely been connected to the subject land, one could have considered it arguable that a factual ascertainment of the specificity of the subject land is called for. Therefore, in our opinion, it is unnecessary to enter into any adjudication on what the correspondence with the Thane Municipal Corporation was about. Suffice it to state that the Maharashtra Housing and Area Development Authority has nothing to do with the subject land., Therefore, in our opinion, the letter dated 4 November 1992 unearthed by Maharashtra State Electricity Distribution Company Limited does not create any cloud or raise any issue of disputed facts about the subject land. On the contrary, the correspondence brought on record by Maharashtra State Electricity Distribution Company Limited would show that well before the letter to the Thane Municipal Corporation (4 November 1992), the need to issue a notification and discussion about issuing one under both the Land Acquisition Act and the Maharashtra Regional and Town Planning Act in relation to the subject land was an acknowledged position (letter dated 20 November 1986 from the Land Acquisition Officer, Thane to the Deputy Collector, Thane; and letter dated 19 July 1988 from the Additional Collector, Thane to the Administrative Officer, Town Development Division, State of Maharashtra). Moreover, the letter dated 20 November 1986 indicates that the Maharashtra State Electricity Board had already constructed on the subject land whereas the letter of 4 November 1992 requests permission of the Thane Municipal Corporation to construct., Possession of the subject land was evidently taken from Respondent No. 2 in 1984 and there was continued correspondence on the same among statutory authorities. Therefore, we are of the opinion that it is inappropriate and unreasonable for Maharashtra State Electricity Distribution Company Limited to introduce the letter dated 4 November 1992, hinting at having taken over some plot of land of a totally different measurement in a totally different location from the Maharashtra Housing and Area Development Authority in 1992, to argue that disputed facts are involved that a writ court cannot adjudicate., It is also apparent that the challenge in the writ petition to the Maharashtra State Electricity Distribution Company Limited's admitted occupation of the subject land without any evidence to show compliance with the law governing land acquisition is based on material provided by none other than Maharashtra State Electricity Distribution Company Limited. When the request for information was received under the Right to Information Act, Maharashtra State Electricity Distribution Company Limited did not assert that it would be impossible to respond due to non‑availability of documents and records. In fact, it provided a copy of the possession receipt from its records, albeit a photocopy. The possession receipt makes it clear that possession was indeed taken on 19 April 1984 from Respondent No. 2 for the purpose of constructing a sub‑station, and it is the sub‑station that currently stands on the subject land. The other two letters between the Land Acquisition Officer and the Collector's office are also part of Maharashtra State Electricity Distribution Company Limited's records, and corroborate the sub‑station standing on the subject land. All these documents only point to Maharashtra State Electricity Distribution Company Limited's assertions before this court to be far‑fetched and incongruous., In a nutshell, for all the reasons articulated above, we are not persuaded that any disputed question of fact has arisen owing to the letter written to the Thane Municipal Corporation by the Maharashtra State Electricity Board about a plot of land having been taken from the Maharashtra Housing and Area Development Authority being unearthed. The allusion to the Maharashtra Housing and Area Development Authority, in our view, is a red herring and a disingenuous attempt to set a cat among the pigeons to somehow plead that the jurisdiction of the Supreme Court of India under Article 226 of the Constitution of India must not be exercised., That brings us to the final, and in fact, the core answer on merits that Maharashtra State Electricity Distribution Company Limited has offered. According to Maharashtra State Electricity Distribution Company Limited, even if there had been no delay in filing the writ petition and regardless of the Maharashtra Housing and Area Development Authority element, electricity law, i.e., the Electricity Act and regulations made thereunder, have waded into the domain of land acquisition law. Specifically, Ms. Chawan contended that Section 50 of the Electricity Act stipulates the formulation of an Electricity Code. The 2021 Regulations, a self‑contained code, are made under Section 50. Ms. Chawan would contend that it deals with all manner of rights and obligations connected with the supply of electricity. According to her, Regulation 6.5 of the 2021 Regulations, particularly the first proviso, would show that the petitioners would at best be entitled to a lease rental of rupee one per annum., To appreciate this submission, it is necessary to extract the relevant provisions. Section 50 of the Electricity Act is extracted below: Section 50. (The Electricity Supply Code): The State Commission shall specify an electricity supply code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non‑payment thereof, restoration of supply of electricity; measures for preventing tampering, distress or damage to electrical plant, or electrical line or meter; entry of the distribution licensee or any person acting on its behalf for disconnecting supply and removing the meter; entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters. [Emphasis supplied], Even a plain reading of Section 50 is adequate to see that the 2021 Regulations (which essentially constitute the Electricity Supply Code) have nothing to do with land acquisition for purposes of erecting a sub‑station or constructing staff quarters. Section 50 empowers the State Electricity Regulatory Commission to regulate the relationship between the distribution licensee and the electricity consumer. It is a consumer charter that the state regulator is empowered to specify. To begin with, to extrapolate the 2021 Regulations, made by state electricity regulators, as a self‑contained code that would supplant land acquisition law contained in statutes made by Parliament and state legislatures is simply untenable. On the face of it, even if a State Electricity Regulatory Commission were to, as presumptively as Maharashtra State Electricity Distribution Company Limited, assume jurisdiction over land acquisition matters, such a step would ex facie be ultra vires the Electricity Act. A plain reading of the 2021 Regulations would show that the Electricity Code does not even purport to be a complete code that governs land acquisition. Such an extrapolation can only be put down to an extraordinary attempt at ingenuity by Maharashtra State Electricity Distribution Company Limited in these proceedings., Regulation 6 must be seen in its entirety for Maharashtra State Electricity Distribution Company Limited's submission to be appreciated, and is extracted below: 6. Processing of Applications: 6.1 After a distribution licensee receives a duly completed application containing all necessary information/documents in accordance with Regulation 5.4 above, the distribution licensee shall send its authorised representative to (a) inspect the premises to which supply is to be given, with prior intimation to the applicant; and (b) study the technical requirements of giving supply. 6.2 In order to give supply to the premises concerned, the authorised representative shall, in consultation with the applicant, fix the position of mains, cut‑outs or circuit breakers and meters at the ground floor and sanction the load for the premises, provided that the service position shall normally be at an accessible location and the meter shall be fixed at a height so as to enable convenient reading of the meter and to protect the meter from adverse weather conditions; provided further that in multi‑storied/high‑rise buildings, the metering point shall be at the ground floor as agreed by the distribution licensee considering safety and accessibility of meters. In case the consumer requires metering points to be located at levels other than ground, he can do so with installation of a bus riser arrangement at his own cost as per specifications approved by the distribution licensee or pay actual expenses for undertaking such work by the distribution licensee. Further, such bus riser shall be handed over to the distribution licensee for operation and maintenance purposes. Provided further that if there are any outstanding dues against the premises for which the requisition of supply has been made, a new connection shall not be given until such dues are paid in accordance with Regulation 12.5 of this code. 6.3 No such inspection referred to in Regulation 6.1 shall be carried out of any domestic premises to which supply is to be given between sunset and sunrise, except in the presence of an adult male member occupying such premises, or an adult male representative. 6.4 After an inspection referred to in Regulation 6.1 is carried out, the distribution licensee shall intimate the applicant of the details of any works that are required to be undertaken. 6.5 Where, in the opinion of the distribution licensee, the provision of supply requires installation of transformers, switchgear, meter and all other apparatus up to the point of supply within the applicant's premises, the applicant shall make a suitable piece of land or a suitable room within such premises available to the distribution licensee by way of lease, provided that a suitable piece of land or a room shall be made available to the distribution licensee by way of lease agreement at rupee one (1) per annum, provided further that expenses, if any, towards registration of the lease agreement shall be borne by the concerned applicant, provided further that any existing agreement, as on the date of notification of these regulations, for use of such land or room may, upon expiry, be renewed on such terms and conditions as may be mutually agreed between the parties, to be consistent with this Regulation 6.5; provided also that where, at the date of notification of these regulations, the distribution licensee is using any such land or room without an agreement for such use or under an agreement having no fixed expiry date, then such arrangement or agreement, as the case may be, for use of such land or room is deemed to have expired at the end of two (2) years from the date of notification of these regulations, subsequent to which a fresh agreement may be entered into on such terms and conditions as may be mutually agreed between the parties, to be consistent with this regulation. [Emphasis supplied], A plain reading of the foregoing would make it apparent that Regulation 6 deals with supply of electricity to any premises of a consumer. To begin with, an applicant desirous of getting electricity supply may apply under Regulation 5.4 for supply, revision in load, shifting of service, extension of service or restoration of supply. Such an applicant would be a person occupying the premises for which supply of electricity is sought. Essentially, it is a consumer desirous of getting electricity supply who has to apply. Regulation 6 governs processing of the applications so made by the distribution licensee. The actions to be taken and the mutual obligations and rights governing the relationship between the applicant and the distribution licensee are set out in Regulation 6. It is in that context and sequential flow of stipulated activity that Regulation 6.5 deals with provision of any portion of such premises for installation of transformers, switch‑gear, meter and all other apparatus up to the point of supply within the applicant's premises. It is towards this end that an applicant is to make available a suitable piece of land or a room within such premises by way of lease at a lease rental of rupee one (Re 1/‑) per annum. Regulation 6.5 does not even envisage erection of a sub‑station, and a sub‑station is not an apparatus for it to be installed in a portion of a customer's building premises., To begin with, Regulation 6.5 deals with the contractual obligations between the consumer of electricity and the distributor of electricity. The subject matter of this provision of law is not at all land acquisition for construction of a sub‑station or, for that matter, staff quarters of an electricity generator or distributor. If a housing society or a premises society were to seek electricity connection for its constituents, Regulation 5.4 would deal with the stipulations for making the application while Regulation 6.5 would deal with the terms on which any local portion of the premises must be made available to the distribution licensee to enable smooth supply of electricity. Regulation 6.2 provides that where such premises are in a multi‑storied or high‑rise building, such portion where apparatus would be installed must be on the ground floor., Evidently, the draftsmen of the 2021 Regulations have taken care to stipulate what can be installed in such piece of land or room within the consumer's premises; these are transformers, switchgear, meters and other apparatus up to the point of supply. The term point of supply is in fact defined in Regulation 2.2 (mm) and is extracted below: 2.2 (mm) Point of Supply means the point at the outgoing terminals of the distribution licensee's cut‑outs/switch‑gear fixed in the premises of the consumer, provided that, in case of high‑tension (HT) and extra high‑tension (EHT) consumers, the point of supply means the point at the outgoing terminals of the distribution licensee's metering cubicle placed before such HT and EHT consumer's apparatus; provided further that, in the absence of any metering cubicle or where the metering is on the low‑tension side of the HT or EHT installation, the point of supply shall be the incoming terminals of such HT and EHT consumer's main switchgear., It would be seen that a Point of Supply is a point fixed in the premises of electricity consumer to enable the last mile connectivity in the supply of electricity. At such point, the power supply is transformed into the form by which it can be drawn by the end‑user consumer. Such a provision, which deals with the terms on which the Distribution Licensee shall supply electricity to the consumer, cannot by any stretch be extended to cover land acquisition for purposes of erecting sub‑stations and building staff quarters., At the risk of putting too fine a point on the evidently untenable contention of the State's electricity regulator having the power to override land acquisition laws made by Parliament, the scope of the 2021 Regulations contained in Regulation 1 is extracted below: 1.1 This code shall be applicable to: a) all distribution licensees including deemed distribution licensees and all consumers in the State of Maharashtra; b) all other persons who are exempted under Section 13 of the Act; and c) unauthorized supply, unauthorized use, diversion and other means of unauthorized use/abstraction of electricity., In short, the 2021 Regulations are indeed a self‑contained Code, but a Code that governs the relationship between the electricity distributor and the electricity consumer, and not with land acquisition. Regulation 6.5 deals with installation of apparatus for the supply and consumption of electricity at the point of supply to the end consumer of electricity. The 2021 Regulations do not even purport to supplant the land acquisition legislation made by the Parliament of India or by State Legislatures. We are not impressed by the attempt to clutch at a proviso in a sub‑regulation that requires providing a suitable piece of land or room for installation of the apparatus for the final connectivity to an electricity consumer, as a provision in a self‑contained code that trumps all other land acquisition laws of the country., For completeness, Ms. Chawan's extensive reliance on the last proviso of Regulation 6.5 also needs to be rejected. Under that proviso, if any distribution licensee were using the room or land referred to in Regulation 6.5 without an agreement, such arrangement would come to an end in two years from the notification of the 2021 Regulations and a fresh agreement would have to be negotiated, consistent with Regulation 6.5. We have already opined on the scope of Section 50 and Regulation 6. It is not even Maharashtra State Electricity Distribution Company Limited's case that an application for final connectivity to supply electricity under Regulation 5.4 is what it was operating under. The subject land had been taken over in 1984. Maharashtra State Electricity Distribution Company Limited's argument would mean that, notwithstanding the state of non‑compliance with land acquisition laws since 1984, with effect from the 2021 Regulations, that arrangement would have to take the form of a lease agreement for a lease rental of rupee one per annum, and that is the only possible outcome of a negotiation between the parties., This is again a fallacious premise within the overall fallacy of treating Section 50 as enabling a state electricity regulator to supplant land acquisition laws by Parliament. All this proviso does is to provide an outer time limit for agreements that may be in existence where a room or a portion of land has been given by multi‑storied or high‑rise building(s) for a lease rental that is not consistent with rupee one per annum. The proviso in question stipulates a statutory expiry of such an arrangement and the parties would have to enter a new agreement that is consistent with Regulation 6.5. Charging a lease rental for providing a meter room or a transformer room is what this provision is about. It is not about acquiring several thousands of square metres of land to set up an entire
id_626	2	At our request, Maharashtra State Electricity Distribution Company Limited (MSEDCL) provided an affidavit dated 13 December 2023 showing the augmentation of capacity and load profile of the sub‑station since its inception. The data cover the period from 1987 to 2023, demonstrating that the sub‑station was functional in 1987 and could not have been constructed in 1993. The affidavit dated 23 October 2023 further shows that the sub‑station supplies electricity to an area much wider than the land area being developed by the petitioners, now catering to 15,825 customers over 10 feeders, each with multiple transformers. It is an admitted position that the sub‑station is being upgraded to an extra high voltage (EHV) sub‑station. If the 2021 Regulations were to be applied to this fact pattern, the transformers receiving supply through the feeders would have to be housed in a suitable piece of land or room as required by Regulation 6.5., We have no hesitation in dismissing the submission that the Electricity Act has overtaken the Land Acquisition Act or the Maharashtra Regional and Town Planning Act, and that distribution licensees have no liability to pay compensation for land acquired in the past after the 2021 Regulations were notified. The reliance by Ms. Chawan on the Supreme Court of India judgment in PTC India Limited v. Central Electricity Regulatory Commission (2010) 4 SCC 603 to suggest that the Regulations made under the Electricity Act intrude into existing contractual relationships is misplaced. That judgment dealt with pre‑existing power purchase agreements and the effect of new regulations on those contracts, not with pre‑existing non‑compliant land acquisition where possession was taken without payment of compensation., In PTC India Limited, the Court held that regulations fixing the trading margin in inter‑state trading of electricity made an inroad into existing power purchase agreements. Paragraph 66 observed that on making the impugned Regulations 2006, even existing PPAs had to be modified and aligned with the Regulations, indicating the wide power conferred on the Central Electricity Regulatory Commission under Section 178 of the Electricity Act, 2003. Paragraph 79 affirmed that fixation of the trading margin can be done by regulations under Section 178, which is a legislative power, and that such regulations constitute subordinate legislation with general application, affecting even existing contracts., The Supreme Court of India was considering whether there is any conflict between orders passed under electricity law and regulations made under electricity law. Invoking PTC to suggest that Regulation 6.5 of the 2021 Regulations, which governs the distributor‑consumer relationship, can make an inroad into land acquisition law governing the acquirer‑landowner relationship, is untenable., It is therefore apparent that the argument that electricity law has overtaken land acquisition laws and that no compensation is payable for land acquired for construction of sub‑stations is misconceived. There is no reasonable dispute about the identity of the subject land or that possession of the subject land came from the Maharashtra Housing and Area Development Authority rather than Respondent No. 2. The petition is not unworthy of consideration on merits on the ground of delays or laches., The subject land was taken over and constructed upon without any compensation being paid and without any notification for land acquisition or award of compensation under either the Land Acquisition Act or the Maharashtra Regional and Town Planning Act. The State’s officers discussed whether acquisition should proceed under the MRTP Act, the Land Acquisition Act, or both, indicating awareness of the need to pay compensation, which was not fulfilled. The record shows that possession of the land was directly taken by the Maharashtra State Electricity Board, while the State was conscious of its obligation to pay compensation. Respondent No. 3 has not filed any affidavit, whereas Respondent No. 1 filed four affidavits containing wide‑ranging contentions to resist payment of compensation., For the reasons set out above, we find that the petitioners have made out a case for compensation for the land handed over to Respondent No. 1. At this stage, the court cannot order vacating the subject land and handing it over to the petitioners as prayed in prayer clause (a) of Paragraph 35, which is rejected. Multiple stakeholders have an interest in the current use of the subject land, and such relief cannot be granted., The petitioners have made out a case under prayer clause (b) of Paragraph 35, seeking that this Supreme Court of India issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus directing Respondent Nos. 1 and 3 to acquire the land mentioned in Schedule II of Exhibit A as per the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and to compensate the petitioners appropriately., Since acquisition proceedings have not been conducted, no award has been made and no compensation paid, the court directs Respondent No. 3, the Collector, Thane, to compute the compensation payable to the petitioners under the 2013 Act and pass an award within three months from the date of this judgment. Respondent No. 3 shall communicate the award to Respondent No. 1, who must deposit the compensation with Respondent No. 3 within one month of such communication. Upon receipt of the deposit, Respondent No. 3 shall disburse the amount in accordance with law., The rule is made absolute in the aforesaid terms and the writ petition is disposed of accordingly. No order as to costs is made., This judgment will be digitally signed by the Private Secretary/Personal Assistant of the Supreme Court of India. All concerned parties shall act on production by fax or email of a digitally signed copy of this judgment., After the judgment was pronounced, the learned advocate appearing on behalf of Respondent No. 1 sought a stay of this order for eight weeks. Considering the directions given—computation of compensation within three months and deposit by Respondent No. 1 within one month—we see no reason to stay the operation of the judgment. The prayer for a stay is therefore rejected.
id_627	0	Writ Petition (MD) No. 23410 and 23671 of 2022. Petitioner: P. Markandan. Respondents: 1. The Commissioner, Hindu Religious and Charitable Endowments Department, Uthamar Gandhi Road, Nungambakkam, Chennai – 600034. 2. The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Thepakula Theru, Behind Kariya Maleeswarar Temple, Thiruvanaikaval, Trichy – 620005. 3. Dharmapuram Adheenam, represented by its General Manager, Dharmapuram, Mayiladuthurai – 609311. 4. Joint Commissioner, Hindu Religious and Charitable Endowments Department, Samantharkulam, Sithatharkadu, Mayiladuthurai – 609003 (impleaded as per order dated 24.11.2022 passed in WMP (MD) No. 17743 of 2022). 5. T.V. Ramalingam Gurukkal, Son of R. Viswanatha Gurukkal, 6/10A, Melamada Vilakam, Thirukadaiyur, Mayiladuthurai (impleaded as per order dated 24.11.2022 passed in WMP (MD) No. 19814 of 2022)., Petitioner: AR. Subramanian. Respondents: 1. The Commissioner, Hindu Religious and Charitable Endowments Department, Uthamar Gandhi Road, Nungambakkam, Chennai – 600034. 2. The Assistant Commissioner/Executive Officer (HR&CE), Arulmigu Meenakshi Sundareswarar Temple, Madurai – 625001. 3. The Assistant Commissioner/Executive Officer (HR&CE), Arulmigu Subramaniya Swamy Temple, Payaniyar Maligai Salai, Tiruchendur, Tuticorin – 628215. 4. The Assistant Commissioner/Executive Officer (HR&CE), Arulmigu Aranganathaswamy Temple, Srirangam, Tiruchirapalli – 620006. 5. The Joint Commissioner (HR&CE), 315, Secretary Office, North Giri Street, Palani, Dindigul – 624601. 6. The Secretary, Ministry of Electronics and Information Technology, Government of India, Electronics Niketan No.6, CGO Complex, Lodhi Road, New Delhi – 110003. 7. The Secretary, Ministry of Home Affairs, North Block, New Delhi – 110001. 8. The Additional Director General of Police, Cyber Crime Branch, No.3, Dr. Natesan Road, Police Training College Campus, 3rd Floor, Cyber Crime Wing, Ashok Nagar, Chennai – 600083. 9. The Additional Chief Secretary to the Government, Home, Prohibition and Excise Department, Secretariat, Fort St. George, Chennai – 600009 (Respondents 6 to 9 are suo motu impleaded as per the order dated 13.10.2022 passed in WP (MD) No. 23671 of 2022)., WP (MD) No. 23410 of 2022: Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the respondents to consider the representation dated 14.09.2022 of the petitioner and consequently to take all due and necessary steps to secure and protect the interest of Sri Thirukadaiyur Amirthakadeshwarar Temple and its properties., WP (MD) No. 23671 of 2022: Petition filed under Article 226 of the Constitution of India praying for a writ of mandamus directing the first respondent to consider the petitioner's representations dated 19.08.2022 and 30.09.2022 and consequently to take action against the bogus illegal websites opened in the name of the temples or deities under the control of the Hindu Religious and Charitable Endowments Department and Mutts, to take necessary criminal action against the owners or administrators of these websites and to recover the money collected by them from devotees illegally in the name of the temple., For Petitioner: Mr. R. Venkatesh. For Respondents: Mr. Veerakathiravan, Additional Advocate General, assisted by Mr. P. Subburaj, Additional Government Pleader for respondents 1, 2 and 4; Mr. M. Karthikeyan for respondent 3; Mr. K. Rajesh Khanna for respondent 5., For Petitioner: Mr. M. Karthikeyan. For Respondents: Mr. Veerakathiravan, Additional Advocate General, assisted by Mr. P. Subburaj, Additional Government Pleader for respondents 1, 8 and 9; Mr. V.R. Shanmuganathan for respondent 2; Mr. M. Muthugeethaiyan for respondent 3; Mr. M. Saravanan for respondent 4; Mr. K. Govindarajan for respondent 5; Mrs. L. Victoria Gowri for respondents 6 and 7., Temples are the abodes of the Almighty. Devotees gather together as a result of their steadfast belief and faith in the highest power and visit these holy grounds seeking blessings, serenity, guidance and to elevate their spiritual experience. Though the experience that each devotee undergoes or his purpose of visit is distinct, the common factor called faith unites them. Their devotion takes various forms: some offer daily greetings to the Lord, some sing praises and chant the Holy Scriptures while others offer money in the form of donations, special prayers and rituals., Unfortunately, where there is good, there is also evil. Some people take advantage of the religious faith of the devotees, fraudulently monetising it by creating illegal websites in the name of the deities or temples. Through such websites they collect huge amounts for special darshans, rituals and other services from the devotees but pay only a paltry sum to the administration of the temples, thereby deriving unlawful gain. This type of scam, regrettably, is a common occurrence in today's time. The authorities bound to take stern action against those perpetrators have failed to act accordingly. Such is the issue involved in the present writ petitions., The petitioners have come up with these writ petitions in the nature of public interest litigation, seeking a direction to the respondent authorities to take action against the illegal or bogus websites opened in the name of deities or temples coming under the Hindu Religious and Charitable Endowments Department and to recover the proceeds generated thereby. Particularly, WP (MD) No. 23410 of 2022 is filed for a direction to shut down the fake websites opened in the name of Arulmigu Amirthakadeswarar Temple, Thirukadaiyur, Mayiladuthurai District and to take necessary criminal and disciplinary action against the priests, gurukkals and archakars for diverting and usurping money from the devotees for conduct of various ceremonies in the name of the temple and for distorting history by making the devotees visit Sri Markandeya Temple., For the sake of convenience, we first consider the case of the petitioner in WP (MD) No. 23671 of 2022. According to the petitioner, the temples are being maintained and administered by the Hindu Religious and Charitable Endowments Department along with trustees or fit persons. For the purpose of performing poojas and various other religious activities, the devotees pay the prescribed fee in the offices established in the temples, for which receipts are issued and the amount is accounted for. The temples also receive funds by way of donations or offerings made by the devotees in the hundi kept therein. In addition, numerous foreign donors contribute huge sums to the temples. Thus, the devotees give utmost importance and reverence to the donations., The petitioner further stated that for the purpose of accounting the amounts received by the temples in various forms from the devotees, the Installation, Safeguarding and Accounting of Hundis Rules, 1975 was enacted. Similarly, the amounts received for the performance of various religious rites such as pooja, abhishekam, annadhanam, etc., are also accounted for and are periodically subjected to audit and a report is submitted to the concerned authorities. Thus, there are procedures under Chapter VIII (Budgets, Accounts and Audits) and Chapter IX (Finance) of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 for receipt of amounts for various religious activities performed in the temples., The grievance of the petitioner is that there are instances where third parties are collecting funds through fake and illegal websites by opening accounts in the name of deities or temples across the State for providing various services, pooja, etc., to the devotees. The so‑called third parties are not authorised to collect the funds on behalf of the temples. The amount in any form to the temples has to be received only by the authorised officer such as trustee, fit person or the executive officer of the temples and cannot be received by third parties for any reason. Although technology has assisted the temple administration to a great extent to offer various services at the click of a button, it has its own grey area as it is misused by third parties for unlawful gain., By using the name of the temples, the third parties created fake and unauthorised websites which look similar to the official temple websites. Such fake websites have mushroomed and proliferated in cyberspace and, if permitted to continue, will result in huge financial loss to the temples and amount to cheating the public under the garb of faith. Apart from the temples coming under the HR&CE Department, some illegal and bogus websites have been opened in the name of the temples under the control of the Mutts. The petitioner has furnished details of the bogus websites such as thirukadaiyurtemple.online, thirukadaiyurtemple.in/about, srirangam.com, etc., and the contact numbers of the persons relating to such websites. According to the petitioner, such persons claim to have links with the officers and archakars of the temples and to have rendered all the services, poojas, etc., to the devotees and they generate huge money illegally but pay only a paltry sum to the temples., Referring to section 23 of the HR&CE Act, under which the Commissioner of the HR&CE Department is empowered to exercise general superintendence and control over all the temples and ensure that the properties of the temples are properly administered and accounted for, the petitioner stated that the illegal websites opened in the name of the temples across the State have to be shut down or controlled by the first respondent, as they are causing great confusion among the devotees who are being misled by these spurious websites; and that the first respondent has to take appropriate criminal action against the owners or administrators of those illegal websites and recover the monies collected by them from the devotees unauthorisedly. The petitioner sent representations dated 19.08.2022 and 30.09.2022 to the respondents. Since no action has been taken on the said representations, he has preferred this writ petition, viz. WP (MD) No. 23671 of 2022., The case projected by the petitioner in WP (MD) No. 23410 of 2022 is that Arulmigu Amirthakadeswarar Temple, Thirukadaiyur, Mayiladuthurai is a well‑known temple in the State, which is under the control and administration of Dharmapuram Adheenam. It is renowned for performing Shashti Aptha Poorthi (on completing 60 years), Beemaradha Shanti (on completion of 70 years) and Sathabhishekam (upon completing 80 years). For the purpose of performing the said rituals, devotees from all corners of the country visit the temple, including foreigners. The payment for these religious activities is collected by the temple administration, receipts are issued and the amount is properly accounted for. For easy accessibility, such services are also rendered to the devotees online. The temple administration has created an exclusive website in the name of the temple through which devotees can book or reserve a particular service on any given date. The website has been created mainly keeping in view the convenience of devotees who come from a long distance. The online facilities provide hassle‑free service, but the same has been misused and abused by disgruntled elements for personal gain., According to the petitioner, various websites depicting the name of the subject temple and deity have been opened by unauthorised persons to earn money illegally. Such unauthorised persons collect amounts for conducting poojas and ceremonies to be performed in the temple. They also receive donations and contributions in the name of the temple or deity and make advertisements as if the websites created by them are the official websites of the temple. In such an event, devotees believing the bogus websites as official pay the charges demanded by them and fall prey to the fraudsters. If a devotee intends to make a donation or book an online ticket for a specific ritual, there is a chance that the devotee is misled by the bogus website, which claims to provide similar service as that of the temple. Further, the websites host the names of persons who are in actual positions of the temple as gurukkals or archakars without any authority or authorisation from such persons. Thus, innocent devotees are easily cheated by the website owners., Apart from these websites, the gurukkals and archakars have set up touts inside the temple and they provide details of packages for conduct of Shashti Aptha Poorthi, Ukra Radha Shanti, Beema Radha Shanti, Sathabhishekam. These packages are not part of the temple donations but are made by these touts of the gurukkals or archakars to collect money from the devotees. They charge exorbitant amounts from the devotees in the name of the temple to carry out these poojas and ceremonies., The petitioner also stated that without the approval, cooperation or consent of the temple administration, these illegal or bogus websites cannot exist. Moreover, these websites demand payment illegally for providing quick and hassle‑free services in the temple. They even offer packages which include catering, accommodation, pooja expenses, etc., thereby swaying the devotees. The devotees are made to believe that the donation reaches the temple administration, but it is swindled by the middlemen. Such illegal acts are perpetrated with the connivance and cooperation of the priests, gurukkals and archakars in the temple, who claim to represent the interest of the temple but work for their own narrow personal interest and enrich themselves at the cost of the temple administration., The performance of poojas, marriage ceremonies, abhishekam etc., is thriving like a lucrative business. The petitioner recounted that on an average, the priests, gurukkals or archakars get close to Rs.2 to 4 lakhs for performing the religious ceremonies, but only a sum of Rs.2,000 or Rs.3,000 is offered to the temple administration; and that they perform nearly 1,000 to 2,000 marriages every year, so the gravity of the amount swindled cannot be determined. Thus, according to the petitioner, the respondent authorities have to take necessary steps to control such middlemen, unruly priests, gurukkals and archakars, besides taking action against illegal and bogus websites in the name of the subject temple., The petitioner also pointed out that the priests, gurukkals and archakars in the subject temple have set up a separate temple called Sri Markandeya Temple by diluting the history and origin of Arulmigu Amirthakadeswarar Temple. It is stated that Sri Markandeya Temple is the place where Markandeya had meditated, but this is far from truth. There is no Thevaram hymn nor any history of Nayanmar having visited this temple. It has existed only for 20 years, but the gurukkals and archakars claim this temple as old as Thirukadaiyur Temple. According to the petitioner, this temple was established by the priests, gurukkals and archakars themselves with the sole intention to misrepresent the history and overshadow the Thirukadaiyur temple so as to divert devotees to visit this temple as well. The priests, gurukkals and archakars are also receiving donations from the devotees who visit Sri Markandeya Temple which goes largely unaccounted. The details of this temple are mentioned in the fake websites created by third parties. In the home page of the website trvramalingam.in it is mentioned that “TRV. Ramalinga Gurukkal” is the Chief Temple Priest of Thirukadaiyur temple, which is false. Photographs of the priests with various dignitaries, such as former Governor of Tamil Nadu, are also portrayed on the website to sway the devotees., The petitioner further stated that the same website trvramalingam.in mentions that the so‑called Sri Markandeya Temple was established and looked after by Dr. T.R. Viswanatha Gurukkal and his son, T.R.V. Ramalinga Gurukkal. It further claims that Mr. Ramalinga Gurukkal is the Chief Priest of Thirukadaiyur temple and that all poojas performed in Thirukadaiyur Temple are being done in Sri Markandeya Temple. It is projected that poojas and religious activities performed in Thirukadaiyur Temple can also be performed in Sri Markandeya Temple to obtain the divine grace of the deity. The website also claims that devotees seeking blessings of Lord Amirthakadeshwarar and Lordess Abhirami for a prosperous life at Thirukadaiyur must also visit this Markandeya Temple for a full prosperous life and for the welfare of their family. According to the petitioner, this is false propaganda unleashed by fake website owners to attract devotees to Sri Markandeya Temple and to sway them under the guise of performing various religious acts. The intention behind setting up Sri Markandeya Temple by the priests, gurukkals and archakars of Thirukadaiyur Temple is to distort history, undermine the importance of Thirukadaiyur Temple, divert devotees to the new temple and obtain donations from them. Therefore, the petitioner states that the priests of Thirukadaiyur Temple need to be restrained from making any false propaganda about Sri Markandeya Temple. Further, the misrepresentation projected in the bogus websites has to be removed and civil and criminal actions have to be taken against the gurukkals and archakars who associate themselves with the promoters of fake websites. The petitioner has brought the same to the notice of the respondent authorities for appropriate action. He has also made representations, lastly on 14.09.2022 to the respondents seeking to shut down or close the bogus websites opened in the name of Sri Thirukadaiyur Amirthakadeshwarar Temple and recover the money collected from the devotees, besides taking action against the priests, gurukkals and archakars of the temple who illegally demand money for conduct of poojas or ceremonies and illegally spread false information about Sri Markandeya Temple. However, all his attempts, including the representation dated 14.09.2022, ended in vain. Therefore, this writ petition, viz. WP (MD) No. 23410 of 2022., The learned counsel appearing for the petitioner in both writ petitions, in unison, submitted that the fake websites created in the name of the deities or temples have to be removed or closed and the proceeds generated thereunder have to be recovered by the first respondent by virtue of the power conferred under section 23 of the HR&CE Act. According to the learned counsel, the purity and sanctity have to be maintained in the temples and that the poojas, archana, abhishekams and other rituals performed in the temples should not be exploited and commercially exposed for private gain by third parties. It is further submitted that the fake websites have been created to sway the devotees for a long time. However, the department did not take any action thereof. Rather, the unauthorised creators of the websites have been allowed to enrich themselves at the cost of the temple administration. The petitioners made representations and requested the respondent authorities to take appropriate action, but the same have not been considered till date., The learned counsel for the petitioner in WP (MD) No. 23410 of 2022 submitted that among the several fake websites, primarily seven websites are swaying the devotees and engaged in collecting money for all types of pujas, archana, abhishegam, homam, prasadam besides collecting donation. For a normal puja of Rs.50, they are collecting Rs.1,051. For a prasadam offered by the temple at a cost of Rs.225, a sum of Rs.1,000 is charged. Similarly, for performing puja in all Navagraha temples, a sum of Rs.1,001 is being charged for a single puja. For performing homam, amounts ranging from Rs.5,000 to Rs.12,500 are being charged. Many special live archana, abhishegam and other rituals are performed for a minimum cost of Rs.3,000 per puja. By such acts, the individuals earn not less than Rs.15 lakhs to Rs.3 crores per month. These websites have so far raised funds from private investors, angel investors and venture capitalists to the tune of Rs.100 crores. On the other hand, the temples where these rituals are performed receive only a meagre amount. Thus, according to the learned counsel, such unlawful collection of money from the devotees in the name of the temple cannot be permitted to be sustained and stringent action has to be taken against such perpetrators. The learned counsel further submitted that a new temple called Sri Markandeya Temple, which has no historical reference or archaeological heritage, is being promoted by the priests, gurukkals and archakars of Thirukadaiyur temple. Though the petitioner has enclosed the necessary proof for all these unlawful acts along with his representations to the HR&CE Department, no action is forthcoming and the bogus websites continue to proliferate unabated. Therefore, the learned counsel prayed to the Madras High Court for issuing appropriate direction to the official respondents., Mr. Veerakathiravan, learned Additional Advocate General appearing for the respondent authorities, submitted that Arulmigu Amirthakadeswarar Temple, Thirukadaiyur, Mayiladuthurai District, is administered by Sri‑la‑sri Dharmapuram Adheenakarthar in the capacity of hereditary trustee under the control of the HR&CE Department. This temple is renowned for performing parihara homams such as Shashti Aptha Poorthi, Bhima Ratha Shanti and Sathabhishekam. The temple is thronged by people from all over the country to perform spiritual activities. Taking advantage of the staunch belief of the worshippers, several spurious websites were created by unknown persons depicting themselves as part of the temple administration and they collected money from the devotees for various services to be rendered, without the knowledge of the temple administration. After coming to know about the same, the Commissioner of the HR&CE Department, in his circular bearing R.C. No.57136/2021 P1 dated 12.04.2022, instructed all temples under the control of the Department to close down such spurious websites and create an authorised and dedicated website for the temple through the National Informatics Centre to avoid hacking and deception. Such a circular was issued as per section 116(2)(x) of the HR&CE Act and Rule 5(A) of the Collection of Income and Incurring of Expenditure Rules made thereunder. Thus, according to the learned counsel, all necessary steps have been taken for prevention of improper collection and to retrieve the amount collected unauthorisedly by private individuals using the name of the temples., The learned Additional Advocate General also submitted that an official website, thirukadaiyurabiramitemple.org, is being maintained by the temple administration and wide publicity has been given to the devotees and the general public. It is also submitted that on the basis of the complaint given by the petitioner against TRV. Ramalinga Gurukkal, fifth respondent in WP (MD) No. 23410 of 2022, a notice bearing R.C. No.8448/2022 C.1 dated 11.10.2022 was issued to the hereditary trustee of the temple calling upon him to submit an action taken report. In response, it was submitted that the administration of Arulmigu Amirthakadeswarar Temple has given a complaint to the Superintendent of Police (Cyber Crime) Mayiladuthurai on 16.09.2022 requesting appropriate action against those who have unauthorisedly created fake websites and to retrieve the amount generated by them, besides lodging a complaint on 22.09.2022 to the Inspector of Police, Poraiyur Police Station, Mayiladuthurai in this regard. Thus, according to the learned Additional Advocate General, appropriate action has already been taken by the official respondents and the allegation that the official respondents remained as mute spectators is baseless., The learned Additional Advocate General further submitted that the HR&CE Department has appointed a Fit Person for Sri Markandeya Temple, who is taking care of the administration of the temple. The temple administration is taking all necessary steps to curb illegalities in the performance of poojas and other ceremonies in the temple, inter alia to ensure hassle‑free facilities for the devotees. A specific provision has been made in the official website where devotees can book marriage ceremonies on a particular date and time slot which will be fixed. Bookings made by the devotees through physical mode will be gradually stopped. Therefore, the official respondents are taking all steps necessary to curb the middlemen from swaying the devotees through bogus websites and are periodically monitoring the duties performed by the priests, gurukkals and archakars in the temple., The learned counsel appearing for the fourth respondent in WP (MD) No. 23671 of 2022 submitted that the temple administration has already created an official website through the HR&CE Department, in the name of the temple, viz. srirangamranganathar.hrce.tn.gov.in, for the convenience of the devotees and public who offer contributions or donations to the temple; and that they have displayed the history of the temple, archaeological importance, darshan timings, festival details, etc., through their website. It is further submitted that based on the representation submitted by the petitioner, the Executive Officer of Arulmigu Aranganathaswamy Temple, Srirangam, made a complaint dated 20.10.2022 to the Assistant Commissioner of Police, Cyber Crime Wing, Tiruchirapalli, requesting to close the unauthorised websites opened in the name of the temple forthwith and to recover the proceeds received thereunder., Mr. Rajesh Kanna, learned counsel for the fifth respondent in WP (MD) No. 23410 of 2022, submitted that Sri Amirthakadeshwarar Temple, Thirukadiyur, comes under the control of the Dharmapuram Adheenam headed by His Holiness Sri Masilamani Desiga Gnanasambandha Swamigal; and that Arulmigu Markandeswaraswamy Temple at T. Manalmedu Village is a private temple managed by the ancestors of the fifth respondent and now by the fifth respondent and his family as its hereditary trustee. The learned counsel further submitted that the petitioner has made false allegations in the writ petition and that, based on his representation dated 14.09.2022, the fourth respondent has passed an order appointing a Fit Person (Thakkar) to Sri Arulmigu Markandeswaraswamy Temple, vide proceedings in Se. Mu.Na. Ka. No. 8448/2022/E1 dated 18.10.2022. According to the learned counsel, the fifth respondent family is the hereditary trustee of the temple and that the fifth respondent made an application to the fourth respondent to appoint him as the hereditary trustee of the temple as he is the next in line to his deceased father Sri T.R. Viswanatha Gurukkal. The counsel prayed for a direction to the fourth respondent to dispose of the said representation., We have heard the learned counsel appearing for all the parties and also perused the material available on record, including the photographs depicting the websites created by third parties in the name of various temples and the services offered therein., Both writ petitions have been filed complaining that some third parties, who are in no way connected with the administration of the temples, have created spurious websites depicting themselves as official websites and are collecting money from the devotees for offering various services or religious activities in the temples without knowledge of the temple administration. The petitioners' grievance is that by doing so, the third parties garner huge money, but what they pay to the temples is a pittance. Thus, through such unauthorised and fake websites, the impersonator interferes with the administration of the temples indirectly, thereby causing huge loss to the revenue of the temples across the State. In order to buttress the same, the petitioners have furnished the particulars of bogus websites, phone numbers of contact persons relating to such websites, probable income generated by providing services such as accommodation, catering, darshan, poojas or ceremonies in the temples at a hefty price, in the form of typed set of papers. It is also stated by the petitioners that the persons who create such unauthorised and fake websites definitely have a link with the archakars and officers of the temples, without whose assistance they cannot render any service to the customers. Some of the archakars, who have not been authorised by the administration, are entering the temple to perform poojas.
id_627	1	Therefore, the petitioners in unison prayed for appropriate direction to the respondent authorities to close all the unauthorised and fake websites of third parties created in the name of the temples across the State, so that the entire religious activities such as pooja, abhishekam, religious ceremonies, etc., must be offered, controlled and administered only by the administration of the temples concerned and to recover the proceeds received thereunder. In WP(MD) No. 23410 of 2022, the petitioner specifically pleaded that the priests / gurukkals / archakas of Arulmigu Amirthakadeswarar Temple have swayed the devotees visiting the Amirthakadeswarar Temple to also visit Sri Markandeya Temple by misrepresenting the history of the same. Though the petitioners made representations to the respondent authorities to take appropriate action against those illegal and fake websites run by third parties in the name of the temples / deities, nothing moved. Hence, the present public interest litigation., Undoubtedly, creating bogus / fake websites is an offence and the same is punishable under Section 66D of the Information Technology Act, 2000. As per Section 23 of the Hindu Religious and Charitable Endowments Act, the Commissioner of the Hindu Religious and Charitable Endowments Department is empowered to exercise general superintendence and control over the administration of temples and religious endowments. Therefore, in pursuance of the powers to make rules for proper collection of income by the religious institutions conferred in Section 116(2)(x), he can issue instructions to all the temples under the control of the department to create authorised and authenticated websites for temples through the National Informatics Centre, which will provide authenticity to the websites run by the temples and help in curbing the bogus ones. No effective steps have been taken by the respondent authorities. Taking note of the same and considering the importance of the issue involved herein, the Madras High Court earlier directed the learned counsel appearing for the respondent authorities to verify the allegations raised by the petitioners and file a detailed report on the next date of hearing., The learned Additional Advocate General appearing for the respondent authorities filed a status report of the third respondent in WP(MD) No. 23410 of 2022, wherein it is inter alia stated that steps are being taken to revamp the existing websites in the name of the temple and adequate publicity is being given regarding the existence of official websites of the temple to ensure that the devotees directly contact the temple administration, offer donations, make bookings for various kinds of homams, poojas, abhishekams, etc., and that the website will be made fully functional within a period of three months. The status report further states that illegal websites opened by third parties will be shut down with the assistance of the Cyber Crime authorities. After closure of the bogus websites, the cyberspace will be periodically monitored to ensure the continuance of existence of the website of the temple alone. Complaints dated 01.03.2020 and 16.09.2020 have been lodged before the Superintendent of Police (Cyber Crime), Nagapattinam and Mayiladuthurai with a specific request to take necessary action against the persons running the illegal websites in the name of the temple and to shut them down. It is also stated that the presence of touts will be stopped in the temple and the temple administration will install boards with relevant information at all vantage points inside and outside the temple premises so that the devotees can be made aware of the actual fee to be paid. The devotees are also asked to make police complaints if touts continue to harass them. The devotees are requested to make their offerings only in the hundi and also in the payment gateway provided on the official website. Further, the service of the archakas will be regularised and the twelve archakas who are engaged for the services in the temple will be made to submit biometric attendance to effectively monitor their functioning. A Fit Person has been appointed to Sri Markandeya Temple, Mayiladuthurai and he is looking after the administration of the said temple., Furthermore, it is seen from the circular issued by the Commissioner of the Hindu Religious and Charitable Endowments Department that instructions have been given to close all the private websites within a period of one week and to furnish all the information relating to the temples to the devotees / public through the ITMS portal by the National Informatics Centre, in order to avoid the issue of hacking, failing which appropriate action will be initiated against the officials concerned departmentally. Thus, it is brought to the knowledge of the Madras High Court that the respondents are taking steps to stop the illegalities and properly account the money and donations collected from the devotees, besides initiating appropriate proceedings against the third parties as well as the officials / archakas of the temples who are responsible for creation of such illegal websites., The archakas in every temple render a very important service by performing rituals. Even a staunch devotee cannot enter the sanctum, but only an archaka is permitted to go into the sanctum, touch and perform the rites. A devotee completely trusts the archakas when special rituals are performed and leaves the temple with a sense of satisfaction that his prayer has reached the deity. It is not out of place to mention that a person cannot become an archaka unless he is qualified in all the Agamas and Tirumurai. The Apex Court in Seshammal v. State of Tamil Nadu [(1972) 2 SCC 11] has summarised the importance of archakas and the belief of the devotees. Therefore, the role of archakas or priests cannot be undermined and they occupy a very significant position in worship. The archakas, by their role, serve not only the temples but also the deities by serving the devotees. Every ritual performed by them in the temple is as an employee of the temple alone and not in an independent capacity. Even if it is in an independent capacity, only the temple authorities have the right to fix the charges to be paid to such archakas of the temple, if the rituals are to be performed within the temple premises. The trust placed by devotees in the archakas is immense; a devotee performing a regular or a special ritual does not ask any questions. Every special function like marriage, Sashti Aptha Purthi, Ukra Radha Shanti, Beema Radha Shanti, Sathabishekam within the precincts of the temple is based on the belief that the performance of such functions there would bring blessings of the deity. As employees of the temples, the archakas are bound to perform the same at the rates fixed by the temple management. They have no right to capitalise the faith of the devotees by diverting the income of the temple through creation of websites as if they are propounded by the temple itself. Apart from that, it is evident that these websites are not the official websites of the temples and the amount collected towards the festivals is not directly remitted to the temples. Rather, touts collect the money and remit paltry sums to the temples or the math. Such practices feed atheists to criticize the rituals and, in turn, the deity., It is needless to say that the property of the temples or the mutts includes not only tangible but also intangible property. The word \endowment\ in Section 6(17) includes all the property belonging to the temple and also includes the temple itself. The very name of the temple and its websites are intangible assets. Devotees visit the website of the temples to know about the various services offered, the cost, timings, etc. By impersonation, various websites are created in the name of the temples or are implied to be created under authorization without the permission of the Hindu Religious and Charitable Endowments Department or the mutts, to attract devotees for performance of different poojas in the temples at the rates and costs fixed by archakas in collusion with touts. The courts, in general, have been dealing with the menace of fake or illegal websites, by which various conning activities and piracy are committed. Prohibitory orders or injunctions in many cases do not resolve the issue as the perpetrators continue to operate with mirror websites or from different IP addresses or URLs. Hence, it is necessary to follow a mechanism not only to prevent the creation and utilisation of such illegal websites, but also to permanently and continuously prevent such websites from popping up., At this juncture, it will be relevant to refer to the twin concepts of quia timet and dynamic injunction, which can act as an effective tool to block such websites. Quia timet, in Latin, means \because he fears\. The doctrine is used when there is a real danger of some right being violated and the courts, considering the right of the other person who is likely to suffer, grant the relief of injunction or, in other words, a preventive order. The doctrine is predominantly used in matters relating to intellectual property rights., The evolving legal jurisprudence in the protection of intellectual property rights has resulted in the evolution of the doctrine of dynamic injunction, by which the necessity to approach the court time and again for preventive measures is thwarted by the issuance of such an order, which meets all contingencies in the future. The concept of dynamic injunction, with regard to piracy rights applications by courts of various countries, has been discussed in detail in the judgment in UTV Software Communication Ltd. and others v. 1337X.To and others [2019 SCC OnLine Del 8002 : (2019) 78 PTC 375]. Applying the same to the present case, this Court is of the view that a dynamic preventive order is necessitated because of the sheer involvement of the number of temples, touts and illegal websites that either provide links to webpages or URLs created by third parties, impersonating the official temple sites., As already stated above, temples are places for worship visited by a host of citizens of varied cultures to obtain eternal peace and harmony and it cannot be permitted to be turned into a platform for generating profit. The temples offer certain services to devotees for a nominal fee, which will be utilised for maintenance of the temples, including salary to the staff. Therefore, it is high time that the websites opened in the name of the temples by third parties unauthorisedly to garner huge money be closed and thereafter it must be ensured that, other than the official website of the temples, there shall not be any other website in existence to render any sort of service to the devotees. The services rendered by the administration of the temples to the devotees shall not be permitted to be done by any third party to secure unlawful gain. Though it was stated by the respondent authorities that they have taken all necessary steps to stop such illegalities, the status report was filed only in WP(MD) No. 23410 of 2022 relating to Arulmigu Amirthakadeswarar Temple, Thirukadaiyur, Mayiladuthurai District. There is no information about steps taken against the illegal websites created in respect of other temples across the State. In such circumstances, the Madras High Court finds it necessary to issue certain directions in order to put an end to such illegalities and to protect the rights of the temples., Accordingly, the following directions are issued to the respondent authorities: (i) Shut down / close all the illegal / unauthorised and fake websites opened by third parties in the name of the temples / deities across the State forthwith, with the help of officials of the Cyber Crime Wing, recover the income received thereunder and file a report before this Court to that effect. (ii) Provide the Department of Telecommunications and the Ministry of Electronics and Information Technology with a list of official websites of the temples with domain names and inform them to give appropriate instructions to Internet Service Providers to continuously block all other illegal websites with fake domain names, IP addresses, URLs created by third parties in the names of the temples or in any name and style, impersonating or infringing the rights of the temples or temple authorities. (iii) Revamp the existing or create official websites in the name of the temples for rendering online services to the devotees with respect to poojas, rituals, etc.; the website shall contain a booking mechanism for all poojas, ceremonies and other religious activities to be performed in the temples, and for making donations. (iv) Adequate publicity regarding the existence of the temple websites must be made by the temple administration as per the guidelines of the Hindu Religious and Charitable Endowments Department. The official/authentic websites should carry a disclaimer on the homepage warning the public about fake websites. A separate dedicated contact phone number of an officer must be given in the websites of the temples so that devotees can inform about the existence of bogus websites. If any such complaint is received, the Department shall swiftly act upon the same and take necessary civil and criminal action. (v) Officials of the Cyber Crime Wing shall take immediate action on complaints received from the public, devotees or temple administration about unauthorized and fake websites in the name of the temples. They shall also conduct periodical inspection of websites and report the same to the respondent authorities for appropriate action. The Cyber Crime Wing must also communicate to the Department of Telecommunications and the Ministry of Electronics and Information Technology periodically about the existence of any illegal websites, domains, IP addresses and URLs and ensure they are blocked. (vi) The temple administration across the State must take all efforts to prevent touts from providing any sort of service to the devotees and collecting monies, donations or contributions in the name of the temples. If any complaint is received in this regard, action must be taken swiftly. (vii) Place adequate boards at all vantage points inside and outside the temple premises furnishing information about the temples, fees to be paid, etc., and stating that touts are banned from offering any service, so that devotees can directly approach the temple authorities for booking. (viii) Place hundis throughout the temples so that devotees can make their offerings. The boards must carry the information that devotees are required to offer their contributions or donations only in the hundi or through the payment gateway provided on the official websites. (ix) For all services rendered in the temples across the State, such as poojas, marriage ceremonies, abhishekams, etc., amounts will be collected only by the administration of the temples and due receipts will be given to the devotees. In the absence of tickets/receipts issued by temple or mutt authorities, no one should be permitted to perform any religious activities in the temples. The amounts collected shall be properly accounted for and audited by the authorities concerned. Only the archakas, photographers and guides authorised by the mutt or officials shall be permitted inside the temple upon registration with proper identity cards, and third parties and touts must be prevented. Necessary civil and criminal action must be initiated against them forthwith for any violation. (x) The procedures preceding the religious ceremonies in all the temples across the State have to be streamlined. The Commissioner of the Hindu Religious and Charitable Endowments Department shall monitor the religious activities performed in the temples and take immediate action if there is any illegality in the temple administration. A systematic, transparent and smooth functioning of the religious activities of the temples, similar to that of Thirumala Devasthanam, Sabarimala, etc., has to be devised. (xi) The Fit Person appointed for Sri Markandeya Temple shall ensure that all receipts and expenditures of the said temple are duly accounted for and that the services of the temple are offered only through an authorised website or in any other manner as may be prescribed by the Commissioner of the Hindu Religious and Charitable Endowments Department. (xii) The status report shall be filed by the officials of the Hindu Religious and Charitable Endowments Department and mutt authorities before this Court within a period of three months., Both writ petitions stand disposed of with the aforesaid directions. It is open to the fifth respondent in WP(MD) No. 23410 of 2022 to work out his remedy with regard to the claim of hereditary trustee, as per law. No costs. The matters shall be posted before this Bench after three months for reporting compliance.
id_628	0	Ms. Kangana Ranaut, Petitioner versus Municipal Corporation of Greater Mumbai and others, Respondents. Doctor Birendra Saraf, Senior Advocate as well as Mr. Prasanna Bhangale, Ms. Monisha Mane Bhangale, Mr. Rizwan Siddiquee in behalf of Siddiquee and Associates for the Petitioner. Mr. Aspi Chinoy, Senior Advocate as well as Mr. Anil Y. Sakhare, Senior Advocate, Mr. Joel Carlos, Ms. Rupali Adhate, Ms. Pallavi Thakar, Ms. Oorja Dhond in behalf of Ms. Aruna Savla for Municipal Corporation of Greater Mumbai and Mr. Bhagyavant Late. Mr. Pradevent Thorat for Mr. Sanjay Rajaram Raut. Ms. Jyoti Chavan, Additional Government Pleader for the State., The Respondents in the above Writ Petition are incorrectly numbered. The Advocate appearing for the Petitioner is allowed to carry out amendments in terms of the Draft Amendment, which is taken on record and marked X for identification. The Learned Advocate appearing for the Petitioner is allowed to carry out necessary amendments regarding the numbering of the Respondents and re-number the Respondents. Amendments to be carried out forthwith. Re‑verification is dispensed with., The Learned Advocate appearing for the Petitioner shall forthwith forward a copy of the amended Writ Petition to the Advocates for the Respondents., Shri Pradevent Thorat, the Learned Advocate appearing for Shri Sanjay Rajaram Raut, states that Shri Raut is desirous of filing his Affidavit in Reply dealing with two of the allegations made against him in the above Writ Petition. However, since Shri Raut, being a member of Parliament, is currently in Delhi, Shri Raut be given some time to file his Affidavit in Reply., Shri Anil Sakhare, the Learned Senior Advocate appearing for Municipal Corporation of Greater Mumbai, and Mr. Bhagyavant Late, Executive Engineer, H/West Ward, also seek time to enable Mr. Late to file his Affidavit in Reply dealing with the allegation(s) made against him personally by the Petitioner., We have explained to both the Learned Advocates, who are seeking time, that since forty percent of the Petitioner's bungalow was already demolished on 9 September 2020 and the bungalow continues to stand in partially demolished condition since then, it is likely that some mishap may be caused due to the heavy rainfall in Mumbai. It is therefore necessary to hear the matter at the earliest. The Bombay High Court has therefore also informed the Learned Senior Advocate Shri Sakhare and the Learned Advocate Shri Pradevent Thorat that the Court will start hearing the counsel for the Petitioner from 03:00 p.m. tomorrow and will allow their respective clients to file their Affidavit in Reply as and when it is their turn to address the Court in the next week., Stand over to 25 September 2020 at 03:00 p.m. to enable the Learned Senior Advocate appearing for the Petitioner to commence the argument and submissions. In the meantime, the earlier ad‑interim Order shall continue., This Order will be digitally signed by the Personal Assistant of the Bombay High Court. All concerned will act on production by fax or email of a digitally signed copy of this Order.
id_63	0	These petitions coming on for admission this day, Indore High Court passed the following: Heard finally, with the consent of the parties., This petition (M.Cr.C. No.6308 of 2022) has been filed by the petitioners under Section 482 of the Criminal Procedure Code, for quashing the FIR lodged at Crime No.999 of 2018 registered at Police Station Vijay Nagar, Indore under Sections 498A, 323, 506, 34, 325 and 313 of the Indian Penal Code and also the subsequent proceedings which are pending in Special Trial No.578 of 2019 in the Court of the 16th Additional Sessions Judge, Indore., Since charges have already been framed in the aforesaid case, the petitioners, by way of extra precaution, have also filed a separate Criminal Revision No.3272 of 2022 against the framing of charges dated 18.07.2022 and 04.08.2022 under Sections 498A and 313 of the Indian Penal Code against all the petitioners, and additional charges against petitioner No.1 under Sections 323, 325 and 506 of the Indian Penal Code; and since the facts are identical, the aforesaid criminal revision is also being disposed of vide this order., The octogenarian father and mother of petitioner No.1 are parties. Out of this marriage, petitioner No.1 and respondent No.2 have a daughter who is now aged 20 years and presently resides with the petitioners. The marriage of petitioner No.1 with respondent No.2 was solemnized on 23.04.2000., The following proceedings were filed by the parties: HMA No.1715/2018, a divorce petition by petitioner No.1 under the Hindu Marriage Act (Oct.2018), dismissed on 01.02.2023; MJC No.513/20, filed by respondent No.2 under Section 125 of the Criminal Procedure Code, dismissed on 01.02.2023; HMA No.627/2020, filed by respondent No.2 under Section 9 of the Hindu Marriage Act, dismissed on 01.02.2023; UNCR No.7301 of 2019, filed by respondent No.2 under Section 12 of the Domestic Violence Act, 2005 before the Judicial Magistrate First Class, Indore, dismissed on 17.02.2023; and an application under Section 13B of the Hindu Marriage Act for decree of divorce on the basis of compromise in Family Court, HMA No.187/2023, with divorce decree awarded on 02.02.2023., Thus, finally the dispute was settled between the parties after the application under Section 13B of the Hindu Marriage Act was decreed on 02.02.2023, and a decree of divorce by mutual consent was obtained. The decree stipulated in paragraphs 15 and 16 of the application that respondent No.2 would receive a sum of Rs.50 lakhs and would ensure that each case lodged by her in any Court of India shall be withdrawn. The decree of divorce has also been filed on record., After the aforesaid decree was passed, the present case at Crime No.999 of 2018 was also pending, with the charge sheet filed in December 2018. As no application for compounding or quashment was filed by respondent No.2, the present petition has been filed. The petitioners contend that after the decree and the receipt of Rs.50 lakhs, respondent No.2 refused to withdraw the present case lodged under Sections 498A, 323, 506, 34, 325 and 313 of the Indian Penal Code., Counsel for the petitioners submitted that the case was lodged by respondent No.2 only to harass the petitioners. The FIR does not allege any demand of dowry, and although it alleged that the petitioners aborted the pregnancy of respondent No.2, no material was produced at the time the charge sheet was filed. A supplementary charge sheet later produced a report from Bombay Hospital, Indore dated 03.01.2009 in support of the allegation that the pregnancy was aborted by the petitioners., Shri T. C. Jain, learned counsel for the petitioners, drew the attention of Indore High Court to a photograph captured in the CCTV of the petitioners' house showing respondent No.2 attempting to strangle herself with her dupatta, which was filed along with the charge sheet. A certificate regarding Medical Termination of Pregnancy (MTP) of respondent No.2 dated 05.08.2020, filed with the supplementary charge sheet, certifies by Bombay Hospital, Indore that the MTP was performed on 03.01.2009, i.e., 11 years ago. It is submitted that the MTP cannot be termed an illegal abortion by the petitioners. Thus, the petitioners pray that the petitions be allowed and the charges framed against the petitioners be quashed., Counsel for the petitioners also relied upon a decision of Indore High Court in Raghvendra Kumar v. State of Madhya Pradesh and Another, Criminal Revision No.3036 of 2023 dated 26.10.2023, to substantiate that stale claims are liable to be rejected. The petitioners further relied upon a decision of the Supreme Court in Abhishek v. State of Madhya Pradesh, Criminal Appeal No.1457 of 2015 dated 31.08.2023., The petition is opposed by counsel for respondent No.2, who submits that no case for interference is made out because, despite respondent No.2 having agreed to withdraw all cases, Section 313 of the Indian Penal Code is non‑compoundable and therefore she is justified in prosecuting the petitioners in the present case., Counsel for the State has opposed the prayer., Indore High Court heard counsel for the parties and perused the record., From the record, the undisputed facts are that petitioner No.1 and respondent No.2's daughter, who is around 18 to 20 years old, is presently residing with the petitioners. Petitioners Nos.2 and 3 are octogenarians, aged 82 and 80 years in 2022. Respondent No.2 has already received a sum of Rs.50 lakhs pursuant to the decree of divorce dated 02.02.2023, and despite the specific undertaking in the agreement, she has not made any effort to have the criminal case arising out of Crime No.999 of 2018 quashed or to support the present petition, and is opposing it., It is true that a case under Section 313 of the Indian Penal Code is non‑compoundable. However, considering that respondent No.2 obtained her Medical Termination of Pregnancy in 2009, it is difficult for Indore High Court to perceive that the termination, performed through a legal procedure at a reputed hospital, can be stretched to constitute an offence of causing miscarriage without consent under Section 313 of the Indian Penal Code after a period of around 12 years., Apart from the MTP certificate issued by Bombay Hospital, Indore, there is nothing on record to support the allegation under Section 313. If the prosecution alleges that the termination was performed without consent, the hospital would also be liable, but the hospital is not an accused. The certificate states that no other supporting documents are available due to lapse of time. In such circumstances, Indore High Court is of the considered opinion that even if the documents filed with the charge sheet are accepted as true, the charge under Section 313 is not made out and appears to have been added with mala fide intentions to harass the petitioners., As for the other offences under Sections 498A, 323, 506, 34, 325 of the Indian Penal Code, omnibus allegations have been made by the complainant. Considering that a decree of divorce by mutual consent has already been passed, respondent No.2 was bound to withdraw the charges but deliberately, with ulterior motives, refused to withdraw even that part of the charge sheet. Thus, the conduct of respondent No.2 in continuing the criminal case despite the settlement and receipt of Rs.50 lakhs amounts to misuse of the process of the court., The Supreme Court in Mohd. Shamim and others v. Nahid Begum and another (AIR 2005 SC 757) observed that when a compromise has been reached and relief obtained, the criminal complaint filed to harass the respondents should not be allowed to continue, as it would be an abuse of the process of the court., Indore High Court, in Raghvendra Kumar (supra), observed that the process of the court cannot be used to settle personal scores of private parties. The present case is an offshoot of a matrimonial dispute, and the complainant wife cannot be allowed to keep the alleged offence in hibernation for years to use it as leverage over her husband and other accused, who are at a disadvantage due to lapse of time. The courts are meant for serious litigants seeking redress of genuine problems, not for those who misuse it., In Abhishek (supra), the Supreme Court held that petitions by a husband’s family members to quash criminal proceedings launched by the wife in matrimonial disputes are not rare. The Court noted that false implications through general omnibus allegations in such disputes constitute misuse of the process of law, and allowing prosecution without specific allegations would be an abuse of the process., In view of the facts and circumstances of the case and the decisions of the Supreme Court and this Court, both petitions are allowed with a cost of Rs.1 lakh, and the FIR lodged at Crime No.999 of 2018 registered at Police Station Vijay Nagar, Indore under Sections 498A, 323, 506, 34, 325 and 313 of the Indian Penal Code, and the subsequent charges framed by the trial Court on 18.07.2022 and 04.08.2022, and the proceedings pending in Special Trial No.578 of 2019 are hereby quashed., The cost of Rs.1 lakh is imposed to caution unscrupulous litigants that the courts cannot be taken for a ride. The cost shall be paid by respondent No.2, who has already received Rs.50 lakhs from the petitioners, to petitioner No.1 within four weeks by crediting the amount to the bank account of petitioner No.1, the details of which can be obtained from the Registry of Indore High Court. Petitioner No.1 is directed to furnish his bank account details before the Registry so that this order can be complied with.
id_630	0	Interim Application No. 114865 of 2020, Interim Application No. 153341 of 2019, Interim Application No. 120307 of 2020, and Interim Application No. 123299 of 2020 were considered by Justice Uday Umesh Lalit. This Order shall dispose of the following three sets of applications: (A) Interim Application No. 168186 of 2018 (Z‑68), Interim Application No. 109882 of 2020 (Z‑309 and R‑103) and Interim Application No. 114865 of 2020 (Z‑318) filed by the Court Volume Number Association and by some applicants who have booked apartments in the project developed by the Company; (B) Interim Application No. 153341 of 2019 (Z‑233), Interim Application No. 120307 of 2020 (I‑155) and Interim Application No. 123299 of 2020 (I‑158) filed by the Company; and (C) Interim Application No. 6397 of 2021 (Z‑342) filed by Religare Finance Limited, the creditor of the Company., By a lease deed dated 03 February 2011 executed between the Greater Noida Industrial Development Authority (GNIDA) and the Company, plot bearing No. GH‑06A in Sector Tech Zone‑IV, Greater Noida was permitted to be developed by the Company subject to certain conditions. The lease deed specified that the Company was a special purpose company incorporated by a consortium of six entities, whose shareholdings were as follows: 1. Vidhyashree Buildcon Private Limited – 26% (Lead Member); 2. Nishant Creations Private Limited – 19% (Relevant Member); 3. Anjali Buildcon Private Limited – 20% (Relevant Member); 4. Agarwal Associates (Promoters) Limited – 5% (Relevant Member); 5. Elegant Infracon Private Limited – 19% (Relevant Member); 6. Stunning Constructions Private Limited – 11% (Relevant Member). The consortium qualified jointly for the bid and secured the allotment of the plot as the highest bidder. Through its lead member Vidhyashree Buildcon Private Limited, the consortium approached the lessor under clause C‑8 of the brochure/bid document to subdivide the plot with the following lease rights: Plot GH‑06A Techzone IV – 80,026.62 square metres allocated to Vidhyashree Buildcon Private Limited, Nishant Creations Private Limited, Anjali Buildcon Private Limited, Agarwal Associates (Promoters) Limited and Stunning Constructions Private Limited as a Special Purpose Company; Plot GH‑06B Techzone IV – 17,700 square metres allocated to Elegant Infracon Private Limited as a Relevant Member. The consortium agreed that Vidhyashree Buildcon Private Limited, having its registered office at H.No. 195, 2nd Floor, Back Side, Ram Vihar, Delhi‑110092, would remain the lead member and the lessee would solely develop the project on the demarcated Builders Residential/Group Housing Plot No. GH‑06A, Sector Techzone‑IV, Greater Noida measuring an area of 80,026.62 square metres., The project to be developed by the Company was widely advertised through brochures and advertisements as the Amrapali La Residentia project, promising delivery of apartments within thirty‑six months. The relevant portion of the brochure stated: 'Amrapali has transformed the entire concept of living with its various value‑added residential projects. Once more living up to its reputation it is presenting a unique residential condominium identified as Terrace Homes for its novel concept. Terrace Homes are two, three and four bedroom apartments with individual terraces assigned to them. A three‑sided open terrace that is virtually an ocean of fresh air is a star feature of every apartment of this modern and architecturally improved housing. The terraces are reminiscent of the lush green lawns in private villas and serve as the lungs of the apartments. This heart of the apartment can be used for multipurpose household occasions. Where dedication is redefined, real estate and construction have been redefined by Amrapali Group to such a grand extent that it has become a brand name. Amrapali Group has successfully proved its forte in varied real estate verticals from residential housing solutions to commercial edifices to IT parks and educational institutions. In the last couple of years Amrapali Group has contributed to the phenomenal growth of the real estate and infrastructure industry with many turnkey solutions. The Group strives for quality and ensures the best of technology, planning, design and construction for all of its projects. This has resulted in star projects like Amrapali Green, Amrapali Royal, Amrapali Village, Amrapali Awadh, Amrapali Vaishali and Amrapali Exotica Apartments.', Relying on the promises made in the brochure and believing the representation that the project was of Amrapali Group, various interested parties booked apartments, paying booking amounts running into several crores. It appears that three thousand two hundred fifty‑six apartments were to be constructed and developed in three phases: fourteen hundred eight apartments in the first phase, nine hundred ninety‑six apartments in the second phase and eight hundred fifty‑two apartments in the third phase., The Writ Petition (Civil) No. 940 of 2017 (Bikram Chatterji and others v. Union of India and others) and other connected matters filed in the Supreme Court of India sought to highlight acts of commission and omission on the part of the Amrapali Group of Companies and persons in charge of its affairs, alleging that the amounts invested by the apartment holders were siphoned away by the Amrapali Group. While entertaining these writ petitions, by an order dated 06 September 2018 the Supreme Court of India directed that forty‑six companies, including the Company, be audited by forensic auditors. Accordingly, the forensic auditors considered various issues and submitted their reports in February and April 2019. With respect to the Amrapali La Residentia project, the forensic auditors noted: 'La Residentia is a large project having more than three thousand two hundred dwelling units launched in 2010‑11, with an equity shareholding of 19.75% in the name of Stunning Construction Private Limited. Stunning Construction Private Limited, an Amrapali Group company, holds 19.75% shares in the company. Stunning has been a consortium partner since the beginning and land was allotted by Noida authorities to the five‑member consortium including Stunning. The project was launched as an Amrapali Group project and was marketed accordingly. As per discussions with directors of La Residentia Developers Private Limited, they broke up with Amrapali Group in 2017, the year when the writ petition was filed before the Supreme Court of India. It was reported that a marketing agreement was entered into between La Residentia Developers Private Limited and an unnamed Amrapali entity whereby Amrapali would market its project for a consideration of Rs 16 crore. Although the agreement was signed, Amrapali did not provide a copy to the signatory. This indicates that Amrapali directors were exercising significant influence over La Residentia Developers Private Limited. Of the Rs 16 crore payable to Amrapali, Rs 4 crore were paid to Saffron Promart Consultancy Private Limited, owned and controlled by Chief Financial Officer Chander Wadhwa, under a verbal instruction of Mr. Adikhari, General Manager/Deputy General Manager (Accounts) of Amrapali Group. Directors of La Residentia Developers Private Limited were acting under the supervision of Mr. Adhikari, a middle‑level management officer. The project was conceived by Mr. Anil Kumar Sharma and Mr. Shiv Priya, directors of Amrapali Group, with Mr. Sanjeev Kumar, Mr. Mukesh Kumar Roy and others serving only as a front. No funds were contributed by the consortium partners; any funds contributed were withdrawn shortly thereafter, and additional funds were provided to them as interest‑free loans and advances. Amrapali Group companies transferred some of their buyers to the Company. The list of unsold inventory was sent to Mr. Anil Sharma, who decided that certain buyers from Amrapali Group companies be shifted to La Residentia. This demonstrates that La Residentia was under the direct control of Mr. Anil Sharma and Mr. Shiv Priya and is an entity of Amrapali Group. The Company also uses the Amrapali brand name and trademark on its letterheads, and its website (lareresidentia.com) presents the project as an Amrapali Group project. According to a statement recorded from Mr. Sanjeev Kumar, Director of La Residentia Developers Private Limited, approximately Rs 4 crore were paid as fees for use of the Amrapali brand name to Saffron Promart Private Limited, which is controlled by Chief Financial Officer Chander Wadhwa. No bills have been produced. Statutory Auditor CA Anil Mittal and Chief Financial Officer Chander Wadhwa were in collusion, and payments were made by Mr. Mittal to Mr. Wadhwa for sharing fees received from Amrapali Group for work awarded to Mr. Mittal. Mr. Wadhwa is identified as one of the masterminds, along with other promoters and directors, behind the entire scam. He facilitated movement of funds by creating a web of companies within and outside the group. His relatives were made partner investors in La Residentia and Heartbeat City projects. Funds were invested in Patel Advance JV (Neo Town Project Noida) and Euphoria Sports City.', The observations of the forensic auditor were quoted with approval by the Supreme Court of India in its judgment dated 23 July 2019. The judgment also noted observations concerning another Amrapali Group project, Heartbeat City. The Heartbeat City Developers Private Limited project involves three companies: Pebbles Prolease Private Limited, Three Platinum Softech Private Limited and Baseline Infradevelopers Private Limited. The project is an Amrapali Group project carved out from the Amrapali Group of Companies while the case was pending before the Supreme Court. Funds were invested in the project through Mr. Amit Wadhwa, who held a twenty‑five percent partnership in Pebbles Prolease Private Limited and Three Platinum Softech Private Limited. The corporate office shares the address of Amrapali Corporate Tower in Sector 62, Noida. The purpose of carving out the project from Amrapali is not known. It was indicated that Mr. Vaibhav Jain and Mr. Sankalp Shukla are the key managerial persons. In the absence of accounting records, further analysis could not be pursued., In paragraphs 61 and 62 of the same judgment, the court observed: (i) The directors along with trust partners discreetly divided the projects into two categories: (a) projects in which home‑buyers’ funds were received and subsequently diverted; and (b) projects to which home‑buyers’ funds were diverted. These projects were subsequently separated or demerged from Amrapali Group, for example Heartbeat City, La Residentia and Vinayaka Square. (j) Several dummy companies were formed in the names of office boys and peons. Technically, the initial allotments were void ab initio. The amount received from home buyers exceeded the amount spent on construction and land payment. The sole objective of taking loans was to divert funds to other ventures to create assets in the names of family members and to finance movies. Villas were purchased at tourist destinations for personal use at the expense of middle‑class and low‑income buyers. (k) Several companies were created solely for the purpose of routing funds. These companies did not have any material transaction related to their stated objects and did not conduct any business since incorporation. The report further listed companies such as Jhamb Finance & Leasing Private Limited, controlled by Chief Financial Officer Chander Wadhwa, which advanced loans amounting to Rs 875 crore to related and unrelated entities; Gaurisuta Infrastructure Private Limited, created for diverted funds; Neelkanth Buildcraft Private Limited, formed to purchase shares from J.P. Morgan at exorbitant rates and consisting of office boys and relatives of Statutory Auditor Anil Mittal; and Stunning Construction Private Limited, which, according to the forensic auditors, should either surrender nineteen point seven five percent of the land or six hundred thirty‑two flats., The judgment further stated in paragraph 153 that non‑payment of dues to the Noida and Greater Noida authorities and to banks cannot impede occupation of flats by home buyers because the home‑buyers’ money has been diverted due to inaction of officials of the Noida and Greater Noida authorities. The authorities cannot sell the buildings or demolish them, nor can they enforce charges against home buyers, leased land or projects. Similarly, banks cannot recover money from the projects as the funds were not invested in the projects. Home‑buyers’ money has been fraudulently diverted, and therefore fraud cannot be perpetuated against them by selling the flats and depriving them of their hard‑earned savings. The Noida and Greater Noida authorities must issue a Completion or Part Completion Certificate, as appropriate, to execute a tripartite agreement and register deeds in favour of the buyers within one month. In paragraph 154, the court ordered: (i) The registration of Amrapali Group of Companies under the Real Estate Regulatory Authority shall stand cancelled; (ii) The various lease deeds granted in favour of Amrapali Group of Companies by the Noida and Greater Noida authorities for the projects in question shall stand cancelled, and the rights shall vest in the court‑appointed receiver; (iii) The Noida and Greater Noida authorities shall have no right to sell the flats of the home buyers or the leased land for recovery of their dues; such dues shall be recovered from the sale of other attached properties, a direction that also applies to the recovery of dues of various banks; and (iv) The National Buildings Construction Corporation (NBCC) is appointed to complete the various projects and hand over possession to the buyers, with a commission fixed at eight percent., The Supreme Court of India found that the Amrapali La Residentia project fell into the second category where home‑buyers’ funds were diverted and the project was subsequently separated from the Amrapali Group. It was also found that Stunning Construction Private Limited (referred to as Stunning), a member of the consortium that set up the Company as a special purpose company, was part of the Amrapali Group. In accordance with Stunning’s shareholding, the court directed that either nineteen point seven five percent of the land or six hundred thirty‑two flats, constituting about nineteen point four percent of the total number of flats, be surrendered by the Company, representing the contribution of flat buyers whose funds were diverted., In the subsequent order dated 14 October 2019 passed by the Supreme Court of India, the objections raised on behalf of the Company were noted. The court heard Mr. Rakesh Khanna, learned senior counsel appearing for La Residentia, and observed that the judgment requiring surrender of six hundred thirty‑two flats or the value of nineteen point seven five percent of the share must be complied with. The court noted that some construction costs had been incurred by La Residentia. While handing over or selling the flats, the amount corresponding to construction costs must be paid to La Residentia, and the remaining amount must go to the Amrapali Group. The court directed La Residentia to submit an affidavit within fifteen days stating the expenditure undertaken for construction of each flat and the total amount invested in the construction of six hundred flats currently available for sale. The company was enjoined from selling the flats that are available until the affidavit is filed., The present set of applications must be considered against the backdrop of the orders dated 23 July 2019 and 14 October 2019. At the time those orders were passed, Interim Application No. 168186 of 2018 (Z‑68) was already on record of the Supreme Court of India. That application, filed on 19 November 2018, referred to the brochures circulated and advertised by the Company and asserted that flat buyers had booked their apartments believing the project to be an Amrapali Group project. The application highlighted that the coloured brochure bore the caption ‘Amrapali La Residentia’ and that the project was designed and propagated by Amrapali Group, referencing other Amrapali projects such as Amrapali Eden Park, Amrapali Leisure Valley, Amrapali Sapphire and Amrapali Centurion Park. The Allotment‑cum‑Flat Buyers Agreement bore the registered address of Amrapali Corporate Tower, C‑56/40, Sector‑62, Noida, which is the corporate office of the Amrapali Group. Demand letters to home buyers, payment receipts and the website also displayed the Amrapali La Residentia logo, indicating that it was an Amrapali project. The application principally prayed: (b) to pass an appropriate order directing delivery of the dream homes of the applicants in Amrapali La Residentia situated at GH‑06A, Tech Zone‑4, Noida Extension at the earliest; (c) to fix liabilities of the directors of M/s La Residentia Developers Private Limited for delaying the project; and (d) to attach the movable and immovable properties and bank accounts of M/s La Residentia Developers Private Limited as well as all its directors. These prayers were not granted by the Supreme Court of India in either its order dated 23 July 2019 or its order dated 14 October 2019., On or about 1 October 2019, Interim Application No. 153341 of 2019 (Z‑233) was filed by the Company, stating that although Stunning held a nineteen point seven five percent shareholding in the Company, the Company had always maintained an independent legal existence and there was no direct or indirect financial dependence on the Amrapali Group. The Company asserted that it had not received any money from any Amrapali Group company except a paid‑up capital contribution of Rs 13,580 (Rupees Thirteen Thousand Five Hundred Eighty Only) received from Stunning in exchange for thirteen point eight five percent shares at the time of its inception. The Company further explained that it had entered into a marketing arrangement with the Amrapali Group, agreeing to use the Amrapali name for marketing the project in consideration of Rs 75 per square foot booked or sold. The Company submitted that, as a private limited company, Stunning, as a shareholder, is entitled only to a proportionate share of any distributable dividend and cannot receive profits in cash or otherwise beyond that share. The Company argued that the rationale for surrendering six hundred thirty‑two flats was not just and proper, and that the number of flats should be determined by apportioning nineteen point seven five percent of the total built‑up space, which may not correspond to the unsold inventory. The Company further contended that the six hundred thirty‑two flats of unsold inventory are at various stages of construction across different towers; some are ready for handover, some under construction, and some yet to be constructed. To complete the project, the Company asserted that it needed to maintain continuity of construction through regular flow of funds, which would come from the sale of the unsold inventory. The Company proposed that the only viable option was to offer nineteen point seven five percent in profits and loss of the Company at the stage of project completion. Consequently, the Company prayed that the order dated 23 July 2019 be recalled, or alternatively, that the Company be directed to deposit nineteen point seven five percent of the projected profits after adjusting for construction costs and proportionate development costs, as well as other amounts receivable from the Amrapali Group., Similar submissions were thereafter made by the Company in Interim Application No. 120307 of 2020 (I‑155), filed on 11 November 2020, and in Interim Application No. 123299 of 2020 (I‑158), filed on 25 November 2020. In both applications, the Company sought permission to raise funds through the sale of the six hundred thirty‑two flats, asserting that without such sale it would be impossible to raise finances and complete the project. The Company also prayed for several directions deemed necessary for overall completion of the project, including: (A) directing the court‑appointed receiver to establish and operate an escrow account into which all receivables of the Company, whether from sold or unsold inventory or from fresh financing, would be deposited; (B) directing the Greater Noida Industrial Development Authority to extend the validity of its statutory approvals, which had lapsed in November 2019, until the anticipated completion date of December 2022; (C) directing the Uttar Pradesh Real Estate Regulatory Authority (UP RERA) to extend the validity of the RERA registration, which had lapsed on 15 June 2019, until December 2022; (D) directing UP RERA to recall its orders, refrain from taking coercive measures against the applicant, and refrain from passing any such orders until the disposal of the present proceedings; (E) directing the relevant authorities, including GNIDA and UP RERA, not to issue adverse rulings, orders or impositions against the Company until December 2022; (F) directing GNIDA to re‑validate the statement of land dues after reducing the penal interest levied on land dues over the years, noting that the Company has repaid more than the principal amount originally owed and that the current demand is highly inflated; and (G) directing GNIDA to continue registering sub‑lease deeds in the names of home buyers, as registrations had been paused due to non‑payment of land dues, and to withdraw undue impositions on the Company. The Company emphasized that the project had been adversely affected between July 2011 and May 2015 due to cancellation of land allotment, farmer protests, issues of enhanced compensation to farmers, and other related legal matters, all of which were beyond the Company’s control.
id_630	1	These issues practically detailed the progress of the Project on more than one occasion and consequently penal obligations were forcefully imposed by the Greater Noida Industrial Development Authority (GNIDA) upon the Applicant company for such period of disruption, rather than adequately compensating the Applicant company for stoppage of construction at the Project, for causes which were directly attributable to GNIDA. At that time, even the burden of payment of enhanced compensation payable to farmers to end the dispute between farmers and GNIDA/State Government in respect of land acquisition was conveniently passed onto allottees of project land like the Applicant company, which was neither anticipated nor accounted for by the Applicant company. With respect to this issue, the Applicant company had filed a representation before GNIDA and subsequently the Applicant company had to move a writ petition before the Honourable High Court of Uttar Pradesh at Allahabad, for claiming benefits under the Zero Period Policy. However, for lack of action on part of GNIDA, no benefit has been extended to the Applicant company on this account till date. It is therefore necessary that such benefit is now extended to the Applicant company, firstly for the reason that such benefit is long due from GNIDA who has been avoiding to settle this issue with the Applicant company, and also for the reason that in absence of such relaxation, respite or adjustment from GNIDA, the Project is unlikely to be net positive at the time of its completion. Further, necessary directions are required for the homebuyers who should be directed to strictly pay their dues regularly. The ongoing state of affairs has resulted in homebuyers withholding release of their dues to the Applicant company, such inflow of funds being critical and necessary for overall completion of the Project. It is a matter of record that such non‑payment has had a direct impact on flow of funds and pace of construction of the Project. Another aspect, which if given due consideration, may lead to better profitability in the Project is the loan facility availed by the Applicant Company from Religare, a Non‑Banking Financial Company (NBFC). The Applicant Company has already repaid an amount of Rs. 52,61,51,242/‑ as against principal loan amount of Rs. 50,00,00,000/‑. The situation as on date is such that the said financial institution has created a lien over the bank account of the Applicant Company to recover loan repayment, which as on date stands at Rs. 15,29,61,019/‑ as per demand of Religare, and this has also led to immobilisation of funds for utilisation towards completion of the Project., IA No. 123299 of 2020 referred to the arrangements arrived at by the Company and the association of Home Buyers as under: It is also relevant to highlight that before any homebuyer or association of homebuyers approached the Honourable Supreme Court of India with intent to deliver the project and in relation to management of funds and bringing transparency and objectivity necessary to inspire confidence of homebuyers with respect to fairness and effective management of affairs of the Applicant company qua the project, the Applicant company entered into several Memoranda of Understanding (MOUs) with representatives or core committees of flat buyers of various towers. As per the said MOUs the home buyers have committed to contribute their dues to a designated bank account bearing No. 510 101004328980 maintained by the Applicant company with the Corporation Bank, Ramprastha, Ghaziabad, Uttar Pradesh (for towers 20, 24, 25), in bank account bearing No. 510341000674084 (for towers 28 and 29) and No. 510341000674092 (for tower 22) maintained by the Applicant company with the Corporation Bank, Sector 62, Noida, Uttar Pradesh. The designated representatives of allottees/homebuyers are joint signatories in the bank accounts, which further enables the homebuyers to keep a strict check on the source of funds and utilisation of such funds towards construction of the project. A copy of the Memorandum of Understanding entered into between the Applicant company and the homebuyers has been enclosed herewith and marked as Annexure P‑4., The homebuyers who have entered into MOUs with the respondent company have contributed a sum of Rs. 3,04,66,795/‑ . Likewise, if all the allottees of the project come forward and gather resources with the respondent company, the construction status shall receive a significant boost. The summary with details of funds received in such designated bank accounts and amounts spent on construction and related activities in terms of the said MOUs, computation of the figure of Rs. 3,04,66,795/‑ (Rs. 1,63,74,372/‑ + Rs. 1,40,92,423/‑) which have been deposited by the homebuyers after entering into MOUs is annexed herewith as Annexure P‑5., IA No. 109882 of 2020 (Z‑309) was filed by the Association submitting that Amrapali La Residentia Project was in every sense a project of the Amrapali Group of Companies and, therefore, the flat buyers were entitled to similar protection as was extended to the other home buyers by order dated 23.07.2019 passed by the Honourable Supreme Court of India. In the additional affidavit filed on 16.11.2020 (R‑103), the Association also asserted that as many as three members of the consortium including Stunning were Amrapali Group of Companies and between themselves they were holding more than 65 per cent of the share capital in the Company. The details in the form of a chart given in the additional affidavit were: No. 1 M/s Vidhya Shree Buildcon Pvt. Ltd. – Directors: Pankaj Jain, Vaibhav Jain, Naresh Chand Jain – Lead member – 26 % shareholding, held to be Amrapali Group. No. 2 Anjali Buildcon Pvt. Ltd. – Directors: Mukesh Kumar Roy, Sanjeev Kumar – 20 % shareholding, held to be front of Amrapali. No. 3 Stunning Constructions Pvt. Ltd. – Directors: Amit Vikram, Amresh Kumar, Suvash Chandra Kumar – 11 % (Amrapali) according to FA Report and the Main Judgment dated 23.07.2019 – held to be Amrapali Group. No. 4 Nishant Creations Pvt. Ltd. – Directors: Sushma Bajaj, Kulbhushan Rai Bajaj, Nishant Bajaj – 19 % also Directors of Amrapali Group. No. 5 Agarwal Associates (Promoters Ltd.) – Directors: Harkishan Kumar, Aaditya Agarwal – 5 % (taken over by Stunning), Ashish Agarwal. No. 6 Elegant Infraccion Pvt. Ltd. – Directors: Uma Agarwal, Abhay Kumar, Amit Kumar Sharma – 19 % sub‑lessee of Amrapali Centurian., The affidavit also gave the status of construction with regard to each of the three phases as under: Out of the total 3,256 units to be provided by the Developer, 632 units are offered by the Developer towards 19.75 % of Amrapali group. However, out of the proposed 632 units, the developer is handing over 181 units from Phase II which is 70 % complete and 415 units are being offered from Phase III which is a camouflage as only 40 % of the same is completed according to the developer. It is submitted that Phase III is not even anywhere near 40 % completion and is actually deserted with the construction activity of both Phase II and III at a standstill and the Developer has siphoned off all the monies collected by the home buyers and washed off his hands from the construction activity. The builder has totally failed and buyers have totally lost faith; the builder in the past ten years was able to complete only approximately 30 % of works in the total project., IA No. 114865 of 2020 (Z‑318) was filed on 15.11.2020 by fourteen applicants. This application referred to the communication dated 18.01.2020 addressed by the Company to all the flat buyers of Amrapali La Residentia Project. The text of said communication was as follows: “As you are aware of the ongoing Supreme Court case on Amrapali, the Honourable Supreme Court of India has imposed certain restrictions on us (La Residentia Developers Private Limited). As per the injunction we have to surrender 632 flats to the Honourable Supreme Court, we are also not allowed to sell any new inventory, which has led to an extreme crunch in operational funds required to complete your flat. As a result of this ongoing case we are unable to raise funds from the market either due to lack of trustworthiness.” The applicants then submitted: That the above statement has put the applicants in a serious quandary and they are faced with a peculiar problem inasmuch as to say that vide its judgment dated 23.07.2019 in Bikram Chatterjee and Ors. vs. Union of India and Ors. (Writ Petition No. 940 of 2017), the Honourable Supreme Court of India has arrived at a finding that it is Amrapali that has ownership of 19.75 % of the share in the properties being built and developed by La Residentia, numbering a total of 632 flats. However, there is a great deal of uncertainty and a complete lack of clarity with respect to the remaining 80.25 % of the flats/apartments that are part of Amrapali La Residentia and a responsibility of the respondent builder. The respondent builder is conveniently trying to hide behind the garb of the Honourable Supreme Court’s judgment to wash its hands off the future of 80 % of the home buyers who have also spent all their life savings and taken huge loans to invest in the apartments that were proposed to be built. Such homeowners as the applicants are totally stranded and are faced with complete uncertainty with regard to the future of their homes that were being developed by the respondent builder., The applicants fear that as bona‑fide purchasers/homebuyers whose property does not fall in the 19.75 % share in the entire La Residentia Project, they are likely to be short‑shifted as the burden upon the National Buildings Construction Corporation (NBCC) is colossal and it is likely that projects that have a 100 % involvement of Amrapali are likely to get the first preference unless proper orders are passed by the Honourable Supreme Court of India. The promoter’s role, scope, responsibility, liability etc. need to be fixed as they say that 632 flats are dispersed in all three phases of the project and unless proper directions are issued by the Honourable Supreme Court of India the home buyers are put in severe inconvenience without a roof over their heads. It is further submitted that the 632 units in La Residentia surrendered to the Amrapali group are incomplete and scattered in various towers, on different floors many of which are not even completed. The situation is used by the builder to stall the progress of the construction citing the injunction orders of the Honourable Supreme Court of India., IA No. 6397 of 2021 was filed on 13.01.2021 by Religare Finvest Ltd. stating that the applicant had extended financial accommodation to the Company and that the Company had mortgaged the project land and 939 flats/units with the applicant and therefore the interest of the applicant should be protected., Reference was made to the order dated 28.07.2020 passed by the Honourable Supreme Court of India, and the observations concerning Vidhya Shree Buildcon Pvt. Ltd. and those dealing with Heartbeat City, another project of the second category, are extracted here for ready reference: 1. We have heard the forensic auditor as well as the learned counsel appearing for the parties at length. The first question arises whether the Heartbeat City Projects are of Amrapali Group, and the second question is as to the agreement entered into by M/s Mahagun Real Estate Private Limited with M/s Baseline Infradevelopers Private Limited. 2. It is apparent that Heartbeat City Projects were launched in the name of the ‘Amrapali Heartbeat project’ in 2011‑2012 with Mr M. S. Dhoni, the Brand Ambassador. The home buyers’ agreement was entered into in the style of Amrapali Group with the assurance that flats will be delivered within 36 months. Most of the buyers paid their dues on time, but the construction was delayed. 3. Heartbeat City Projects comprise Heartbeat City 1 (HBC 1) and Heartbeat City 2 (HBC 2) and Hanging Gardens in Noida. The land for the respective projects was allotted in the name of Three Platinum Softech Private Limited, Pebbles Prolease Private Limited, and Baseline Infradevelopers Private Limited. The projects were launched and advertised in the name of the Amrapali Group. Phase 3 project was started in 2011‑2012 in the name of Hanging Garden; however, later the Hanging Garden project was scrapped, and the home buyers were refunded the amount., HBC 1 comprises 759 units, and HBC 2 consists of 1,217 units plus shops, but construction could not progress for one reason or another. In the audit report, it has been found that the land in Baseline was part and parcel of HBC 1 and HBC 2 projects and, in general, under the control of the directors of HBC 1 and HBC 2 and was purchased from the funds of the customers of HBC 1 and HBC 2 and is an integral part of HBC 1 and HBC 2; therefore, customers of HBC 1 and HBC 2 have the first and full right over the land rights and the proceeds to be received from the sale of the land can be utilised for the construction of HBC 1 and HBC 2 projects. HBC 1 has nine towers and 785 units, of which 675 units were sold and Rs. 147 crores are recoverable from sold units. HBC 2 has twelve towers and 1,282 units, out of which 936 units were sold and Rs. 301 crores are recoverable from sold units. The cost to complete HBC 1 is approximately Rs. 167.19 crores and HBC 2 is Rs. 375.64 crores, which is recoverable from unsold units., Mr. Amit Wadhwa, Director of Amrapali Homes, has 25 % shareholding. Mr. Akhil Kumar Surekha, who is the Director of Bihariji Ispat Udyog Ltd. and JST Engineering Services Limited, has 13 % and 12 % shareholding respectively, total 25 %. Mr. Vaibhav Jain and Mr. Pankaj Jain, Directors, are holding 10 % and 15 %, total 25 % of the shareholding, whereas Cozi Habitat Builders Private Limited, Maa Sharda Holding Private Limited, through its Director Mr. Sankalp Shukla, is also holding 25 % shares. Similarly, in HBC Phase II, the shareholding pattern is similar with 25 % held by Mr. Amit Wadhwa, Mr. Akhil Kumar Surekha, Mr. Vaibhav Jain, Mr. Pankaj Jain and Mr. Sankalp Shukla. In Baseline Infradevelopers Pvt. Ltd., shareholding of Mr. Amresh Kumar is 8.25 %, Bihariji Ispat Udyog Limited through Mr. Akhil Kumar Surekha is 8.25 %, B2C Realtors Pvt. Ltd. through Mr. Vaibhav Jain and Ms. Swati Jain is 8.25 %, Cozy Habitat Builders Pvt. Ltd. through Mr. Sankalp Shukla is 8.25 %. Mr. Nishant Choubey and Mr. Santosh Choubey are holding 34 % and 33 % respectively. They did not provide documents to the forensic auditors; however, they possess 67 % shares., The following findings were recorded concerning Heartbeat City in the judgment and order dated 35: Heartbeat City Developers Private Limited – the project is in the name of three companies namely Pebbles Prolease Private Limited, Three Platinum Softech Private Limited and Baseline Infradevelopers Private Limited. The project is an Amrapali Group’s project which was carved out from Amrapali Group of companies while the case was pending before the Honourable Supreme Court of India. Funds were invested in the project from Amrapali Group through Mr. Amit Wadhwa, who was a partner with 25 % each in Pebbles Prolease Private Limited and Three Platinum Softech Private Limited. Amrapali Group launched and advertised the project as an Amrapali Group project and the project was named Amrapali Heartbeat City Developers Private Limited in the agreements. The corporate office had the same address as Amrapali Corporate Tower in Sector 62, Noida. The purpose of carving out the project from Amrapali is not known. It is informed that Mr. Vaibhav Jain and Mr. Sankalp Shukla are the key managerial persons. In the absence of accounting records we could not proceed further on the issue. Mr. Vaibhav Jain admittedly was the architect of Amrapali Group who was holding 25 % shares. Mr. Akhil Kumar Surekha was also holding 25 % shares in each of the projects., With respect to Vidhya Shree Buildcon Private Limited, Rs. 4,00,00,000/‑ (Rupees Four Crores) is the debit balance in the books of accounts of the Amrapali Group. It is apparent that a sum of Rs. 242.38 crores was handed over to Mr. Pankaj Jain (current Director of Amrapali Group and brother of Mr. Vaibhav Jain), the Director of Vidhya Shree Buildcon Pvt. Ltd. The project was launched in the name of Amrapali Heartbeat City, and the agreement was entered into with the Amrapali Group by the home buyers. Cheques were issued in the name of Amrapali Heartbeat City. Letterheads of Amrapali were used for the Builder‑Buyer Agreement, and the project was mentioned as Amrapali Heartbeat City. It is true to suggest that the project was an independent project. We are unable to accept the aforesaid findings recorded in the report of the forensic auditors. Probably, it was due to the fact that certain accounts were not made available; however, in view of the findings recorded earlier with respect to relationship and inter‑se transactions of the groups and parties, there is no iota of doubt that HBC 1 and HBC 2 are to be treated as projects of Amrapali Group only and not independent projects. As per the finding, the land was agreed to be sold by Baseline as per the findings recorded in the forensic auditors’ report itself. The same is out of the money generated by HBC 1 and HBC 2 projects and Baseline Infradevelopers Pvt. Ltd. is part and parcel of HBC 1 and HBC 2 projects and the buyers have the rights over the land and on the proceeds to be received from the sale of the land. We accept the said finding recorded in the forensic auditors’ report., We heard Mr. Gopal Sankaranarayanan, learned Senior Advocate for the Association, Mr. M. L. Lahoty and Mr. Manoj V. George, learned Advocates for the applicants in the first set of applications; Mr. V. Giri, learned Senior Advocate for the Company in the second set of applications; and Mr. Janendra Kumar Chumbak, learned Advocate for the applicant in the third set., The submissions advanced by Mr. Gopal Sankaranarayanan, learned Senior Advocate were: a) The shareholding pattern in the tabular chart in IA No. 109882 of 2020 (Z‑309) disclosed that the Company was one of the Amrapali Group of Companies. b) Consequently, the entire project land would be part of the assets of Amrapali Group of Companies rather than restricting the share of Amrapali Group of Companies to the extent of 19.75 %. c) If the benefit as granted in the order dated 23.07.2019 was extended, all the flat buyers would stand relieved substantially as the dues of GNIDA would stand reduced to a considerable extent. d) The entire project ought to be directly under the control of the Court Receiver and the construction be undertaken through the National Buildings Construction Corporation (NBCC) as was directed to be done in the other projects of the Amrapali Companies. Mr. M. L. Lahoty, learned Advocate appearing for the applicants, supported the submissions advanced by Mr. Gopal Sankaranarayanan and invited attention to the reports of the forensic auditors and to the order dated 28.07.2020 passed by the Honourable Supreme Court of India in the matter concerning Heartbeat City. It was submitted that the instant project and Heartbeat City Project stood on the same parameters and therefore similar benefits should be extended to the instant project. Mr. Manoj V. George, learned Advocate appearing for the applicants in IA No. 114865 of 2020 (Z‑318), highlighted the predicament faced by the National Buildings Construction Corporation (India) Limited, formerly National Buildings Construction Corporation Limited, applicants and particularly the stand taken by the Company in its communication dated 18.01.2020., Mr. V. Giri, learned Senior Advocate for the Company submitted: a) Stunning was merely a shareholder in the Company and that by itself would not make the Company a part of the Amrapali Group of Companies. b) Beyond the amounts put in towards share capital, nothing was invested by the Amrapali Group of Companies; nor any part of money belonging to the flat buyers of Amrapali Group of Companies was used or utilised in the instant project. c) Though the Company was not a part of Amrapali Group of Companies, the benefit in terms of order dated 23.07.2019 ought however be extended as indicated in IA No. 120307 of 2020 (I‑155) and IA No. 123299 of 2020 (I‑158)., In the written note filed on behalf of the Company, the following assertions were made with respect to the construction status and the escalation in costs if the project was to be handed over to the NBCC as prayed for by the Association and the applicants: a) Unit‑wise construction status of the project: Total flats in project 3,256; total flats sold 2,642; flats constructed 1,484; flats delivered 1,143; Occupancy Certificates received 872; Occupancy Certificates applied for 612; Sub‑Lease Deeds registered 658; unsold inventory (comprising 614 unsold flats and 18 cancelled allotments) 632. It is to be noted that a sum of approximately Rs. 145 crores of the current homebuyers is stuck in the unsold inventory. b) Phase‑wise status of project: Phase I (18 towers, 1,408 flats) – 1,127 flats/units complete and delivered to homebuyers, balance inventory of 313 flats/units at final stage of finishing work. Phase II (11 towers, 996 flats) – all flats in Phase II inventory are at the initial stage of finishing work and delivery of units has started; handing over of units in Phase II has also started, including Tower 22 where the unit of Ms. Savita Tyagi is situated, who is also an applicant. Phase III (10 towers, about 852 flats) – structural work for 704 units out of 852 units in ten towers has been completed and slab work for about 37 stories/floors in these ten towers is yet to be cast., Third‑party submission: Certain homebuyers have been seeking directions from the Honourable Supreme Court of India to get the project handed over to a third party or NBCC for completion of construction. However, for the reasons stated herein, the same ought not to be done: a) The per square foot construction cost that La Residentia has incurred to date works out to be Rs. 1,657/‑, which includes interest on money infused and administrative expenses; only land cost is separate. b) The per square foot costing that NBCC or any third‑party contractor may apply would not be less than Rs. 2,550/‑ per sq. ft. along with 8 % consultation charges of NBCC and interest of 12 % on capital infused. c) The sale price of the unsold units has been taken at Rs. 2,852 per sq. ft. The amount thus available from sold and unsold inventory plus a mount recoverable would be Rs. 354 crores. d) Introduction of a third party at this stage will not only increase the timeline of the project but also escalate the cost of completion of the project by at least … The effect if the construction is completed by La Residentia Developers would be: the construction of the project would be completed in a fixed period of time; the dues of GNIDA will be paid; the bank dues shall be paid; pending dues of suppliers and contractors would be cleared; there would be money available in the kitty. In case construction is carried out by NBCC, the effect would be: all the incoming monies, after deduction of interest and consultation charges and other charges as may be applicable in favour of NBCC, would be put in Amrapali’s kitty; additional cost of land dues to be paid to GNIDA; no surplus funds left to pay out the various dues; no payments to GNIDA; no payments to the banks., Mr. Janendra Kumar Chumbak, learned Advocate appearing for Religare Finvest Ltd., reiterated the submissions made in IA No. 6397 of 2021., The first two sets of applications principally prayed that the orders dated 23.07.2019 and 14.10.2019 be recalled or revisited. The Association and the applicants supporting the Association submitted that the Company be declared to be part of the Amrapali Group of Companies and consequently the entire project be developed by the NBCC under the control and supervision of the Court Receiver. On the other hand, according to the Company, it was never part of the Amrapali Group of Companies and at best one of the companies of the Amrapali Group could be said to be a shareholder to the extent of 19.75 % and that beyond such share capital no other amount was invested by the Amrapali Group of Companies. Thus, according to the Company it could not be directed to surrender 19.75 % of the project land or 632 flats as was directed in the order dated 23.07.2019. However, both sets of applications desired that the same benefits as given to all the flat buyers from Amrapali Group of Companies be extended and the project be relieved of the requirement of paying the dues of GNIDA like other Amrapali projects., When the order dated 23.07.2019 was passed by the Honourable Supreme Court of India, IA No. 168186 of 2018 (Z‑68) was pending on the file of this Court. Similarly, IA No. 153341 of 2019 (Z‑233) was filed on 01.10.2019, i.e., before the subsequent order dated 14.10.2019 was passed by this Court. The prayer made in the latter application that the order dated 23.07.2019 be recalled was not favourably considered on 14.10.2019. On the contrary, after noting the submission made on its behalf, the Company was directed to file an appropriate affidavit indicating the expenditure required for constructing 632 flats so that appropriate adjustments could be effected. In view of these developments, it would not be possible to entertain the prayer made in the concerned interim applications either seeking recall of the orders dated 23.07.2019 and 14.10.2019 or revisit of the issue whether the Company ought to be declared as part of the Amrapali Group of Companies, more particularly because of the developments that have taken place with respect to the instant project., As indicated in the tabular charts which were part of the written note filed on behalf of the Company, out of 3,256 flats to be constructed, 1,484 flats have been fully constructed and possession of 1,143 flats has already been given to the concerned flat buyers. As per the charts, the work of construction with respect to phases one and two is at an advanced stage. Further, according to the figures indicated therein, the per square foot cost of construction incurred by the Company has been to the tune of Rs. 1,657 per sq. ft., whereas the per square foot cost of construction by NBCC, if at this juncture the project is handed over to NBCC, would be in the region of Rs. 2,550 per sq. ft. along with 8 % consultation charges of NBCC. Thus, if the instant project is now handed over to NBCC, it would result in escalation in costs to the detriment of the flat buyers. The figures also show that as against the original liability of Rs. 155.10 crores, the Company has already discharged the liability towards the dues of GNIDA to the extent of Rs. 117.10 crores., It is true that the Heartbeat City Project, coming from the second category, was dealt with by the Honourable Supreme Court of India in its order dated 28.07.2020 and was directed to be taken over by NBCC like other Amrapali projects. However, the distinguishing feature as noticed in paragraph 4 of that order was that there was absolutely no progress with respect to said project. In contradistinction, the instant project has progressed to a considerable extent. At least 1,143 flat buyers have received possession while the work of construction with respect to phases one and two is at an advanced level. Further, the interest of the Amrapali Group of Companies and consequently that of the flat buyers who had invested money in other Amrapali projects already stands quantified at 19.75 % vide orders dated 23.07.2019 and 14.10.2019. Therefore, even if there could be some similarity with regard to the status of the instant project as against Heartbeat City Project, considering the factual situation on record, that by itself would not afford sufficient reason to entertain the submissions on behalf of the Association and the applicants supporting the Association.
id_630	2	Even if the entire project cannot be made over to the National Buildings Construction Corporation for the reasons stated above, another aspect of the matter that may require consideration is whether the component representing 632 flats could still be made over to the National Buildings Construction Corporation. However, that course would also not be feasible as those 632 unsold flats are spread over in various towers; some of them are in Phase one while the others are in Phases two and three., An important aspect of the matter is that unlike all the other projects of the Amrapali Group which were made over to the National Buildings Construction Corporation, the development with respect to the instant project has always been an ongoing process. In all the other projects of the Amrapali Group, either there was no development right from the inception or even if some development had been initiated, the same was completely at a standstill when the matters were taken up for consideration by the Supreme Court of India., Considering all these features of the matter, in our considered view, it would not be just and proper to hand over the development at this stage to the National Buildings Construction Corporation as prayed for by the Association and the applicants supporting the Association. We, therefore, do not deem it appropriate to recall the orders dated 23.07.2019 and 14.10.2019 or to revisit the issue whether the Company could be declared to be part of the Amrapali Group of Companies. Similarly, we also do not deem it appropriate to extend the benefits as prayed for either by the Association or by the Company. We, therefore, reject the first two sets of applications. No separate orders are called for in the third set., However, certain directions must be passed to secure the amounts receivable by the Amrapali Group of Companies through the instant project., It is therefore directed: The Company shall be entitled to continue with the construction and development of the instant project. Six hundred thirty‑two flats which were the subject matter of orders dated 23.07.2019 and 14.10.2019 shall be allowed to be sold by the Company to interested persons or parties at a fair price or value, provided that all the concerned transactions including the execution of appropriate documents or deeds are countersigned by the Court Receiver or his nominee; the price or value at which said flats are to be sold is certified by the Court Receiver to be fair and appropriate; all the amounts received by way of such transactions of sale are credited to a separate account completely under the control of the Receiver and/or his nominee; the cost of construction with respect to those 632 flats, upon due certification by the Chartered Accountants of the Company and to the satisfaction of the Receiver, shall be made over to the Company; and it shall be open to the Receiver to give such advances towards the construction of these 632 flats from and out of the amounts deposited in the account hereinabove, depending upon the stage and progress of construction. The injunction with respect to said 632 flats, as directed in the orders dated 23.07.2019 and 14.10.2019, shall stand modified to the extent indicated hereinabove. The difference between the amounts received from the concerned flat buyers for purchase of said 632 flats and the expenditure incurred on cost of construction shall finally be credited to the general account maintained for the benefit of the flat buyers of the Amrapali Group of Companies., Thus, all the applications under consideration stand disposed of in aforesaid terms but without any order as to costs. [Uday Umesh Lalit]
id_631	0	Mahesh Sitaram Raut, aged 33 years, occupation Researcher and Teacher, resident of Lakahpur, Post: Morshi, Taluka: Brahmapuri, District: Chandrapur, presently lodged in Taloja Central Prison, Raigad, is the appellant. The National Investigation Agency, through its Superintendent having his office at Cumballa Hills, Peddar Road, Mumbai 400 026, is Respondent No.1. The State of Maharashtra, Office of the Learned Public Prosecutor, Bombay High Court, is Respondent No.2. Mr. Mihir Desai, Senior Advocate, appears for the appellant. Mr. Devang Vyas, Additional Solicitor General of India, appears for Respondent No.1 – National Investigation Agency. Ms. Pritha Paul, Ms. Devyani Kulkarni and Mr. Swaroop Nair appear for Respondent No.1 – NIA. Mr. Vijay Hiremath appears for the appellant. Mr. Sandesh Patil, Mr. Chintan Shah, Mrs. Anusha Amin and Mr. Shrikant Sonkawade appear for Respondent No.1 – NIA., The appellant, original accused No.5, has impugned the order dated 23 November 2021 passed in Exhibit‑507 in Special Case No. 414 of 2020 together with Special Case No. 871 of 2020 by the learned Special Judge, National Investigation Agency, City Civil and Sessions Court, Greater Mumbai, rejecting his application for bail under Section 439 of the Criminal Procedure Code and preferring the present appeal under Section 21(4) of the National Investigation Agency Act, 2008. The matter was heard by Mr. Mihir Desai, learned senior counsel for the appellant, Mr. Devang Vyas, learned Additional Solicitor General of India for Respondent No.1 – NIA, and Mrs. Pai, learned Public Prosecutor with Mrs. S. D. Shinde, learned Additional Public Prosecutor for Respondent No.2 – State. The entire record produced before the court was perused., Appellant is arraigned as accused No.5 in FIR No. RC‑01/2020/NIA/MUM registered by the National Investigation Agency under Sections 120‑B, 115, 121, 121‑A, 124‑A, 153, 201, 505(1)(b) and Section 34 of the Indian Penal Code, and under Sections 13, 16, 17, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967. On 31 December 2017, the Bhima Koregaon Shaurya Din Prerana Abhiyan organised an event called Elgaar Parishad in Shaniwarwada, Pune to celebrate the 200th anniversary of the historic battle of Bhima Koregaon on 1 January 2018. The program was held from 2:30 p.m. to 10:00 p.m. On 1 January 2018, mobs bearing saffron flags attacked persons travelling to and returning from Shaniwarwada, resulting in large‑scale violence and the death of one youth. A zero FIR was registered on 2 January 2018 at Pimpri Chinchwad Police Station by eyewitness Ms. Anita Salve under various provisions of the Indian Penal Code, the Arms Act, 1959, the Maharashtra Police Act, 1951 and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, alleging involvement of Sambhaji Bhide, Milind Ekbote and their followers. On 8 January 2018, the first informant Mr. Tushar Damgude registered FIR No. 4 of 2018 under Sections 153‑A, 505(1)(b), 117 read with Section 34 of the Indian Penal Code, stating that the Elgaar Parishad programme was attended by him at around 2:00 p.m. and that the speakers gave provocative speeches that disrupted communal harmony, and that the banned terrorist organisation Communist Party of India (Maoist) had an organisational role in arranging the programme. Subsequent searches of the residences of Rona Wilson, Surendra Gadling, Sudhir Dhawale, Harshali Potdar, Sagar Gorkhe, Deepak Dhengale, Ramesh Gaichor and Jyoti Jagtap yielded electronic and digital material that, after forensic analysis, confirmed the involvement of the accused including the appellant. The investigating officer invoked provisions of Sections 13, 16, 17, 18, 18B, 20, 38, 39 and 40 of the Unlawful Activities (Prevention) Act. Arrests of Surendra Gadling, Rona Wilson, Shoma Sen, the appellant and Sudhir Dhawale were made on 6 June 2018, and further arrests of Varavara Rao, Arun Ferreira, Sudha Bharadwaj, Vernon Gonsalves, Stan Swamy and others followed in August 2018. Chargesheets were filed on 15 November 2018 and a supplementary chargesheet on 21 February 2019, naming the appellant and other accused under the aforementioned provisions., Mr. Mihir Desai submitted that the appellant is a highly educated person who holds an M.A. in Social Work from the Tata Institute of Social Sciences, Mumbai, and an M.A. in Political Science from Rashtra Sant Tukdoji Maharaj University, Nagpur. He received a special fellowship from TISS to conduct research on conflict and development concerns in Central India and was later selected for the Prime Minister Rural Development Fellowship Programme, during which he coordinated with the District Collector of Gadchiroli and wrote articles on indigenous peoples’ rights. He also attended an International Youth Development and Education Programme in Brazil in July‑August 2017. Mr. Desai argued that the allegations against the appellant are threefold: membership of the banned organisation, recruitment of persons for the organisation, and handling of funds of the organisation, and that there is no material on record to substantiate these allegations. He pointed out that the documents relied upon by Respondent No.1 – NIA (pages 117/350 and 118/351) were recovered from the computers of co‑accused Rona Wilson and Surendra Gadling, and that the statement of witness Ms. Sakhrani does not indict the appellant. He relied on the decisions of Vernon v. State of Maharashtra & Anr., reported in 2023 SCC OnLine SC 885, and Dr. Anand Teltumbde v. National Investigation Agency & Anr., reported in 2022 SCC OnLine Bom 5174. Mr. Devang Vyas, learned Additional Solicitor General of India, contended that the material relied upon by the NIA clearly indicates that the appellant is an active member of the Communist Party of India (Maoist) and that he received funds from co‑accused for party work. He argued that the seized hard‑disk of accused Nirmala Kumari @ Narmadakka contained images and videos of the appellant delivering a lecture in 2017 and letters of the Visthapan Virodhi Jan Vikas Andolan (VVJVA), establishing the appellant’s links with the CPI (M). He further asserted that a communication seized from the computer of co‑accused Rona Wilson (page 117/350) shows that the appellant was handed Rs. Five Lakhs for onward transmission to Surendra Gadling and Sudhir Dhawale, and that the appellant was instrumental in recruitment and fund transfer. Mr. Vyas relied on the decisions of National Investigation Agency v. Zahoor Ahmad Shah Watali (2019) 5 SCC 1, Hany Babu v. National Investigation Agency, Criminal Appeal No. 351 of 2022, Jyoti Jagtap v. National Investigation Agency & Anr., Criminal Appeal No. 289 of 2022, and Dr. Anand Teltumbde v. National Investigation Agency & Anr., Criminal Appeal No. 676 of 2021, arguing that the parameters applied in those cases should be applied here and that a prima facie case is made out against the appellant., The law relating to the interpretation and application of Section 45‑D(5) of the Unlawful Activities (Prevention) Act is well enunciated by the Supreme Court. In National Investigation Agency v. Zahoor Ahmad Shah Watali, the Court held that at the bail stage the court need not dissect the evidence but must record a finding based on broad probabilities and consider the totality of material gathered by the investigating agency. In Thwaha Fasal v. Union of India, (2011) 4 SCC 240, the Court held that the court must consider whether there are reasonable grounds for believing that the accusation is prima facie true, without conducting a mini‑trial. In Vernon v. State of Maharashtra & Ors., 2023 SCC OnLine SC 885, the Court observed that some element of evidence analysis becomes inevitable under the restrictive provisions of Section 43D of the 1967 Act. The chargesheet against the appellant categorises the allegations under membership of the banned organisation, recruitment of persons and handling of funds. The material relied upon by the NIA consists of statements of witnesses and communications seized from the computers of co‑accused, which are hearsay and have weak probative value. No evidence has been produced of any covert or overt terrorist act committed by the appellant, nor of any persons recruited by him. Accordingly, the court finds that there are no reasonable grounds for believing that the accusations under Sections 16, 17, 18, 20 and 39 of the Unlawful Activities (Prevention) Act are prima facie true. While the appellant may be a member of the Communist Party of India (Maoist), which attracts provisions of Sections 13 and 38 of the Unlawful Activities (Prevention) Act, the maximum punishments under these sections are seven years and ten years respectively, and the Supreme Court has held that the yardstick for bail in such cases is lighter. Considering the appellant’s pre‑trial incarceration of more than five years and three months, the absence of criminal antecedents, and the lack of a prima facie case for the more serious offences, the court is of the opinion that a case for grant of bail has been made out., The impugned order dated 23 November 2021 passed in Exhibit‑507 in Special Case No. 414 of 2020 together with Special Case No. 871 of 2020 is quashed and set aside. The appellant is released on bail in Special Case No. 414 together with Special Case No. 871 of 2020 arising out of RC‑01/2020/NIA/MUM under Sections 120‑B, 115, 121, 121‑A, 124‑A, 153, 201, 505(1)(B) read with Section 34 of the Indian Penal Code and Sections 13, 16, 17, 18, 18B, 20, 38 and 39 of the Unlawful Activities (Prevention) Act upon execution of a personal bond of Rs.1,00,000 with one or more solvent local sureties in the like amount. The appellant is permitted to furnish cash bail for a period of eight weeks from today and, during that period, shall comply with the condition of furnishing solvent local sureties. The appellant shall not tamper with the evidence of prosecution nor influence prosecution witnesses. Before actual release, the appellant shall furnish his mobile and landline numbers and permanent residential address to the Investigating Officer and the learned Special Court. The appellant shall attend the concerned police station where he intends to reside once in a fortnight for one year and thereafter on the first Monday of each month between 10:00 a.m. and 12:00 noon until the trial concludes. The appellant shall not leave the jurisdiction of this Court without prior permission from the learned Special Judge, National Investigation Agency, Greater Mumbai / Trial Court. The appellant shall deposit his passport with the designated Special Court before actual release. The appeal is allowed in the aforesaid terms. After pronouncement of the judgment, Mr. Patil, learned Special Public Prosecutor appearing for the NIA, requested a stay of the operation and implementation of the order to enable the NIA to challenge it before the Supreme Court. The stay is granted for a period of one week from today.
id_632	0	Date of decision: 05 April 2022. Through Mr. Badar Mahmood, Advocate, versus Ms. Neelam Sharma, Assistant Public Prosecutor for the State with SI Ajay Singh, Police Station Paharganj. Complainant – in person. This petition under Sections 397 and 401 of the Criminal Procedure Code read with Section 482 of the Criminal Procedure Code has been filed for setting aside the order dated 08.03.2021, passed by the learned Additional Sessions Judge/Special Fast Track Court (Central), Tis Hazari Courts, Delhi, in Case No. 436/2020 arising out of FIR No. 319/2019 dated 10.11.2019 registered at Police Station Paharganj for offences under Section 376(2)(n) of the Indian Penal Code, framing charges against the petitioner for offences under the same provision., Facts, in brief, leading up to the instant petition are as follows: The petitioner extended a false promise of marriage to the prosecutrix, on the basis of which he sustained a physical relationship with her. The prosecutrix and the petitioner were engaged, and the wedding was postponed due to some issues in the family of the prosecutrix. Subsequently, arguments arose about the date of marriage as well as the financial condition of the prosecutrix. The prosecutrix requested the petitioner to marry her by way of court marriage or in an Arya Samaj temple, and this request was rejected by the petitioner. The petitioner and his family quibbled with the prosecutrix regarding her way of living, lifestyle and other trivial matters in order to put an end to the marriage. The prosecutrix alleged that these issues were raised because she was not financially well‑off and the petitioner wanted to marry a girl whose father could invest money in his marriage. On the basis of this complaint, the FIR was registered under Section 376(2)(n) of the Indian Penal Code against the petitioner. The court granted anticipatory bail to the petitioner on 28.01.2020. The chargesheet was filed on 19.08.2020, and on 08.03.2021 the learned trial court framed charges against the petitioner under Section 376(2)(n) of the Indian Penal Code. Aggrieved by this, the petitioner approached this court by way of the instant revision petition., Mr. Badar Mahmood, learned counsel for the petitioner, submits that the petitioner and the prosecutrix were involved in a serious relationship and that physical relations between the two had never taken place. He states that despite incompatibility between them, the petitioner was in love with the prosecutrix and intended to settle down with her. He further states that a roka ceremony had taken place between the petitioner and the prosecutrix, and that the instant matter is merely a case of a relationship that has ended on bad terms., The learned counsel for the petitioner submits that the prosecutrix constantly fought with the petitioner and taunted him about his profession as well as his financial capacity. He states that the prosecutrix insisted on the wedding ceremony being held at a venue which was too expensive for the petitioner to finance, and because of this the marriage was put off, leading to the parents of the petitioner being forced to face an embarrassing position., Mr. Mahmood brings to the attention of this court that the prosecutrix and her family threatened the petitioner and his family that if they did not get the petitioner married to the prosecutrix immediately, they would file false cases of rape and suicide against them. As a result, the petitioner and his father immediately filed a complaint dated 11.11.2019 with the SHO, North Rohini, Delhi. They later became aware that FIR No. 319/2019 dated 10.11.2019 was registered at Police Station Paharganj., With regard to the impugned order dated 08.03.2021, the learned counsel for the petitioner submits that the learned trial court failed to apply its judicial mind to the facts of the case and mechanically framed charges against the petitioner under Section 376(2)(n) of the Indian Penal Code. The disclosure statement of the prosecutrix under Section 164 of the Criminal Procedure Code categorically notes that it took the petitioner three months to convince the parents of the prosecutrix to allow her to get married, indicating a false pretext of marriage. He states that the allegations against the petitioner are prima facie fabricated and that the learned trial court failed to take the same into account while discerning that there was sufficient ground to proceed against the petitioner. He therefore prays for the impugned order dated 08.03.2021 to be set aside., Per contra, Ms. Neelam Sharma, learned Assistant Public Prosecutor for the State, submits that the investigation revealed that a statement of the prosecutrix under Section 164 of the Criminal Procedure Code had been recorded and the allegations in the FIR were corroborated. She further submits that raids were repeatedly carried out at the residence of the petitioner and he was never found at the available address. She states that the petitioner did not join the investigation initially, and that it was only after this court granted anticipatory bail to the petitioner on 28.01.2020 that he joined the investigation. She opposes the instant application on the ground that the learned trial court has sufficiently satisfied itself that a prima facie case is made out against the petitioner., The prosecutrix, in person, has also addressed this court and reiterated the allegations delineated in FIR No. 319/2019, opposing the instant revision petition on the ground that the facts clearly make out the charges that have been framed against the petitioner., Heard Mr. Badar Mahmood, learned counsel for the petitioner, Ms. Neelam Sharma, learned Assistant Public Prosecutor for the State, and the prosecutrix in person, and perused the material on record., Before delving into the correctness of the impugned order dated 08.03.2021 whereby the learned trial court framed charges under Section 376(2)(n) of the Indian Penal Code against the petitioner, this court finds it necessary to reiterate the law pertaining to the framing of charges and the scope of this court to interfere under Sections 397 and 401 of the Criminal Procedure Code. In Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4, the Supreme Court laid down the principles to be followed while dealing with discharge under Section 227 of the Criminal Procedure Code or framing of charges under Section 228 of the Criminal Procedure Code., Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) The judge while considering the question of framing charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether a prima facie case against the accused has been made out. (2) Where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case depends upon the facts of each case; if two views are equally possible and the judge is satisfied that the evidence produces some suspicion but not grave suspicion, he will be within his right to discharge the accused. (4) While exercising jurisdiction under Section 227, the judge, who under the present Code is a senior and experienced court, cannot act merely as a post office or a mouthpiece of the prosecution, but must consider the broad probabilities of the case, the total effect of the evidence and documents, and any basic infirmities appearing in the case. This does not mean that the judge should make a roving enquiry into the pros and cons of the matter as if conducting a trial., The Supreme Court has time and again held that at the stage of framing of charges, the court possesses the power to sift and weigh the evidence for the limited purpose of ascertaining whether a prima facie case has been made out against the accused. The learned trial court must exercise its judicial mind to the facts of the case before arriving at the conclusion that there is sufficient ground for proceeding against the accused. This exercise must be undertaken so as to ensure that an individual does not have to be put through the rigours of the criminal judicial system for no fault of their own., Similarly, in P. Vijayan v. State of Kerala, (2010) 2 SCC 398, the Supreme Court enunciated that a judge is not a mere post office that frames the charge at the behest of the prosecution, but is compelled to apply his mind to the facts of the case. The relevant portion of the judgment reads: Section 227 of the Code of Criminal Procedure, 1973 provides that if, after consideration of the record and hearing the submissions of the accused and the prosecution, the judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons. If two views are possible and one gives rise to suspicion only, as distinguished from grave suspicion, the trial judge will be empowered to discharge the accused. The words ‘not sufficient ground for proceeding against the accused’ clearly show that the judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution., In the instant case, it has been alleged that the petitioner has committed an offence under Section 376(2)(n) of the Indian Penal Code, which provides that whoever commits rape repeatedly on the same woman shall be punished with rigorous imprisonment for a term not less than ten years, which may extend to imprisonment for life, and shall also be liable to fine. The allegation is that under the garb of marriage, the petitioner repeatedly raped the prosecutrix., At this juncture, it is pertinent to examine the difference between a false promise of marriage and a breach of promise to marry. In the latter, sexual relations are initiated on the premise that the two individuals will marry at a later point of time. In the former, sexual relations take place without any intention of marrying at all and the consent obtained is vitiated by a misconception of fact. In Pramod Suryabhan Pawar v. State of Maharashtra and Anr., (2019) 9 SCC 608, the Supreme Court observed that where the promise to marry is false and the maker had no intention of abiding by it but to deceive the woman to engage in sexual relations, there is a misconception of fact that vitiates the woman's consent. A breach of promise, however, is not a false promise. To establish a false promise, the maker must have had no intention of upholding his word at the time of giving it., The Supreme Court has also categorically distinguished between rape and consensual sex, and between the mere breach of a promise and not fulfilling a false promise in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675. The Court held that consent may be express or implied, coerced or misguided, obtained willingly or through deceit. There is a clear distinction between rape and consensual sex, and the court must examine whether the accused had the intention to marry the victim or acted in mala fide motive by making a false promise of marriage solely to satisfy his lust. An accused can be convicted for rape only if the court concludes that the intention was mala fide and that he had clandestine motives., The FIR and the status report stipulate that the petitioner and the prosecutrix were in a long‑term relationship and even a roka (engagement) ceremony had taken place. Pictures of the engagement ceremony have been produced before this court. The FIR further states that a wedding ceremony was supposed to take place and that it was only at the instance of the prosecutrix that the marriage was postponed. Thereafter, arguments began between the prosecutrix and the petitioner, and the prosecutrix faced resistance from the petitioner’s family, leading to the breaking off of the relationship. The Section 164 statement of the prosecutrix reveals that it took the petitioner three months to convince the prosecutrix’s parents to allow her to marry him., As per Section 90 of the Indian Penal Code, consent given under fear or misconception cannot be said to be consent. In this context, it is relevant to note that the prosecutrix and the petitioner were in a long‑term relationship and an engagement ceremony had taken place, indicating that the petitioner did intend to marry the prosecutrix. The mere hostile termination of the relationship does not demonstrate an absence of intention to marry at the outset. Consequently, this court is of the opinion that the consent accorded by the prosecutrix for the establishment of a physical relationship was not predicated upon misconception or fear., The impugned order dated 08.03.2021 fails to provide any reasons as to how there is sufficient material to proceed against the petitioner under Section 376(2)(n) of the Indian Penal Code. The order merely records the submission of the learned Assistant Public Prosecutor that there is sufficient material on record and proceeds at the behest of the prosecutor, without providing any reasons to justify its stand. As stated above, the learned trial court is not a mere post office and must apply its mind to the facts of the case to determine whether a prima facie case is made out against the accused that would warrant framing of charges. The impugned order has evidently failed to perform this duty and rendered a mechanical order on charge without sifting or weighing the evidence. Due to the legal infirmity in the order, this court deems it fit to exercise its jurisdiction under Sections 397 and 401 of the Criminal Procedure Code read with Section 482 of the Criminal Procedure Code to set the order aside., In light of the above observations, the instant petition is allowed, along with any pending applications, if any.
id_633	0	Petitioner: Mohd. Faiyyaz Mansuri, through his brother Mohd. Siraj. Respondent: Union of India, through Secretary, Minister of Home Affairs, New Delhi and others. Counsel for Petitioner: Rajendra Kumar Dwivedi, Harish Pandey, Sushil Kumar Singh. Counsel for Respondent: Additional Solicitor General, Pooja Singh. Honourable Justice Ramesh Sinha, Judge (per Justice Ramesh Sinha, Judge, for the Bench)., The instant writ petition under Article 226 of the Constitution of India has been filed by the detainee/petitioner, Mohd. Faiyyaz Mansuri, through his next friend/brother Mohd. Siraj, challenging the order of detention dated 17 September 2020 passed by the District Magistrate, Lakhimpur Kheri under Section 3(2) of the National Security Act, 1980 (hereinafter referred to as National Security Act), the order of approval dated 25 September 2020 passed by the Under Secretary, Home (Confidential) Department, Government of Uttar Pradesh under Section 3(4) of the National Security Act and the order of confirmation dated 28 October 2020 passed by the Under Secretary, Home (Confidential) Department, Government of Uttar Pradesh under Section 12(1) of the National Security Act., During pendency of the instant writ petition, the State Government extended the detention of the detainee/petitioner for a further period of six months from the date of detention i.e. 17 September 2020, by order dated 08 December 2020, which is also challenged by the detainee/petitioner by amendment., The prejudicial activities of the petitioner/detainee that impelled the third respondent (District Magistrate, Lakhimpur Kheri) to clamp the impugned detention order against him are contained in the grounds of detention. Facts relating to the detention of the detainee/petitioner as given in the grounds of detention (Annexure 8) accompanying the impugned detention order of 17 September 2020 are that one Sagar Kapoor, son of Brijesh Kapoor, resident of Bazarganj, Police Station Mohammadi, District Kheri made a written report to the effect that on 05 August 2020, at 8:39 p.m., the detainee/petitioner had posted a provocative post with the intention of provoking the sentiments of Hindu society through his Facebook ID, to which one Samreen Bano made an indecent comment on 5 August 2020, which was supported by Mohd. Arif, Mohd. Shadab and three to four other persons by attacking the Hindu religious sentiments, trying to increase religious fervor, threatening to kill and also trying to disturb the peace in the area. On the basis of the said written report, FIR No. 0595 of 2020, under Sections 153A, 292, 505(2), 506, 509 of the Indian Penal Code and Section 67 of the Information Technology (Amendment) Act, 2008, at Police Station Mohammadi, District Kheri was registered on 06 August 2020 at 12:46 p.m. During the investigation, Sections 292 and 509 of the Indian Penal Code were dropped, however Section 295A of the Indian Penal Code was added. On 08 August 2020, the detainee/petitioner was arrested in connection with the aforesaid FIR and sent to jail. The incident was published in the daily newspapers Hindustan and Amar Ujala. As a result of the detainee/petitioner’s posting of inflammatory material through his Facebook, various Hindu organisations and local persons gathered in the area, raised slogans against the inflammatory post and blocked the road, disturbing normal life, peace and public order. After deploying additional police force and serious efforts, public order was restored., It has also been mentioned in the grounds that the detainee/petitioner was confined to jail but his pariahs were trying for his release on bail. In this regard, a bail application on behalf of the detainee/petitioner was filed before the Additional Chief Judicial Magistrate, Outline Court, Mohammadi, Kheri, which was rejected by the High Court on 08 September 2020. Subsequently, another bail application on behalf of the detainee/petitioner was filed before the Sessions Court, Kheri, for which a hearing was fixed on 18 September 2021. Therefore, there was a possibility that the detainee/petitioner, if released on bail, would again indulge in similar crime, which would be prejudicial to the maintenance of public order. Further, there is a strong possibility of violence between two communities, which could disturb public order. It has further been stated that on the basis of the aforesaid incident, the detaining authority felt satisfied that, in order to prevent the detainee/petitioner from acting in any manner prejudicial to the maintenance of public order, it became necessary to pass orders for detention of the petitioner. The detainee/petitioner was also informed that he has a right to make a representation under Section 8 of the National Security Act to the detaining authority and the State Government through the Jail Superintendent. In respect of Sections 9 and 10 of the National Security Act, he was also informed that he may move a representation to the Chairman, Uttar Pradesh Advisory Board (Detention) through the Jail Superintendent. He was further informed that he may also make a representation to the Central Government through the Superintendent of the Jail., The detention order along with the grounds of detention dated 17 September 2020 was served to the petitioner/detainee on 17 September 2020. The true copy of the detention order and the grounds of detention have been annexed as Annexure No.1 and 8, respectively, to the writ petition. The impugned order of detention was approved by the State Government on 25 September 2020 under Section 3(4) of the National Security Act and communicated to the petitioner on 26 September 2020. On 25 September 2020, the order of detention, grounds of detention and all other relevant papers received from the District Magistrate, Lakhimpur Kheri were sent to the Central Government under Section 3(5) of the National Security Act by the State Government. On 28 October 2020, the State Government confirmed the order of detention dated 17 September 2020 under Section 12(1) of the National Security Act for a period of three months tentatively from the date of his actual detention i.e. w.e.f. 17 September 2020. On 28 September 2020, the case of the detainee/petitioner was referred to the Uttar Pradesh Advisory Board (Detention), Lucknow. On 29 September 2020, the detainee/petitioner submitted his representation to the District Magistrate, Lakhimpur Kheri, Secretary (Home), State of Uttar Pradesh, Lucknow and Secretary, Ministry of Home Affairs, Government of India, New Delhi and the Uttar Pradesh Advisory Board (Detention), Lucknow, to the Superintendent, District Jail, Lakhimpur Kheri, who, by letter dated 29 September 2020, forwarded the petitioner’s representation dated 29 September 2020 to the District Magistrate, Lakhimpur Kheri. On 01 October 2020, the District Magistrate, Lakhimpur Kheri sent the detainee/petitioner’s representation dated 29 September 2020 along with paragraph‑wise comments to the State Government, which was received by the State Government on 05 October 2020. On 06 October 2020, the State Government sent the petitioner’s representation dated 29 September 2020 along with paragraph‑wise comments to the Central Government, New Delhi and the Uttar Pradesh Advisory Board (Detention), Lucknow by separate letters dated 06 October 2020, which was received by the Central Government, Ministry of Home Affairs, New Delhi on 12 October 2020. On 08 October 2020, the State Government rejected the detainee/petitioner’s representation dated 29 September 2020, which was communicated to the detainee/petitioner on 09 October 2020. On 22 October 2020, the Uttar Pradesh Advisory Board (Detention), Lucknow examined the matter and also heard the detainee/petitioner in person. The opinion of the Uttar Pradesh Advisory Board (Detention), Lucknow dated 23 October 2020 was received by the State Government on 26 October 2020. The State Government thereafter considered the matter again and confirmed the detention of the detainee/petitioner for a further period of three months tentatively by the order dated 28 October 2020, which was duly communicated to the detainee/petitioner on 28 October 2020. On 13 November 2020, the Central Government, Ministry of Home Affairs, New Delhi rejected the detainee/petitioner’s representation dated 29 September 2020, which was communicated to the detainee/petitioner on 17 November 2020 through a wireless message., Feeling aggrieved by the aforesaid, the detainee/petitioner has filed the instant habeas corpus petition through his next friend/brother Mohd. Siraj, with the prayer as mentioned in paragraph 1 hereinabove., During pendency of the instant habeas corpus petition, the State Government, by order dated 08 December 2020, extended the period of detention for a further period of three months, which has been challenged by the detainee/petitioner by amendment in the instant habeas corpus petition. On 12 March 2021, the State Government again extended the period of detention for a further three months and then on 03 June 2021 the State Government extended the period of detention for a further three months, but it transpires from the record that the extension orders dated 12 March 2021 and 03 June 2021 have not been challenged by the detainee/petitioner in the instant habeas corpus petition., Heard Sri Sushil Kumar Singh, learned counsel for the detainee/petitioner, Ms. Pooja Singh, learned counsel for the Union of India/respondent No.1 and Sri S. N. Agnihotri, learned Additional Chief Standing Counsel for the State/respondents No.2 to 4 and perused the material brought on record., Challenging the impugned order of detention as well as consequential orders, Mr. Sushil Kumar Singh, learned counsel for the detainee/petitioner, has argued that it has been alleged in FIR No. 0595 of 2020 registered against the detainee/petitioner at Police Station Mohammadi, District Kheri that the petitioner/detainee had posted a derogatory message on the Facebook wall through his ID, on which one Samreen Bano had made an indecent comment on God and Goddess of the Hindu community. It has also been alleged in the FIR that some other persons, namely Mohd. Arif, Mohd. Shadab and three to four other persons, have also hurt the sentiments of the Hindu community. The detainee/petitioner was arrested in connection with the aforesaid FIR on 08 August 2020. He argued that the police, while registering the FIR and implicating the detainee/petitioner in the incident, could not verify and identify the verification report from Facebook to ascertain the fact by which mobile IMEI number the offending material was uploaded on Facebook as mandated under Section 65B of the Indian Evidence Act. He also argued that the police filed the charge‑sheet against the detainee/petitioner in the aforesaid FIR without verifying the factum or collected evidence as mandated under Section 65B of the Indian Evidence Act to connect a person with information technology crime. He further argued that in the FIR, four persons were named as accused and the main person, namely Samreen Bano, who is alleged to have made abusive comments, has not been arrested till date and similarly Mohd. Arif and Mohd. Shadab have also not been arrested by the police, which clearly establishes that it was not a stringent situation and there was no reason to invoke the stringent provisions of the National Security Act by the District Magistrate solely against the detainee/petitioner. He argued that the subjective satisfaction of the detaining authority is vitiated as the impugned order of detention has been passed on irrelevant facts which have been considered in the impugned order and there was no public order situation but only a normal law and order situation, if any., Learned counsel for the detainee/petitioner has further submitted that the extension orders dated 08 December 2020, 12 March 2021, 03 June 2021 were passed on the basis of the beat report of the constable, who manufactured and created it without any substantive piece of evidence as to who were the persons feeling apprehensive about the release of the detainee/petitioner. His submission is that an artificial beat report by the Station House Officer dated 02 December 2020 has been made the basis for the grant of extension, which is not sustainable in the eyes of law for want of basic material for extension. He pointed out that the first extension order dated 08 December 2020 was not supplied to the detainee/petitioner, hence the valuable right of the detainee/petitioner as guaranteed under Article 22(5) of the Constitution of India has been infringed rendering the continued detention of the petitioner illegal. He submits that when the extension order dated 08 February 2021 was filed by the District Magistrate, Lakhimpur Kheri through a supplementary counter affidavit, then the detainee/petitioner challenged the second extension order by way of amendment application. He further submitted that the petitioner/detainee was detained under the National Security Act on 17 December 2020 without being informed about any extension order; however, when the Court intervened in the matter, the order of extension dated 08 December 2020 was supplied to the detainee/petitioner on 19 February 2021 by the Jail Authorities and further the supplementary counter affidavit was filed by annexing the order on 22 February 2021., Learned counsel for the detainee/petitioner has argued that the proviso to Section 3(2) of the National Security Act provides that no order passed under Section 3(2) shall, in the first instance, exceed six months and if the State Government is satisfied that the order is required to be passed for a further period, it may extend the period of detention by such period not exceeding three months at any one time and in no case shall the period of detention exceed twelve months in total. He argued that in the present case, perusal of the impugned order of detention dated 17 September 2020 passed by the detaining authority as well as the impugned order of affirmation passed by the State Government dated 25 September 2020 reveals that it does not specify the period for which detention has been ordered and, therefore, in view of the ratio laid down by the Apex Court in Lahu Shrirang Gatkal v. State of Maharashtra through the Secretary and others (2017) 13 SCC 519, the impugned detention order and consequential order are illegal and liable to be quashed., The next submission of the learned counsel for the detainee/petitioner is that there was undue delay in the disposal of the representation of the detainee/petitioner on the part of the Central Government, Ministry of Home Affairs, New Delhi as the petitioner’s representation dated 29 September 2020 was received by the Central Government on 12 October 2020 but it was rejected on 13 November 2020 i.e. after one month and the said order of rejection dated 13 November 2020 was communicated to the petitioner through a wireless message on 17 November 2020 i.e., after four days from the date of passing the order of rejection. He argued that there is no plausible explanation for deciding the petitioner’s representation after one month and communicating the same to the petitioner after four days. He argued that the delay and latches committed by the Central Government in considering the detainee/petitioner’s representation has infringed fundamental rights of the detainee enshrined under Articles 21 and 22(5) of the Constitution of India. He argued that on this count alone, the impugned order of detention is liable to be quashed., To strengthen his submission, learned counsel for the detainee/petitioner has placed reliance upon Rajammal v. State of Tamil Nadu and another (1991) 1 SCC 417, Mohinuddin @ Moin Master v. District Magistrate, Beed AIR 1987 SC 1977, Satyapriya Sonkar v. Superintendent, Central Jail 2000 Cr.L.J. Allahabad (D.B), Kundanbhai Dulabhai Shaikh v. District Magistrate, Ahmedabad 1996 (3) SCC 194, K. M. Abdulla Kunhi v. Union of India (1991) 1 SCC 476 and Harish Pahwa v. State of Uttar Pradesh & others A.I.R., While supporting the impugned order of detention and the impugned consequential orders, learned Additional Government Advocate appearing on behalf of the State/respondents No.2 to 4 has vehemently argued that the complete procedure as provided in the National Security Act has been adopted. The detainee/petitioner was served the orders promptly. The State Government approved the detention order well within twelve days as provided under Section 3(4) of the National Security Act. The State Government forwarded the copy of the detention order etc. to the Central Government within seven days from the date of approval as required under Section 3(5) of the National Security Act. The State Government forwarded the detention order and grounds of detention etc. to the Uttar Pradesh Advisory Board (Detention), Lucknow well within three weeks from the date of actual detention as required under Section 10 of the National Security Act. The Uttar Pradesh Advisory Board heard the detainee in person and sent its report along with the opinion that there is sufficient cause for preventive detention of the petitioner well within seven weeks from the date of detention of the petitioner as provided under Section 11(1) of the National Security Act. The detention order was confirmed tentatively for three months from the date of actual detention and was served upon the detainee. Thereafter, the detention order was extended time to time in the manner as mentioned above., Elaborating his submission, learned Additional Government Advocate has further submitted that in exercise of powers under Section 3(3) of the National Security Act, the State Government is empowered to pass the detention order at the first instance for three months and if satisfied to extend such period from time to time by any period not exceeding three months at any one time. The maximum period of detention for which any person may be detained in pursuance of any detention order which has been confirmed under Section 12 of the National Security Act shall be twelve months from the date of detention (subject to the proviso). Thus, in view of Article 22(4) of the Constitution of India read with Sections 3(3) and Section 13 of the National Security Act, the detention of the petitioner for twelve months from the date of actual detention is completely justified and legal and there is no illegality in extending the period of detention time to time for a total period of twelve months., Learned Additional Government Advocate has further argued that the State Government has rejected the petitioner’s representation without any delay. The act/offence committed by the detainee is of the nature of affecting public order. The District Magistrate, after having gone through the report of sponsoring authorities and after being satisfied that to prevent the detainee from acting prejudicial to maintenance of public order, passed the order of detention after recording his subjective satisfaction. He also argued that a single act in the nature of affecting public order is sufficient for the detaining authority to exercise its power given under the National Security Act. It is not the number of acts that matters but the effect of the act on the tempo of life, the extent of its reach upon society and its impact as has been held by the Apex Court in State of Uttar Pradesh v. Sanjay Pratap Gupta (2004) 8 SCC 591., Learned Additional Government Advocate has further argued that the act/offence committed by the detainee/petitioner clearly violates the rights of another religion and is in the nature of insulting the religious sentiments of one community. The calculated tendency of this aggravated form of insult is clearly to disrupt public order. The act committed by the detainee/petitioner is in the nature of insulting the religion with deliberate and malicious intention of outraging the religious feelings of one class. He has placed reliance upon Ramji Lal Modi v. State of Uttar Pradesh AIR 1957 SC 620 and argued that nobody can exercise fundamental rights by putting public order in jeopardy. The maintenance of public order is paramount in the larger interest of society., Learned Additional Government Advocate has also placed reliance upon Gulam Abbas and others v. State of Uttar Pradesh and others (1984) 1 SCC 81 and argued that the tweet/post and the comments of different persons against the Hindu Goddess cannot be said to be any religious right of the petitioner and others; rather it is an offence provoking the sentiments of another religion. The petitioner is seeking his right given under Article 21 of the Constitution of India, who himself is not having faith in the Constitution and the judicial system of the country. He argued that after the verdict of the Honorable Supreme Court in respect of the Ram Janmabhoomi dispute, it is law of the land and that giving an open challenge to the verdict of the Honorable Supreme Court by posting a tweet clearly shows the deliberate and malicious intention against one religion and against the highest Court of the Nation. The intention is very clear that the petitioner does not have faith in the laws of the land. He also argued that the extension of detention period is well within the jurisdiction of the Detaining Authority/State Government. At the time of further extension of detention order, it is not necessary to furnish the grounds of extension to the detainee each time. The detention period was extended on the grounds which were already communicated to the petitioner and no prejudice was likely to be caused to the petitioner. In support of his submission, he has placed reliance upon Rakesh Singh v. Union of India and 3 others (2021) Law Suit (All 159)., Learned Additional Government Advocate has further argued that there is no illegality in the order of detention. The petitioner’s activities are prejudicial to the maintenance of public order. The subjective satisfaction of the detaining authority is well founded, based on clinching material on record. Hence, the writ petition is liable to be dismissed., Ms. Pooja Singh, learned counsel for the Union of India/respondent No.1, has submitted that the representation of the detainee/petitioner was considered with all promptness and there was no negligence or delay in this regard., Having heard the learned counsel for the parties and gone through the impugned order of detention as well as material brought on record, the main thrust of arguments of the learned counsel for the detainee/petitioner while challenging the impugned order of detention and consequential impugned orders are as follows: (1) The sponsoring authority, without ascertaining the fact from the Facebook Company that the alleged material is posted with the petitioner’s ID or not as mandated under Section 65B of the Indian Evidence Act, has recommended to slap the National Security Act upon the detainee/petitioner. (2) The Detaining Authority i.e. District Magistrate, Lakhimpur Kheri has passed the impugned detention order in a routine manner without application of mind on the report submitted to him by the sponsoring/police authority and that the District Magistrate has failed to record any real subjective satisfaction in the impugned order of detention; (3) The first extension order dated 08 December 2020 was not supplied to the detainee/petitioner but after the order passed by this Court, the order of extension dated 08 December 2020 has been supplied to the detainee/petitioner; (4) In the impugned order of detention dated 17 September 2020 passed by the detaining authority as well as the impugned order of affirmation passed by the State Government dated 25 September 2020, the period for which detention has been ordered does not specify, hence, in view of the ratio laid down by the Apex Court in Lahu Shrirang Gatkal v. State of Maharashtra (Supra), the impugned order of detention and consequential affirmation order are illegal; (5) There was undue delay in the disposal of the representation of the detainee/petitioner on the part of the Central Government, Ministry of Home Affairs, New Delhi., With regard to the first and second point of challenge by the detainee/petitioner, learned Additional Government Advocate has placed reliance upon the judgment of the Apex Court in Ramji Lal Modi v. State of Uttar Pradesh (Supra) and Gulam Abbas and others v. State of Uttar Pradesh and others (Supra) and has contended that the act/offence committed by the detainee clearly violates the right of another religion and is in the nature of insulting the religious sentiments of one community. Thus, the calculated tendency of this aggravated form of insult is clearly to disrupt public order and the act committed by the petitioner is in the nature of insulting the religion with deliberate and malicious intention of outraging the religious feelings of one class. He argued that the Detaining Authority has considered the entire material placed before him by the sponsoring authority, particularly the fact that the material posted by the detainee/petitioner through his Facebook ID has absolutely disturbed the communal harmony of the society and, more so, the statement recorded under Section 161 of the Code of Criminal Procedure, the detainee/petitioner has himself admitted the fact that he has posted the alleged material from his Facebook ID, rightly satisfies that after being released on bail, the detainee/petitioner shall again indulge in activities prejudicial to public order. Hence, there is no illegality or infirmity in passing the impugned order of detention by the Detaining Authority., A perusal of the grounds of detention reveals that a provocative post “Babri maszid ek din dubara banai Jayegi, jis tarah Turki ki Sofiya maszid banai gai thi” alleged to have been posted by the detainee/petitioner on his Facebook Wall on 5 August 2020 was taken into consideration by the detaining authority while coming to the subjective satisfaction that the petitioner should be detained under the National Security Act. On careful perusal of the grounds of detention dated 17 September 2020, particularly paragraph 1, it indicates that the detainee/petitioner had been charged for posting the aforesaid provocative message/tweet on his Facebook Wall on 17 September 2020, which amounts to causing fear or alarm in the public, or to any section of the public whereby any person may be induced to commit offence against the State and also disturb communal harmony. For that offence, one Sri Sagar Kapoor lodged an FIR, which was registered as FIR No. 595 of 2020, under Sections 153A, 292, 505(2), 506, 509 of the Indian Penal Code and Section 67 of the Information Technology (Amendment) Act, 2008, at Police Station Mohammadi, District Kheri on 06 August 2020 at 12:46 p.m. During the investigation, Sections 292 and 509 of the Indian Penal Code were dropped, however Section 295A of the Indian Penal Code was added. On 08 August 2020, the petitioner was arrested in connection with the aforesaid FIR and was sent to jail. After his arrest, a confessional statement of the detainee/petitioner was recorded and in his statement, the detainee/petitioner has confessed his guilt in posting the aforesaid provocative message on his Facebook. The grounds of detention further show that in view of communal tension and enmity, people at different places gathered and raised slogans against the said message, thereby disturbing communal harmony and, therefore, additional police force was deployed and after serious efforts, public order could be restored. It has also been mentioned in the grounds of detention that after arrest of the petitioner, he moved an application for bail, which was rejected by the Court concerned and thereafter the detainee/petitioner moved an application for bail before the Sessions Court. Therefore, the Detaining Authority, after considering the entire material on record, satisfied that in order to prevent the detainee/petitioner from acting in any manner prejudicial to the maintenance of public order, it became necessary to pass an order of detention of the petitioner., Observing that the aim of preventive detention is not to punish a man for having done something but to intercept and to prevent him from doing so, the Supreme Court in the case of Naresh Kumar Goyal v. Union of India and others (2005) 8 SCC 276, and reiterated in Union of India and another v. Dimple Happy Dhakad AIR 2019 SC 3428, has held that an order of detention is not a curative or reformative or punitive action, but a preventive action, the avowed object of which is to prevent antisocial and subversive elements from imperilling the welfare of the country or security of the nation or from disturbing public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so., To sum up, a law of preventive detention is not invalid because it prescribes no objective standard for ordering preventive detention, and leaves the matter to the subjective satisfaction of the Executive. The reason for this view is that preventive detention is not punitive but preventive and is resorted to with a view to prevent a person from committing activities regarded as prejudicial to certain objects that the law of preventive detention seeks to prescribe. Preventive detention is, thus, based on suspicion or anticipation and not on proof. The responsibility for security of the State, or maintenance of public order, or essential services and supplies, rests on the Executive and it must, therefore, have necessary powers to order preventive detention. Having said that, subjective satisfaction of a detaining authority to detain a person or not, is not open to objective assessment by a Court. A Court is not a proper forum to scrutinize the merits of an administrative decision to detain a person. The Court cannot substitute its own satisfaction for that of the authority concerned and decide whether its satisfaction was reasonable or proper, or whether in the circumstances of the matter, the person concerned should have been detained or not. It is often said and held that the Courts do not even go into the question whether the facts mentioned in grounds of detention are correct or false. The reason for the rule is that to decide this, evidence may have to be taken by the Courts and that is not the object of law of preventive detention. This matter lies within the competence of the Advisory Board. While saying so, this Court does not sit in appeal over decision of the detaining authority and cannot substitute its own opinion over that of the detaining authority when grounds of detention are precise, pertinent, proximate and relevant., It is apt to mention here that our Constitution undoubtedly guarantees various freedoms and personal liberty to all persons in our Republic. However, it should be kept in mind by one and all that the constitutional guarantee of such freedoms and liberty is not meant to be abused and misused so as to endanger and threaten the very foundation of the pattern of our free society in which the guaranteed democratic freedom and personal liberty is designed to grow and flourish. The larger interests of our multireligious nation as a whole and the cause of preserving and securing to every person the guaranteed freedom peremptorily demand reasonable restrictions on the prejudicial activities of individuals which undoubtedly jeopardize the rightful freedoms of the rest of the society. The main object of preventive detention is the security of a State, maintenance of public order and of supplies and services essential to the community, demanding effective safeguards in the larger interest of sustenance of peaceful democratic way of life.
id_633	1	In the instant case, on examining the grounds of detention, briefly referred to herein above, on the touchstone of the legal position as emerging from the aforementioned decisions, we are of the considered view that the activities relied upon by the Detaining Authority to conclude that, in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order, it became necessary to pass an order for detention of the detenue/petitioner, cannot be said to be mere disturbance of law and order. As mentioned in the ground of detention, the activities of the detenue/petitioner pertain to disturbing the communal harmony of society. The posting of the provocative message through his Facebook wall, as referred to herein above, strikes at the root of the State’s authority and is directly connected to public order. This act of the detenue/petitioner was not directed against a single individual, but against the public at large having the effect of disturbing the even tempo of life of the community and thus breaching public order., The Supreme Court of India, therefore, has no hesitation in holding that the instance of petitioner’s activities enumerated in the grounds of detention clearly shows that his activities cover a wide field and fall within the contours of the concept of public order and the Detaining Authority was justified in law in passing the impugned order of detention. Hence, there is no substance on the plea of the petitioner in this regard., So far as the argument relating to non‑supply of the first order of extension dated 08.12.2020 to the detenue/petitioner is concerned, it transpires from the record that the order of extension dated 08.12.2020 was challenged by the detenue/petitioner by means of amendment and, as per the petitioner’s own submission, the order of extension dated 08.12.2020 was supplied to the detenue on 19.02.2021. Therefore, it is immaterial at this stage to raise the issue of non‑supply of the first order of extension dated 08.12.2020. Moreover, there was no requirement to furnish fresh grounds of extension because the grounds of detention were the same, so no prejudice was likely to be caused to the petitioner., So far as the argument of the learned counsel for the petitioner that the detention order does not specify the period for which detention has been ordered, hence, in view of the law laid down by the Apex Court in Lahu Shrirang Gatkal v. State of Maharashtra through the Secretary and others (supra), the impugned detention order is illegal, it is relevant to mention that the Supreme Court of India, while adjudicating this issue in Habeas Corpus No. 24213 of 2020: Kanhaiya Awasthi Thru Next Friend Shivangi Awasthi v. Union of India Thru Secretary, Home Affairs, New Delhi & Ors, decided on 16.08.2021, has taken note of the ratio laid down by the Apex Court in T. Devaki v. Government of Tamil Nadu and others: 1990 (2) SCC 456, which has subsequently been followed in State of Maharashtra & others v. Balu s/o Waman Patole (Criminal Appeal No. 1681 of 2019, decided on 13.11.2019) as well as the ratio laid down by the Apex Court in Secretary to Government of Tamil Nadu Public (Law and Order) Revenue Department and others v. Kamala and others: (2018) 5 SCC 322. The Court held that there is no substance in the plea of the detenue/petitioner that the impugned detention order and the impugned order confirming the detention order are bad in law as they do not mention the period of detention at the first instance. Hence, the plea of the detenue/petitioner in this regard has no force and is rejected., The next submission of the learned counsel for the detenue/petitioner is that there is undue delay in the disposal of the representation of the detenue/petitioner on the part of the Central Government, Ministry of Home Affairs, New Delhi. For appreciating the aforesaid submission, we deem it appropriate to reproduce paragraph 4 of the supplementary counter‑affidavit filed by Smt. Meena Sharma, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi, in which details of dealing with the petitioner’s representation have been narrated. Paragraph 4 reads as follows: That, in addition to paragraph 4 of the counter affidavit dated 07.01.2021, it is further submitted that a copy of the representation dated 29.09.2020 of the detenue along with paragraph‑wise comments of the detaining authority was forwarded by the Under Secretary, Government of Uttar Pradesh to the Central Government in the Ministry of Home Affairs vide letter no. 84/2/59/2020‑C.X‑5 dated 06.10.2020. The same was received in the section concerned in the Ministry of Home Affairs on 12.10.2020. It is pertinent to mention that after relaxation of a few Coronavirus Disease 2019 norms, the section received 72 receipts including 12 representations from various State Governments. Also, as per guidelines of the Department of Personnel and Training, a roster system was there as preventive measures to contain the spread of Novel Coronavirus. Unfortunately, the dealing hand fell ill on 14th October and was on leave on 15th October 2020. On 16th October, he managed to come to office for dealing urgent receipts. There was an intervening period of two holidays, i.e., Saturday and Sunday on 17th and 18th October 2020. After that, on 19th and 20th October, the facts were consolidated and a note was prepared after going through records received from the detaining authority and State Government. Thereafter, the file was put up for the consideration of the Union Home Secretary on 21.10.2020. The file reached the Under Secretary (National Security Act) on 21.10.2020. The Under Secretary (National Security Act) with her comments forwarded the same to the Deputy Legal Advisor (DLA) on 22.10.2020. The Deputy Legal Advisor (DLA) forwarded the same to the Joint Secretary (IS‑II) on 22.10.2020. The file reached the office of Joint Secretary (IS‑II) on 23.10.2020. It is pertinent to mention that the officer of Deputy Legal Advisor is at Major Dhyan Chand National Stadium and the office of Joint Secretary (IS‑II) is at North Block. The Joint Secretary (IS‑II) with his comments forwarded the same to the Union Home Secretary on 24.10.2020. Thereafter, it was felt that an independent report from the Central Agency was also needed to ascertain the detenue’s involvement in the case and whether his release had the potential to further disturb peace and public order in the area. There was an intervening period on 25th October 2020, being Sunday. The file reached the section concerned from the aforesaid level of officers on 27.10.2020. Accordingly, the same report was sought on 27.10.2020. The report from the Central Agency was received in the section concerned on 06.11.2020. Thereafter, there was an intervening period of two holidays on 07th and 08th November 2020, being Saturday and Sunday. After receiving input from the Central Agency, the case was again processed for consideration of the Union Home Secretary on 09.11.2020. The Under Secretary with her comments forwarded the same to the Deputy Legal Advisor on 10.11.2020. The Deputy Legal Advisor forwarded the same to the Joint Secretary (IS‑II) on 11.11.2020. The file reached the Joint Secretary on 12.11.2020. The file was further examined by the Joint Secretary (IS‑II) and then he, with comments, forwarded the file to the Union Home Secretary on 13.11.2020. The Union Home Secretary, having carefully gone through the material on record, including the order of detention, the grounds of detention, the representation of the detenue, the comments of the detaining authority thereon and the input from the Central Agency, concluded that the detenue had failed to bring forth any material cause or grounds in his representation to justify the revocation of the order by exercise of the powers of the Central Government under Section 14 of the National Security Act, 1980. He therefore rejected the representation on 13.11.2020. The file reached the section concerned through the aforesaid level on 17.11.2020. During the intervening period, 14th and 15th November were holidays being Saturday and Sunday. Accordingly, the detenue was informed vide Wireless Message No. II/15028/163/2020‑NSA dated 17.11.2020. It is further submitted that the representation was examined with utmost care and caution with promptitude. Hence, there was no bona‑fide or deliberate delay in disposal of the representation on part of Respondent No. 1, i.e., the Union of India., From the affidavit submitted by the Under Secretary, Ministry of Home Affairs, Government of India, it transpires that the petitioner’s representation dated 29.09.2020, which was forwarded by the State Government vide letter dated 06.10.2020, was received in the section concerned of the Ministry of Home Affairs on 12.10.2020 but could not be processed between 13.10.2020 and 20.10.2020 due to the receipt of 72 representations from various State Governments after relaxation of a few Covid norms and because the dealing hand fell ill on 14th October 2020 and was on leave on 15th October 2020, with 17th and 18th October being Saturday and Sunday. We have given anxious consideration to whether this could be a proper explanation for withholding the representation. In our considered opinion, the Central Government was at fault. It appears that the Central Government, though having received the petitioner’s representation on 12.10.2020, could only process it on 21.10.2020 when it was placed before the Under Secretary, and the day‑to‑day process of the file from 13.10.2020 to 21.10.2020 has not been properly explained in the affidavit. Moreover, the file relating to the petitioner’s representation reached the office of Joint Secretary (IS‑II) on 23.10.2020 and was forwarded by the Joint Secretary (IS‑II) to the Union Home Secretary on 24.10.2020. Thereafter, a report was sought from the Central Agency and the required report was received by the section concerned on 06.11.2020. It transpires that the report of the Central Agency, received on 06.11.2020, was processed for consideration of the Union Home Secretary only on 09.11.2020. The day‑to‑day explanation for dealing with the petitioner’s representation between 25.10.2020 and 05.11.2020 has not been made by the Central Government. Furthermore, the petitioner’s representation was rejected on 13.11.2020 but was communicated to the detenue/petitioner only on 17.11.2020 via wireless message. Again, there is no day‑to‑day explanation between 14.11.2020 and 16.11.2020 on behalf of the Central Government. Thus, there was delay in disposal of the representation of the petitioner by the Central Government and, having regard to the nature of detention and rigor of law, we are of the view that there was disproportionate delay on the part of the Central Government., For the reasons aforesaid, we are of the view that the plea of the detenue/petitioner that there is delay in forwarding the petitioner’s representation on the part of Respondent No. 1 (Union of India) has substance and, on this count alone, the impugned detention order is liable to be quashed., In the result, the instant Habeas Corpus Petition is allowed. The impugned order of detention dated 17.09.2020 and the consequential orders are hereby quashed. The detenue/petitioner is ordered to be set at liberty by the respondents forthwith unless required in connection with any other case., For the facts and circumstances of the case, there is no order as to costs.
id_637	0	The Iffco Tokio General Insurance Company Ltd., AFL House, 2nd Floor, Lakbharati Complex, Marol Maroshi Road, Andheri (E), Mumbai 400059. Appellant versus Smt. Bhagyashri Ganesh Gaikwad; Mrs. Sangita Shivaji Gaikwad, Resident at Kondiwade, Nane Tal Maval, District Pune; Mr. Laxman Ramchandra Gogawale, CIDCO Colony, Turbhe, Navi Mumbai, Maharashtra. Respondents: Mr. Vikrant Purashurami as well as Rama Naik, Advocate for the Appellant; Mr. Uday B. Nighot, Advocate for the Respondents Nos. 1 to 3. Date: 3rd March 2023., Being aggrieved and dissatisfied with the judgment and order passed by the Motor Accident Claims Tribunal, Pune, the Appellant Insurance Company preferred this Appeal., Brief facts of the case are as follows: On 15th May 2010, Sakharam Gaikwad was riding the motorcycle bearing Number MH-14/BD-9975 and deceased Ganesh was a pillion rider on the same motorcycle. At the time of the incident, Sakharam was crossing the Mumbai‑Pune road heading towards Kamshet. The Respondent No.1 drove his rickshaw bearing Number MH-43/C-1989 in a rash, excessive and negligent manner and thereby collided with the motorcycle. Because of the collision, Sakharam and the deceased fell on the road and sustained multiple injuries. Deceased Ganesh sustained a head injury and died while receiving treatment. An offence was registered against the Respondent No.1 rickshaw driver., The Claimants filed a Claim Petition for compensation before the Motor Accident Claims Tribunal, Pune. The Tribunal has passed a judgment and order, which is under challenge. It is the contention of learned Counsel for the Appellant that the Respondent No.1 drove the offending rickshaw outside the jurisdiction and thereby violated the terms and conditions of the permit. Therefore, the Appellant is not liable to pay any compensation to the Claimants., The permit to ply the offending rickshaw was for Thane district only. The incident occurred outside Thane district., The learned Counsel further submits that Claimant No.1, the wife of deceased Ganesh, remarried after Ganesh's death. Hence, she is not entitled to compensation and the income of the deceased is considered on a higher side. The Counsel requests that the Appeal be allowed., It is the contention of learned Counsel for the Respondent Claimants that the offending rickshaw had a valid permit. No witness was examined by the Appellant to prove a breach of the terms and conditions of the permit before the Tribunal., The learned Counsel further submits that when Ganesh died, Claimant No.1 was a widow and thereafter filed a Claim Petition for compensation. At the time of her husband's death she was only 19 years old, so her remarriage cannot be a ground to deny compensation. The Counsel also states that the deceased was earning Rs.10,000 per month from welding work and from agricultural land, but the Tribunal considered only Rs.5,000 per month. The Counsel requests that the Appeal be dismissed., I have heard both learned Counsel and perused the judgment and order passed by the Motor Accident Claims Tribunal, Pune. The Tribunal has awarded compensation of Rs.10,89,754., While dealing with the issue of breach of permit, the Tribunal observed that it is a settled position that breach of terms and conditions of a policy is quite different from breach of terms and conditions of a permit issued by the Regional Transport Office Authority. The permit was issued for the purpose of plying the rickshaw and providing service within the District of Thane; however, it does not preclude the Opponent No.1 from carrying the rickshaw out of the jurisdiction of Thane District. I do not find any infirmity in this observation. In my view, the appellants have not examined any witness to prove that taking the offending rickshaw outside the jurisdiction of Thane District was a breach of the permit, and it does not amount to a breach of the terms and conditions of the insurance policy. Hence, I do not see merit in the contention of learned Counsel for the Appellant that there was a breach of the terms and conditions of the insurance policy., In respect of the issue of remarriage of Claimant No.1, the record shows that at the time of her husband's death she was 19 years old. She subsequently filed a Claim Petition for compensation and, during the pendency of the petition, remarried. One cannot expect that a widow must remain unmarried for life or until compensation is awarded. Considering her age and the fact that she was the wife of the deceased at the time of the accident, she is entitled to compensation. Moreover, remarriage after the death of a husband cannot be a taboo to receiving compensation. Section 166 of the Motor Vehicles Act deals with who may file an application for compensation., Section 166 – Application for Compensation: (1) An application for compensation arising out of an accident specified in sub‑section (1) of section 165 may be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased. This provision allows any legal representative of the deceased to file an application for compensation. Claimant No.1 was the wife of the deceased at the time of the accident; as a legal representative she filed an application for compensation, which is lawful., In respect of the income of the deceased, it is on record that he was engaged in fabrication work and also earned from agricultural land, receiving Rs.10,000 per month. The Tribunal, however, considered Rs.5,000 per month as the deceased's monthly income. I do not find any infirmity in this assessment. No evidence was produced regarding income from fabrication work, and the income from agricultural work can be treated as supervisory income. Hence, the notional income considered by the Tribunal is proper., It is the contention of learned Counsel for the Respondents/Claimants that the Tribunal has not awarded a consortium amount, funeral expenses, or loss of estate., It is the contention of learned Counsel for the Appellant that the Claimants have not preferred an appeal for enhancement of compensation and therefore are not entitled to any enhancement without an appeal. In my view, Section 168 of the Motor Vehicles Act deals with just compensation. The consortium amount is awarded to the legal heirs of the deceased on the basis of parental, spousal and filial consortium. The Claimants are entitled to a consortium amount. Accordingly, I am considering the consortium amount. As per the view of the Honorable Apex Court in the case of Magma General Insurance Co. Ltd v. Nanu Ram, each Claimant is entitled to Rs.40,000 as a consortium amount. There are three Claimants, so they are entitled to Rs.1,20,000 as consortium, Rs.15,000 for funeral expenses and Rs.15,000 for loss of estate, totaling Rs.1,50,000., The Tribunal has awarded Rs.70,000 for funeral expenses, loss of love and affection and consortium. If this amount is deducted from the amount considered by this Court, the balance comes to Rs.80,000. The Claimants are entitled to Rs.80,000., In view of the above, I pass the following order: Appeal is dismissed. No order as to costs. The Claimants are entitled to Rs.80,000 as additional amount at 7.5 % per annum from 1 October 2017 till realization of the amount. The Appellant is directed to deposit the additional amount along with accrued interest within four weeks of receipt of this order. The Claimants are permitted to withdraw the additional amount along with accrued interest. The statutory amount shall be transmitted to the Motor Accident Claims Tribunal, Pune. Parties are at liberty to withdraw it as per rule. All pending civil applications, if any, are disposed of.
id_639	0	Judgment reserved on 04.09.2023 and judgment delivered on 11.10.2023 by the Chief Justice of the Allahabad High Court. Petitioner: Mahek Maheshwari. Respondent: Union of India and four others. Counsel for petitioner: In person. Counsel for respondents: Additional Standing Government Advocate. Hon'ble Pritinker Diwaker, Chief Justice; Hon'ble Ashutosh Srivastava, Justice., The instant writ (Public Interest Litigation) seeks to address the denial of fundamental rights under Articles 25 and 26 of the Constitution of India by preventing Hindus from worshipping the actual place of Krishna Janmabhoomi at Mathura due to the construction of the Shahi Idgah Mosque after demolition of the temple, as well as the issue of imposing Sections 2, 3 and 4 of the Places of Worship (Special Provisions) Act, 1991, which are alleged to be unconstitutional., In the writ it has been averred that the petitioner is a devout Hindu and prays that his fundamental right to worship be facilitated and protected. The petitioner wants the actual place of Krishna Janmabhoomi over which the Shahi Idgah Mosque exists to be acquired by the State Government and handed over to Hindus for worshipping Lord Krishna Virajman at the Krishna Janmasthan. It has been averred that the maternal great‑grand‑mother, who resided in Mathura, told the petitioner about the spiritual importance of Mathura and Braj Mandal 84 Kos and how the Shahi Idgah Mosque came to be constructed after demolition of a lofty temple of Lord Shree Krishna at the birthplace by Aurangzeb, the Mughal Emperor. It has also been averred that the right of worship of the Hindu community has been substantially reduced from 13.37 acres of land of Sri Krishna Janmasthan on account of encroachment by the Trust Masjid Idgah, which manages the affairs of the Shahi Idgah. The Committee of Management of Masjid Trust Idgah entered into an illegal compromise on 12.10.1968 with the Society Shree Krishna Janmasthan Sewa Sangh and both have played fraud upon the Allahabad High Court, the deities and devotees with a view to grab the property. The petition also attempts to demonstrate the demolition and encroachment over Shri Krishna Janmasthan by stating historical and archaeological facts. It states that during the British rule in 1815 the entire land of the Janmasthan measuring 13.37 acres was put to auction and sold to Raja Patni Mal of Banaras, the highest bidder. The name of the Raja was recorded as owner in possession. The challenge to the auction, sale, ownership and possession by Muslims failed. A civil suit, being Civil Suit No. 517 of 1928, was filed by Rai Kishan Das, heir of Raja Patni Mal, in which the ownership and possession of the land in dispute was upheld up to this Allahabad High Court in Second Appeal No. 691 of 1932, decided on 02.12.1935. On 08.02.1944, Rai Kishan Das and Rai Anand Das, heirs of Raja Patni Mal, executed a sale deed of the 13.37 acres in favour of Mahamana Madan Mohan Malviya, Goswami Ganesh Dutt and Bhikhan Lallji Attrey. Yet another suit, being Suit No. 4 of 1946, was filed on behalf of Trust Masjid Idgah questioning the sale deed; it was dismissed on the basis of compromise and it was agreed that the decision in Second Appeal No. 691 of 1932 would be binding on the parties. Thereafter, a trust in the name and style of Shri Krishna Janmabhoomi Trust was created on 21.02.1951 and registered on 09.03.1951 under which the entire land measuring 13.37 acres was dedicated to the deity Lord Shree Krishna Virajman., In the above backdrop, Mahek Maheshwari, appearing pro se, argues that Raja Patni Mal and his heirs initially and thereafter the deity Lord Shree Krishna Virajman are the exclusive owners and in possession of the entire 13.37 acres of land and that the Masjid Idgah, or any Muslim, does not have any right or title over the aforesaid land. The settlement between Shree Krishna Janmabhoomi Trust and Shahi Idgah Mosque, under which approximately 2 acres of land were given to Shahi Idgah Mosque, is a fraud played upon the Allahabad High Court, the deities and the devotees., Mahek Maheshwari, petitioner in person, highlighting the basic difference between a mosque and a temple, has argued that the Krishna Janmabhoomi would have an overriding claim over that of a mosque. He has submitted on the strength of a constitutional bench decision of the Supreme Court in the case of Ismail Farooqui vs. Union of India reported in 1994 (6) SCC 376 that under Mohammedan law applicable in India, the title to a mosque can be lost by adverse possession and that a mosque is not an essential part of the practice of the religion of Islam and namaz can be offered anywhere, even in the open. Therefore, its acquisition is not prohibited under the Constitution. In the case of a temple, it is otherwise; even if a temple is in ruins, it remains a temple and can be revived. If it is destroyed, a suit can be filed by or on behalf of the deity to recover possession. Apart from the above, it has been argued that the provisions of Sections 3, 4 and 5 of the Places of Worship (Special Provisions) Act, 1991 are violative of the provisions of Articles 14, 25 and 26 of the Constitution of India and are liable to be declared unconstitutional. It is thus submitted that the writ (Public Interest Litigation) is liable to be entertained and the interim relief prayed for is liable to be granted., Shri Kunal Ravi Singh, learned Chief Standing Counsel for the State of Uttar Pradesh, opposing the writ petition, submits that though this petition has been described as a Public Interest Litigation, it is not in the public interest but rather espouses a personal cause as the petitioner claims to be a devout Hindu and ardent devotee of Lord Shree Krishna. The petition is based on the personal belief of the petitioner to worship at the spot where the Shahi Idgah Mosque is presently situated. There is no declaration as per Rule 3A of Rule 1 of Chapter XXII of the Allahabad High Court Rules, 1952 and in the absence thereof, the writ (Public Interest Litigation) is liable to be dismissed in the light of the order passed in PIL No. 31160 of 2021 (Syed Ahmad Faraz vs. U.P. Sunni Central Waqf Board and others). It is further submitted that under the order dated 26.05.2023 passed in Transfer Application (Civil) No. 88 of 2023 (Bahgwan Shri Krishna Virajman and 7 others vs. U.P. Sunni Central Waqf Board and 3 others) as many as ten cases pending before the Civil Judge, Senior Division, Mathura have been transferred to this Court and are pending. The suits raise the same issues as have been raised in the instant writ (Public Interest Litigation). It is therefore prayed that the writ (Public Interest Litigation) be dismissed at the threshold., We have heard Mahek Maheshwari in support of the writ (Public Interest Litigation) as well as Shri Kunal Ravi Singh, learned Chief Standing Counsel for the State of Uttar Pradesh, and have perused the records. We have also gone through the order dated 26.05.2023 passed in Transfer Application (Civil) No. 88 of 2023 which throws some light upon the nature of the suits and the reliefs claimed therein, which are pending consideration in the Allahabad High Court. The suits are for declaration, injunction and right to worship at the site of Shri Krishna Janmasthan and also for removal of the structure alleged to be the Shahi Idgah Mosque. The pending suits involve issues relating to the interpretation of various facts of statutes, constitutional law, personal law and common law., Since the issues involved in the present writ (Public Interest Litigation) are already engaging the attention of the Allahabad High Court in appropriate proceedings (i.e., the pending suits), we are not inclined to entertain the instant writ (Public Interest Litigation) and the same is accordingly dismissed.
id_640	0	Date of decision: 20 September 2022. Manjeet Kaur and another, Petitioners, versus State of Punjab and others, Respondents. Present: Ms. Akshita Charak, Advocate; Mr. Sahil Goel, Advocate for the petitioners; Mr. Tarun Aggarwal, Senior Deputy Advocate General, Punjab., The present Criminal Writ Petition has been filed under Articles 226/227 of the Constitution of India for issuance of direction to respondent Nos. 2 and 3 to protect the life and liberty of the petitioners. Petitioner No. 1 is stated to be born on 13.07.2000 and reference has been made to Aadhaar card (Annexure P‑1). Petitioner No. 2 is stated to be born on 16.07.1995 and reference has been made to Aadhaar card (Annexure P‑2). It is stated that the petitioners are major and are in a live‑in relationship since petitioner No. 2 is already married to respondent No. 4 and no legal divorce has been taken by petitioner No. 2 from respondent No. 4, Kulwinder Kaur, who is wife of petitioner No. 2., Learned counsel for the petitioners has stated that a coordinate Bench of the High Court in judgment dated 18.05.2021 passed in CRWP‑45212021 titled as Pardeep Singh and another vs. State of Haryana and others has granted protection in a case where the petitioners were living in a live‑in relationship. Learned counsel has further relied upon an order passed by a coordinate Bench of the High Court dated 03.09.2021, passed in CRWP‑78742021 titled as Paramjit Kaur and another vs. State of Punjab and others as per which, although the divorce petition filed by petitioner No. 2 therein was dismissed, this Court had granted protection to the petitioners. Learned counsel has further submitted that the petitioners have given a representation dated 13.09.2022 (Annexure P‑3) to respondent Nos. 2 and 3 and they would be satisfied in case respondent No. 2 is directed to look into the said representation and, after considering threat perception to the petitioners, to take appropriate action., Notice of motion to respondents Nos. 1 to 3 only. On advance notice, Mr. Tarun Aggarwal, Senior Deputy Advocate General, Punjab, appears and accepts notice on behalf of respondents Nos. 1 to 3 and has stated that he has no objection in case respondent No. 2 is directed to look into the representation of the petitioners on the aspect of threat perception and to take appropriate action, in accordance with law., The High Court has heard learned counsel for the parties. In Pardeep Singh (supra), a coordinate Bench of this Court held as under: The Constitution of India is the supreme law of the land. Right to life and liberty is enshrined therein and is treated as a basic feature. The said right includes the right of an individual to full development of his/her potential in accordance with his/her choice and wish and, for such purpose, he/she is entitled to choose a partner of his/her choice. The individual also has the right to formalize the relationship with the partner through marriage or to adopt the non‑formal approach of a live‑in relationship. The concept of live‑in relationships has crept into our society from western nations and initially found acceptance in the metropolitan cities, probably because individuals felt that formalization of a relationship through marriage was not necessary for complete fulfillment. Education played a great role in development of this concept. Slowly, the concept has percolated into small towns and villages also as is evident from this petition. This shows that social acceptance for live‑in relationships is on the increase. In law, such a relationship is not prohibited nor does it amount to commission of any offence and thus, in my considered view such persons are entitled to equal protection of laws as any other citizen of the country. The law postulates that the life and liberty of every individual is precious and must be protected irrespective of individual views. Let us examine the issue from another viewpoint. The constitutional courts grant protection to couples who have married against the wishes of their respective parents. They seek protection of life and liberty from their parents and family members, who disapprove of the alliance. An identical situation exists where the couple has entered into a live‑in relationship. The only difference is that the relationship is not universally accepted. Would that make any difference? In my considered opinion, it would not. The couple fears for their safety from relatives in both situations and not from the society. They are thus entitled to the same relief. No citizen can be permitted to take law in his own hands in a country governed by rule of law., The petition is accordingly disposed of with direction to respondent No. 2 to consider the representation dated 9.5.2021 (Annexure P‑3) and to provide appropriate protection, if found necessary. It shall be ensured that no harm comes either to the lives or liberty of the petitioners. Thus, the High Court is of the view that even if the petitioners are living in a live‑in relationship, they are entitled to protection of life and liberty., With respect to the aspect of petitioner No. 2 not being legally divorced, it is relevant to refer to a judgment of the Division Bench of the High Court dated 03.09.2021 passed in LPA‑769‑2021 titled as Ishrat Bano and another vs. State of Punjab and others. Ishrat Bano (petitioner therein) had filed Criminal Writ Petition No. 7903 of 2021 which was dismissed by the learned Single Judge of the High Court. The relevant portion of the order passed by the learned Single Judge dated 01.09.2021 is reproduced hereinbelow: Prayer in this writ petition is for issuance of a direction to the official respondents to protect the life and liberty of the petitioners at the hands of respondents No. 5 to 9. Counsel for the petitioners has argued that the petitioners have performed the marriage and are apprehending threat to their life and liberty at the hands of respondents No. 5 to 9. It is further submitted that previously, petitioner No. 2 was married to one Alia Hasan and the marriage was annulled by way of divorce documents dated 26.07.2018, 27.08.2018 and 27.09.2018 i.e. vide three divorce deeds executed by petitioner No. 2 Aslam Khan himself. A perusal of these three divorce deeds reveals that these are one‑sided documents prepared by petitioner No. 2 and there are two common witnesses namely Shehnaz Ali and Feroz Khan. There is no signature of the first wife of petitioner No. 2 namely Alia Hasan, giving her consent to such divorce. Even otherwise, a perusal of these divorce deeds further reveals that the marriage of petitioner No. 2 was performed with Alia Hasan on 06.07.2013 and out of the said wedlock two daughters namely Sohalia Aslam and Amima Aslam were born, who are alive and residing with the first wife of petitioner No. 2 i.e. Alia Hasan. Counsel for the petitioners has further argued that after this one‑sided customary divorce, petitioner No. 2 has now performed marriage with petitioner No. 1 on 20.08.2021. The coordinate Bench while taking up this petition has directed the petitioners to inform the Court as to how much amount petitioner No. 2 is ready to give to his earlier wife to enable her to maintain herself. Despite taking two dates, no such proposal has come. The High Court cannot ignore the fact that the High Court, being legal guardian of the two minor girls, who are living at the mercy of their mother Alia Hasan, as petitioner No. 2 is not only claiming to have divorced his first wife Alia Hasan but he has also refused to maintain and take care of the upbringing of his two minor daughters aged four years and two years. On the face of it, the present petition is nothing but a ploy to seek a seal of the High Court regarding the lustful and adulterous life of petitioner No. 2 with petitioner No. 1 and the High Court cannot be a party to the same. The arguments of petitioner No. 2 that he has a right to perform second marriage under Muslim Law is misconceived as the High Court, instead of taking an academic view, is more concerned about the welfare of the two minor girls as it is clear that petitioner No. 2 has intentionally failed to maintain his first wife and two minor daughters. Accordingly, the present petition is dismissed with Rs.1,00,000/- costs to be paid to Alia Hasan., A perusal of above would show that since the High Court had primarily observed that the divorce documents were one‑sided documents, thus, prima facie it appeared that the divorce was not legal. The matter was taken up in appeal and the Division Bench of the High Court vide judgment dated 03.09.2021 passed in LPA‑769‑2021 titled as Ishrat Bano and another vs. State of Punjab and others held as under: The aspect which we are considering and dealing with is with regard to the threat to the life and liberty of the appellants as has been asserted by them. No doubt, in case a criminal case is registered against any of the parties, the law should take its own course, however, the life and liberty of any person who has approached the Court with such a grievance need to be taken care of and protection be provided as permissible in law. No person can be permitted or allowed to take law in his hands and therefore, keeping in view the said aspect, we dispose of the present appeal by observing that the Senior Superintendent of Police, Maler Kotla, shall take into consideration the representation dated 17.08.2021 (Annexure P‑5) submitted by the appellants and if some substance is found therein, take appropriate steps in accordance with law to ensure that the life and liberty is not jeopardized of the appellants at the hands of the private respondents. This direction shall not be construed in any manner to restrain the official respondents to proceed against the appellants in case there is some criminal case registered against them. The law shall take its own course and it shall be open to the authorities/investigating agency to proceed against the appellants, if required in law and in accordance thereto. In view of the above, the Division Bench without taking into consideration the issue as to whether the relationship between the parties was legal or not, granted the protection of life and liberty to the petitioners therein being of paramount. In view of the same, it goes without saying that protection of life and liberty is a basic feature of the Constitution of India. Every person, more so, a major, has the right to live his/her life with a person of his/her choice. At any rate, whenever the High Court, prima facie, is satisfied that on account of some relatives/persons being unhappy with the relationship between the petitioners, could cause harm to the life and liberty of the petitioners, then in such circumstances, the Courts are required to pass necessary directions for their protection., Keeping in view the aforesaid facts and circumstances and without commenting upon the legality of the relationship or expressing any opinion on merits of the case, the High Court deems it appropriate to dispose of the present petition with a direction to respondent No. 2 to consider the representation dated 13.09.2022 (Annexure P‑3) and to assess the threat perception to the petitioners and, after considering the same, respondent No. 2 shall take appropriate action in accordance with law. Accordingly, the present Criminal Writ Petition stands disposed of with aforesaid directions. It is, however, clarified that this order shall not debar the State from proceeding against the petitioners, if involved in any other case.
id_642	0	Petitioner: Suo Moto In re: Right to Decent and Dignified Last Rites/Cremation. Respondent: State of Uttar Pradesh through Additional Chief Secretary, Home and Others. Counsel for the petitioner: Abhinav Bhattacharya, Ajit Singh, Ashish Kumar Agarwal, Atul K. Singh, Atul Kumar Singh, Digvijay Singh Yadav, Jaideep Narain Mathur (Advocate), Onkar Singh, Pradeep Kumar Singh, Seema Kushwaha. Counsel for the respondent: Honourable Pankaj Mithal, Honourable Rajan Roy, Honourable Jaideep Narain Mathur, learned Senior Counsel along with Shri Abhinav Bhattacharya, learned amicus curiae; Shri S. V. Raju, learned Senior Counsel assisted by Ms. Sarica Raju, Shri Pranjal Krishna, Shri Venkatesh, Shri Guntur Promod Kumar, Advocates for the State; Shri V. K. Sahi, learned Senior Counsel along with Shri Manish Mishra and Shri Anurag Verma, Advocates for the State; Shri Luthra, learned Senior Counsel assisted by Shri Nitish Agarwal, Shri Ashok Kumar Shukla, Shri Shejan Hasmi and Shri Anmol Kheta, learned counsel appearing for the applicant seeking impleadment; Ms. Seema Kushwaha, learned counsel along with Shri Pradeep Kumar, Shri Sandeep, Shri Digvijay Singh, Advocates for the victim's family and Shri Anurag Kumar Singh, learned counsel; Shri Prashant Kumar, Additional Director General (Law and Order) and Special Secretary (Home), Government of Uttar Pradesh are present in compliance with our order dated 12 October 2020. Shri Vikrant Veer, erstwhile Superintendent of Police, Hathras, is also present., An application filed by the amicus curiae has been taken on record together with its annexures, including the order of the Supreme Court of India dated 27 October 2020 passed in Writ Petition (Criminal) No. 296 of 2020, Satyam Dubey and Others v. Union of India and Others. We have perused the order dated 27 October 2020. Relevant extracts are quoted below:, 10. Though the petitioners had sought and the respondent State also, through its affidavit, indicated that this Court can monitor the same, a Public Interest Litigation No. 16150 of 2020 has been registered in the Allahabad High Court, Lucknow Bench, suo moto pursuant to its order dated 1 October 2020. The High Court has adequately delved into aspects relating to the case to secure a fair investigation, has secured the presence of the father, mother, brother and sister‑in‑law of the victim, and has passed appropriate orders, including securing reports from various quarters. In that circumstance, we do not find it necessary to divest the High Court of the proceedings and take upon this Supreme Court of India to monitor the investigation. The incident occurred within the jurisdiction of that High Court and all particulars are available; therefore it would be appropriate for the High Court to proceed to monitor the investigation as it deems fit. The writ petitioners/applicants may seek to intervene before the High Court, subject to the High Court’s consideration., 13. On the aspect relating to the investigation, since we have indicated that the High Court would look into that aspect, the Central Bureau of Investigation shall report to the High Court as directed by the High Court from time to time. On the request of Ms. Indira Jaising, learned Senior Counsel, for the appointment of a Special Public Prosecutor, we see no need to pass any specific order. This aspect could be considered by the High Court in light of the provisions of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. In the circumstance wherein the family members of the victim have engaged Ms. Seema Kushwaha and Mr. Raj Ratan, Advocates, they would consider these aspects and make a request on behalf of the victim in accordance with law if such need arises.\n\n14. Therefore, without expressing any opinion on the merits of the rival contentions, all aspects of the matter are left open to be considered by the High Court in Public Interest Litigation No. 16150 of 2020 relating to the incident, the investigation to be conducted by the Central Bureau of Investigation, and the grievance alleging illegal cremation., 16. Before parting, we note the submission of the learned Solicitor General regarding the name and relationship of the family members with the victim as depicted in the order dated 12 October 2020 passed by the High Court in Public Interest Litigation No. 16150 of 2020. Since it is a requirement of law to avoid such disclosure, the High Court is requested to delete the same, to modify the digital records, and to avoid indication of such contents in the future., Let necessary impleadment of parties referred to in Clause (b) of the prayer clause of the said application be carried out by the Office in these proceedings, and notice of the same be given to the learned Assistant Solicitor General of India at Lucknow on behalf of the Union of India. The Central Bureau of Investigation is already represented through Shri Anurag Kumar Singh; therefore, a fresh notice need not be given to it. In furtherance of the orders of the Supreme Court of India dated 27 October 2020, the concerned officials of the Allahabad High Court are directed to delete the names of family members mentioned on page 1 of our order dated 12 October 2020 at serial numbers (1) to (5) under the heading “present” and to substitute the words “family members of victim”. The name of the deceased victim’s father occurring in the first line of paragraph 3 on page 3 shall also be deleted and after the words “the father of the deceased” the words “(hereinafter referred to as ‘F’)” shall be inserted. The name of the deceased victim’s brother mentioned as the second word in the third line of paragraph 3 on page 3 shall be deleted and after the words “his younger son” the words “(hereinafter referred to as ‘B2’)” shall be inserted. Further, on page 4 the name of the sister‑in‑law (bhabhi) of the victim mentioned as the first word of paragraph 3 shall be deleted and after the words “the bhabhi of the deceased” the words “(hereinafter referred to as ‘WB’)” shall be inserted. In paragraph 4 on page 3, after the words “mother of the deceased” the words “(hereinafter referred to as ‘M’)” shall be inserted. All actions necessary for carrying out these directions in compliance with the orders of the Supreme Court of India dated 27 October 2020 shall be taken by the concerned official/registry. If, for carrying out the aforesaid corrections, the copy of the order dated 12 October 2020 uploaded on the official website of the High Court or ‘elegalix’ is required to be deleted or removed, the same shall be done and the corrected order shall be re‑uploaded forthwith., The application filed by Shri Abhinav Bhattacharya, learned amicus curiae, is allowed in the aforesaid terms. Three affidavits have been filed on behalf of the State: one of the District Magistrate, Hathras; another of the then Superintendent of Police, Hathras; and a third on behalf of the State Government sworn by Shri Prakash Chandra Srivastava, Special Secretary (Home), Government of Uttar Pradesh. These documents are taken on record., Two applications have been filed by applicants who are accused in the criminal case under investigation by the Central Bureau of Investigation. One application, bearing No. 62038 of 2020, seeks impleadment of the applicants referred above as respondents in these proceedings. The other application, bearing No. 62039 of 2020, seeks appropriate directions restraining media houses and journalists from publishing any news, article or report in any manner whatsoever concerning matters that would be the subject matter of trial, and any statement prejudicing the applicants’ right to a fair trial., As regards the application seeking impleadment (No. 62038 of 2020), the scope of these proceedings after the Supreme Court of India’s order dated 27 October 2020 is two‑fold: firstly, monitoring of the Central Bureau of Investigation’s investigation into the alleged crime; secondly, the issue of illegal cremation of the deceased victim and all matters related thereto. The accused do not have a substantial right or locus at this stage of investigation concerning monitoring or the alleged illegal cremation. This proposition is accepted by Shri Luthra; consequently, they are not necessary parties to the proceedings. However, Shri Luthra pointed out that if at any stage an issue arises touching upon the rights of the accused or the scope of monitoring, they may be heard. Accordingly, we dispose of this application with the observation that the applicants shall have a right of hearing if any of their rights are adversely affected in these proceedings., As regards the other application (No. 62039 of 2020) seeking a restraint order against media houses and journalists, we have already, in our order dated 12 October 2020, requested the media as well as political parties to exercise restraint while expressing their views on the subject matter so as not to disturb social harmony or infringe upon the rights of the victim’s family and the accused. No one should indulge in character assassination of the victim, just as the accused should not be pronounced guilty before a fair trial. The investigating agency and the courts should be allowed to determine these issues. In continuation, we expect the media to be guided by the pronouncements of the Supreme Court of India in Siddharth Vashisht (alias Monu Sharma) v. State (NCT of Delhi) (paragraphs 297, 298, 301, 303) reported in (2010) 6 SCC 1; M. P. Lohia v. State of West Bengal and Another (paragraph 10) reported in (2005) 2 SCC 686; State of Maharashtra v. Rajendra Jawnmal Gandhi (paragraph 36) reported in (1997) 8 SCC 386; and other similar pronouncements. In our opinion these observations are sufficient for the moment, and no further directions are required unless a specific instance prejudicial to the rights of the victim’s family, the accused, or the pending investigation is brought to our notice, in which case we may take cognizance at the appropriate stage. The application is disposed of accordingly., Shri Vikrant Veer, erstwhile Superintendent of Police, Hathras, appeared before us today. We heard his version. He has also filed an affidavit which we have taken on record. He narrated what has already been stated in his affidavit, namely that he and the District Magistrate decided to cremate the victim’s body during the night., Shri S. V. Raju, learned Senior Counsel appearing for the State, gave an outline of the events on 29 September 2020 and the night of cremation. He informed us that the State Government had informed the Central Government about the Supreme Court of India’s order dated 27 October 2020 regarding provision of security for the victim’s family by the Central Reserve Police Force, and that the CRPF had taken over security of the victim’s family and witnesses. He also apprised us of the steps taken for providing compensation to the victim’s family and invited our attention to the relevant affidavits filed on behalf of the State. Shri Raju further informed us that the process of preparing a Standard Operating Procedure as ordered by this Court on 12 October 2020 is underway; a draft SOP has been prepared and shared with the amicus curiae and will be placed before the Court for consideration once finalized., During the arguments we asked Shri S. V. Raju whether it was fair and reasonable to allow the District Magistrate to continue at Hathras during the pendency of the investigation and these proceedings concerning illegal cremation, and whether it would be appropriate to shift him elsewhere to ensure fairness and transparency without any stigma. Shri Raju assured us that he will convey the matter to the State Government and report back by the next date., Ms. Seema Kushwaha, learned counsel appearing for the victim’s family, submitted that the family wanted to be shifted outside Uttar Pradesh to Delhi for security, as they were apprehensive once the court proceedings were over. She also apprised the Court of an alleged promise by the State Government to provide employment to one member of the victim’s family, which has not yet been fulfilled. Further, she stated that although part of the compensation had been received by the family, pressure was being exerted for its return in view of an alleged statement by some family members that the family did not want it. She referred to a letter of the District Magistrate but could not place it before us today. The learned Senior Counsel for the State refuted this contention, stating that no such move existed. Ms. Kushwaha has already filed an affidavit on behalf of the victim’s family on 23 October 2020 through e‑mode, which is on record., The Central Bureau of Investigation is directed to file a status report on the ongoing investigation before the next date, indicating approximately how much time is likely to be required to complete the investigation. Considering that, under the orders of the Supreme Court of India, the Central Reserve Police Force is required to provide security to the victim’s family and witnesses, the Office/Registry of this Court is directed to implead the Director General, Central Reserve Police Force, New Delhi as an opposite party in these suo moto proceedings and to serve notice of these proceedings upon the learned Assistant Solicitor General of India at Lucknow on his behalf. A responsible officer of the Central Reserve Police Force shall file an affidavit indicating the nature of security provided and measures taken for the victim’s family before the next date. Shri Abhinav Bhattacharya, learned amicus curiae, shall also communicate this order to the Assistant Solicitor General of India at Lucknow., The matter is listed for 25 November 2020 at 3:15 p.m., showing the names of counsel for the respective parties. The officers who are present need not appear again unless called upon.
id_643	0	Param Bir Singh (Petitioner) versus the State of Maharashtra and others (Respondents). Senior Advocate Mahesh Jethmalani, along with Ms. Sunnya Punamia and Ms. Kinnari Mehta, appears in behalf of the petitioner, assisted by Mr. Ajay Bhise. Senior Advocate Darius Khambata, along with Mr. Deepak Thakare, Chief Public Prosecutor, represents Respondents No. 1 to 3. Mr. S. B. Talekar, in behalf of Talekar and Associates, represents Respondent No. 4., The petitioner seeks the following reliefs: (a) issuance of a writ of mandamus or any other appropriate writ, order or direction directing Respondent No. 5, the Central Bureau of Investigation, to inquire into the alleged criminal conspiracy and malicious attempts to pressure the petitioner to withdraw his letter dated 20 March 2021 addressed to the Hon'ble Chief Minister of Respondent No. 1, inter alia by registering the impugned FIR No. 105 of 2021 against the petitioner through Respondent No. 2 Police Station at Akola and subsequently transferring it to Respondent No. 3 Police Station at Kalyan; (b) issuance of a writ of mandamus or any other appropriate writ, order or direction calling for the records that led to the issuance of the impugned FIR No. 105 of 2021 dated 29 April 2021 registered at Respondent No. 3 Police Station (originally registered as FIR No. 277 of 2021 at Akola Police Station), and on examination of those records, quash and set aside the impugned FIR; (c) alternatively, the Supreme Court of India may quash and set aside FIR No. 105 of 2021, which pertains to offences punishable under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Sections 109, 110, 111, 113, 500, 120B of the Indian Penal Code and Section 22 of the Maharashtra Police Act, 1951, pending investigation with Respondent No. 3, on the ground that it is manifestly arbitrary, wholly illegal and void ab initio, issued with sinister motives, vendetta, and oblique purposes to thwart the CBI investigation directed by this Court against Shri Anil Deshmukh, the then Hon'ble Home Minister of Maharashtra, and to pressure the petitioner to withdraw his letter dated 20 March 2021; (d) pending the hearing and final disposal of the application, the Hon'ble Supreme Court of India may: (i) stay all actions and consequent proceedings in the impugned FIR No. 105 of 2021 which is pending investigation with Respondent No. 3, and (ii) restrain Respondent No. 3 from taking any coercive steps against the petitioner in connection with the FIR., The writ petition was listed before Justice S. S. Shinde on 6 May 2021, when liberty was granted to the petitioner to raise the matter before the Vacation Bench of the Supreme Court of India. The Vacation Bench was convened on 13 May 2021 (Coram: Justice Prasanna B. Varale and Justice N. R. Borkar), and the following order was passed:, The bench heard Mr. Mahesh Jethmalani, learned Senior Advocate for the petitioner, Mr. Darius Khambata, learned Senior Advocate appearing for Respondents Nos. 1 to 3 (the State of Maharashtra), and Mr. Anil Singh, learned Additional Solicitor General appearing for Respondent No. 5., Mr. Khambata submitted that a compilation of documents had been served on him that day and requested time to review the compilation and to file a reply to the petition. Mr. Jethmalani submitted that the petitioner feared an arrest and therefore sought protection. On instructions, Mr. Khambata assured that no arrest of the petitioner would be effected until 21 May 2021 and that the petition would be posted for consideration on 21 May 2021. Accordingly, the petition was posted for consideration on 21 May 2021., The bench had sixty matters on its docket that day, including the present writ petition and Writ Petition No. 1903 of 2021, which was filed by the State of Maharashtra against the Central Bureau of Investigation and was also part‑heard., The bench called the writ petition in the afternoon and suggested that the State Government could continue the statement made before the Supreme Court of India on 13 May 2021 for two more days, up to 24 May 2021, to allow the learned judges hearing criminal matters from 24 May 2021 to commence hearing this matter. The State of Maharashtra declined the suggestion. Consequently, the hearing was commenced at approximately 10:12 p.m. The bench heard Mr. Mahesh Jethmalani, Senior Advocate for the petitioner, and Mr. Darius Khambata, Senior Advocate for the State of Maharashtra, until 11:55 p.m. Since the Vacation Bench would cease at midnight, the Registry was directed to seek appropriate orders from the Hon'ble Chief Justice regarding this part‑heard matter and to communicate the order to the bench and the parties on 24 May 2021 at 10:30 a.m. The State of Maharashtra was directed not to arrest the petitioner, Mr. Param Bir Singh, until 24 May 2021., The matter was stood over to 24 May 2021 at 10:30 a.m.
id_645	0	The hijab's history is a complex one, influenced by the intersection of religion and culture over time. While some women veil themselves because of pressure put on them by society, others do so by choice for many reasons. The veil appears on the surface to be a simple thing, but that simplicity is deceiving, as the hijab represents the beliefs and practices of those who wear it or choose not to, and the understandings and misunderstandings of those who observe it being worn. Its complexity lies behind the veil., Three cases, namely W.P. No. 2347/2022, W.P. No. 2146/2022 and W.P. No. 2880/2022, were referred by Justice Krishna S. Dixit vide order dated 09 February 2022 to consider whether a larger Bench could be constituted to hear them. The Reference Order observed that all these matters essentially relate to the proscription of hijab (headscarf) while prescribing the uniform for students who profess the Islamic faith. The recent Government Order dated 05 February 2022, which arguably facilitates enforcement of this rule, is also put in challenge. Whether wearing of hijab is a part of essential religious practice in Islam is the pivotal question of all these matters. This question, along with other issues, needs to be answered in the light of constitutional guarantees availing to religious minorities. The Supreme Court of India, after hearing the matter for some time, is of the considered opinion that, given the enormous public importance of the questions involved, the batch of these cases may be heard by a Larger Bench, if the Chief Justice so decides in discretion. Accordingly, the Registry is directed to place the papers immediately in the hands of the Chief Justice for consideration. The Special Bench was constituted on the same day vide Notification dated 09 February 2022 to hear these petitions, to which other companion cases also joined., In Writ Petition No. 2347/2022, filed by a girl student on 31 January 2022, the first, third and fourth respondents are the State Government and its officials, and the second respondent is the Government Pre‑University College for Girls, Udupi. The prayer is for a direction to the respondents to permit the petitioner to wear hijab (headscarf) in the classroom, since wearing it is a part of essential religious practice of Islam. In Writ Petition No. 2146/2022, filed by a girl student on 29 January 2022, the respondents are the same. The prayer seeks a writ of mandamus ordering the respondents to initiate enquiry against the college and its principal for violating the instruction enumerated under Chapter 6 of the Guidelines of the Pre‑University Department for the academic year 2021‑22, to conduct enquiry against respondents 6 to 14 for their hostile approach towards the petitioners, to examine the authority under which respondents 15 and 16 are interfering in the administration of the college and promoting a political agenda, and to declare that the status quo referred to in the letter dated 25 January 2022 is consistent with the Department guidelines for the academic year 2021‑22. In Writ Petition Nos. 2880/2022, 3038/2022 and 4309/2022, petitioner girl students challenge the Government Order dated 05 February 2022, which purportedly issued under Section 133 read with Sections 7(2) and (5) of the Karnataka Education Act, 1983, providing that students should compulsorily adhere to the dress code/uniform as follows: (a) in government schools, as prescribed by the government; (b) in private schools, as prescribed by the school management; (c) in Pre‑University colleges that come within the jurisdiction of the Department of Pre‑University Education, as prescribed by the College Development Committee or College Supervision Committee; and (d) wherever no dress code is prescribed, attire that accords with equality and integrity and does not disrupt public order., In Writ Petition No. 3424/2022 (GM‑RES‑PIL), filed on 14 February 2022, petitioner Dr. Vinod Kulkarni, a consulting neuro‑psychiatrist, advocate and social activist, seeks a direction to declare that all students of various schools and colleges in Karnataka and the country shall attend their institutions wearing the stipulated uniform, and also seeks permission for female Muslim students to wear hijab provided they also wear the stipulated school uniform. In Writ Petition No. 4338/2022 (GM‑RESPIL), filed on 25 February 2022, petitioner Mr. Ghanasham Upadhyay seeks a thorough investigation by the Central Bureau of Investigation or National Investigation Agency into the nationwide agitation after the issuance of the Government Order dated 05 February 2022, to ascertain the involvement of radical organisations such as Popular Front of India, Students Islamic Organisation of India, Campus Front of India and Jamaat‑e‑Islami, and to hold that wearing of hijab, burqa or similar costumes by Muslims, and sporting a beard, is not an integral part of essential religious practice of Islam and therefore the prescription of dress code is permissible., The State and its officials are represented by the learned Advocate General. The respondent colleges and other respondents are represented by their respective advocates. The State filed a Statement of Objections on 10 February 2022; other respondents have filed their Statements of Objections, and some petitioners have filed rejoinders. The respondents resist the writ petitions, justifying the impugned order., Petitioner students profess and practice the Islamic faith. Wearing of hijab (headscarf) is an essential religious practice in Islam, being a Quranic injunction. Neither the State Government nor the schools can prescribe a dress code or uniform that does not permit the students to wear hijab. The action of the respondent schools in insisting upon the removal of hijab in educational institutions is impermissible, as it violates the fundamental right guaranteed under Article 25 of the Constitution of India. The impugned Government Order dated 05 February 2022 is structured with a wrong narrative that wearing of hijab is not a part of essential religious practice of Islam and therefore prescribing a dress code is violative of the fundamental right to freedom of conscience and the right to practice religion guaranteed under Article 25. Personal appearance or choice of dressing is a protected zone within the freedom of expression. What one wears is a matter of individual choice protected under privacy jurisprudence, and the action of the schools that do not permit hijab is repugnant to the fundamental rights guaranteed under Articles 19(1)(a) and 21. The action of the State and the schools suffers from violation of the doctrine of proportionality, as the extreme step of banning hijab has not explored less restrictive alternatives. The Government Order suffers from manifest arbitrariness and a gross non‑application of mind, being founded on a wrong legal premise contrary to the ratio decidendi of the Apex Court in Shyara Bano v. Union of India, where the Court held that wearing hijab is part of essential religious practice., The Government Order is the result of acting under dictation and is vitiated on this ground of administrative law. The Karnataka Education Act, 1983, and the Rules promulgated thereunder do not authorize prescription of any dress code or uniform. Prescribing a dress code in a school is a matter of police power which does not avail to the government or schools in the absence of statutory enablement. Rule 11 of the Karnataka Educational Institutions (Classification, Regulation and Prescription of Curriculum, etc.) Rules, 1995, to the extent it provides for prescription of uniform, is incompetent. The College Betterment (Development) Committee constituted under Government Circular dated 31 January 2014 is an extra‑legal authority, and its prescription of dress code for students is without jurisdiction. The prospectus issued by the Education Department prohibits prescription of any uniform. The composition of the Committee, which includes a local Member of Legislative Assembly as President, would unjustifiably politicise the educational environment., The ground of public order on which the Government Order is founded is unintelligible; it is construed with reference to public disorder, and if wearing hijab disrupts public order, the State should act against those responsible for disruption, not ban hijab. Proscribing hijab in educational institutions offends women's autonomy and is violative of Article 14 as gender‑based discrimination, and also violates the right to education. The government and schools should promote plurality, not uniformity, consistent with the constitutional spirit of diversity and inclusiveness., The action of the State and school authorities is in derogation of international conventions that provide for protective discrimination of women's rights, such as the UN Convention on the Rights of the Child (1989). For a holistic view of reasonable accommodation as facets of substantive equality, the petitioners refer to decisions of foreign jurisdictions in addition to native ones., The respondents contend that the petition lacks material particulars regarding the practice of wearing hijab, that the Quran does not contain any injunction to wear hijab, and that the Supreme Court has held that hijab is a cultural practice, not a religious one. They argue that the power to prescribe school uniform is inherent in the concept of school education and is provided for in the 1983 Act and the 1995 Curricula Rules, and that the prospectus issued by the Education Department lacks authenticity. They maintain that the Government Order dated 05 February 2022 is compliant with the scheme of the 1983 Act, which aims to cultivate a scientific and secular outlook through education, and that the order merely authorises institutions to prescribe dress code on their own., The Court has framed the following questions for consideration: (1) Whether wearing hijab or head‑scarf is a part of essential religious practice in the Islamic faith protected under Article 25 of the Constitution? (2) Whether prescription of school uniform is not legally permissible, being violative of fundamental rights guaranteed under Articles 19(1)(a) and 21? (3) Whether the Government Order dated 05 February 2022 is incompetent, arbitrary and violates Articles 14 and 15 of the Constitution? (4) Whether any case is made out in W.P. No. 2146/2022 for issuance of a direction for initiating disciplinary enquiry against respondents 6 to 14 and for issuance of a writ of quo warranto against respondents 15 and 16? The submissions of both sides emphasize secularism, freedom of conscience and right to religion, and the Court will treat them in a structured way, including adjudicating the validity of the Government Order, which purports to give effect to constitutional secularism., India, that is Bharat, has been a sanctuary for several religions, faiths and cultures that have co‑existed for centuries. Chief Justice S.R. Das, in In Re: Kerala Education Bill, observed that India has welcomed peoples of diverse creeds, cultures and races. The Supreme Court has described India as the world’s most heterogeneous society. The 42nd Amendment (1976) introduced the word ‘secular’ to the Preamble, and secularism has been a basic feature of the polity even before this amendment. Indian secularism is not the same as the separation of church and state envisaged under the American Constitution; it guarantees freedom of conscience and religion, as reflected in Articles 27 and 28. The Supreme Court in Indira Nehru Gandhi v. Raj Narain explained that the State shall have no religion of its own and all persons shall be equally entitled to freedom of conscience and the right to profess, practise and propagate religion. Article 51A(e) imposes a fundamental duty on every citizen to promote harmony and renounce practices derogatory to the dignity of women. This duty finds expression in Section 7(2)(v) and (vi) of the Karnataka Education Act, 1983, which empowers the State to prescribe curricula that inculcate this sense of duty.
id_645	1	It is relevant to mention that unlike Article 29, this article does not mention culture as such, which arguably may share a common border with religion. We shall be touching the cultural aspect of hijab later., The introduction of the word conscience was at the instance of Dr. B.R. Ambedkar, who in his wisdom could visualize persons who do not profess any religion or faith, like Charvakas, atheists and agnostics., Professor Upendra Baxi on page 149 says: Under assemblage of human rights, individual human beings may choose atheism or agnosticism, or they may make choices to belong to fundamental faith communities. Conscientious practices of freedom of conscience enable exit through conversion from traditions of religion acquired initially by the accident of birth or by the revision of choice of faith, which may thus never be made irrevocably once for all., Bijo Emmanuel, supra, operationalized the freedom of conscience intricately mixed with a great measure of right to religion., An acclaimed jurist Dr. Durga Das Basu in his Commentary on the Constitution of India, 8th Edition at page 3459 writes: It is next to be noted that the expression freedom of conscience stands in juxtaposition to the words right freely to profess, practise and propagate religion. If these two parts of Article 25(1) are read together, it would appear, by the expression freedom of conscience reference is made to the mental process of belief or non‑belief, while profession, practice and propagation refer to external action in pursuance of the mental idea or concept of the person. It is also to be noted that the freedom of conscience or belief is, by its nature, absolute; it would become subject to State regulation in India as in the United States of America as soon as it is externalized i.e., when such belief is reflected into action which must necessarily affect other people., (ii) There is no definition of religion or conscience in our constitution. What the American Supreme Court in Davis v. Beason observed assumes relevance: the term religion has reference to one's views of his relation to his Creator and to the obligation they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter., Will Durant, a great American historian (1885‑1981) in his Magnum Opus The Heritage at pages 68‑69 writes: The priest did not create religion, he merely used it, as a statesman uses the impulses and customs of mankind; religion arises not out of sacerdotal invention or chicanery, but out of the persistent wonder, fear, insecurity, hopefulness and loneliness of men. The priest did harm by tolerating superstition and monopolizing certain forms of knowledge. Religion supports morality by two means chiefly: myth and taboo. Myth creates the supernatural creed through which celestial sanctions may be given to forms of conduct socially desirable; heavenly hopes and terrors inspire the individual to put up with restraints placed upon him by his masters and his group. Man is not naturally obedient, gentle, or chaste; and next to that ancient compulsion which finally generates conscience, nothing so quietly and continuously conduces to the uncongenial virtues as the fear of the gods., Aiyar J. quoted the following observations of Leatham C.J: It would be difficult, if not impossible, to devise a definition of religion which would satisfy the adherents of all the many and various religions which exist, or have existed, in the world. There are those who regard religion as consisting principally in a system of beliefs or statement of doctrine. So viewed religion may be either true or false. Others are more inclined to regard religion as prescribing a code of conduct. So viewed a religion may be good or bad. There are others who pay greater attention to religion as involving some prescribed form of ritual or religious observance. Many religious conflicts have been concerned with matters of ritual and observance., In Shirur Mutt, supra, religion has been given the widest possible meaning. The English word religion has different shades and colours. It does not fully convey the Indian concept of religion i.e., dharma which has a very wide meaning, one being moral values or ethics on which life is naturally regulated. The Supreme Court of India referring to the aforesaid foreign decision observed: We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon article 44(2) of the Constitution of Eire and we have great doubt whether a definition of \religion\ as given above could have been in the minds of our Constitution‑makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well‑known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well‑being, but it would not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress., (iii) It is relevant to quote what Bertrand Russell wrote: Religion is a complex phenomenon, having both an individual and a social aspect throughout history; increase of civilisation has been correlated with decrease of religiosity. The free exercise of religion under Article 25 is subject to restrictions imposed by the State on the grounds of public order, morality and health. Further it is made subordinate to other provisions of Part III. Article 25(2)(a) reserves the power of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice. Article 25(2)(b) empowers the State to legislate for social welfare and reform even though by so doing, it might interfere with religious practice., H.M. Seervai at paragraph 11.35, page 1274, states: It has been rightly held by Justice Venkatarama Aiyar for a very strong Constitution Bench that Article 25(2) which provides for social and economic reform is, on a plain reading, not limited to individual rights. So, by an express provision, the freedom of religion does not exclude social and economic reform although the scope of social reform would require to be defined. This apart, Article 25(1) deals with rights of individuals whereas Article 25(2) is much wider in its content and has reference to communities. This Article, it is significant to note, begins with the expression \Subject to\. Limitations imposed on religious practices on the ground of public order, morality and health having already been saved by the opening words of Article 25(1), the saving would cover beliefs and practices even though considered essential or vital by those professing the religion. The text and context of this Article juxtaposed with other unmistakably show that the freedom guaranteed by this provision in terms of sanctity, are placed on comparatively a lower pedestal by the Makers of our Constitution qua other Fundamental Rights conferred in Part III. This broad view draws support from a catena of decisions of the Supreme Court of India., The First Amendment to the US Constitution confers freedoms in absolute terms and the freedoms granted are the rule and restrictions on those freedoms are the exceptions evolved by their courts. However, the Makers of our Constitution in their wisdom markedly differed from this view. Article 25 of our Constitution begins with the restriction and further incorporates a specific provision i.e., clause (2) that in so many words saves the power of State to regulate or restrict these freedoms. Justice Douglas of the US Supreme Court about the absence of a corresponding provision in their Constitution, saying: If we had a provision in our Constitution for reasonable regulation of the press such as India has included in hers, there would be room for argument that censorship in the interest of morality would be permissible., In a similar context, Chief Justice Hidayatullah observed: The American Constitution stated the guarantee in absolute terms without any qualification. The judges try to give full effect to the guarantee by every argument they can validly use. But the strongest proponent of the freedom (Justice Douglas) himself recognised in the Kingsley case that there must be a vital difference in approach. In spite of the absence of such a provision judges in America have tried to read the words 'reasonable restrictions' into the First Amendment and thus to make the rights it grants subject to reasonable regulation. Succinctly put, in the United States and Australia, the freedom of religion was declared in absolute terms and courts had to evolve exceptions to that freedom, whereas in India, Articles 25 and 26 of the Constitution appreciably embody the limits of that freedom., Association, supra at paragraphs 209 & 210 about the scope and content of freedom of religion is illuminating: Yet, the right to the freedom of religion is not absolute. For the Constitution has expressly made it subject to public order, morality and health on one hand and to the other provisions of Part III, on the other. The subjection of the individual right to the freedom of religion to the other provisions of the Part is a nuanced departure from the position occupied by the other rights to freedom recognized in Articles 14, 15, 19 and 21. While guaranteeing equality and the equal protection of laws in Article 14 and its emanation, in Article 15, which prohibits discrimination on grounds of religion, race, caste, sex or place of birth, the Constitution does not condition these basic norms of equality to the other provisions of Part III. Similar is the case with the freedoms guaranteed by Article 19(1) or the right to life under Article 21. The subjection of the individual right to the freedom of religion under Article 25(1) to the other provisions of Part III was not a matter without substantive content. Evidently, in the constitutional order of priorities, the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III., Clause (2) of Article 25 protects laws which existed at the adoption of the Constitution and the power of the State to enact laws in future, dealing with two categories. The first of those categories consists of laws regulating or restricting economic, financial, political or other secular activities which may be associated with religious practices. Thus, in sub‑clause (a) of Article 25(2), the Constitution has segregated matters of religious practice from secular activities, including those of an economic, financial or political nature. The expression other secular activity which follows upon the expression economic, financial, political indicates that matters of a secular nature may be regulated or restricted by law. The fact that these secular activities are associated with, or, in other words, carried out in conjunction with religious practice, would not put them beyond the pale of legislative regulation. The second category consists of laws providing for (i) social welfare and reform; or (ii) throwing open Hindu religious institutions of a public character to all classes and sections of Hindus. The expression social welfare and reform is not confined to matters only of the Hindu religion. However, in matters of temple entry, the Constitution recognised the disabilities which Hindu religion had imposed over the centuries which restricted the rights of access to Dalits and to various groups within Hindu society. The effect of clause (2) of Article 25 is to protect the ability of the State to enact laws, and to save existing laws on matters governed by sub‑clauses (a) and (b). Clause (2) of Article 25 is clarificatory of the regulatory power of the State over matters of public order, morality and health which already stand recognised in clause (1). Clause 1 makes the right conferred subject to public order, morality and health. Clause 2 does not circumscribe the ambit of the subject to public order, morality or health stipulation in clause 1. What clause 2 indicates is that the authority of the State to enact laws on the categories is not trammelled by Article 25., (i) Since the question of hijab being a part of essential religious practice is the bone of contention, it becomes necessary to briefly state as to what is an essential religious practice in Indian context and how it is to be ascertained. This doctrine can plausibly be traced to the Chief Architect of our Constitution, Dr. B.R. Ambedkar and to his famous statement in the Constituent Assembly during debates on the Codification of Hindu Law: the religious conception in this country are so vast that they cover every aspect of life from birth to death there is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious., It has been observed at paragraph 9 as under: The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background, etc. of the given religion. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts which are protected by the Constitution. Nobody can say that an essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the core of religion whereupon the belief is based and religion is founded upon. They could only be treated as mere embellishments to the non‑essential part or practices., The development of law relating to essential religious practice and the extent of its constitutional patronage consistent with the long standing view. Ordinarily, a religious practice in order to be called an essential religious practice should have the following indicia: (i) Not every activity associated with the religion is essential to such religion. Practice should be fundamental to religion and it should be from time immemorial. (ii) Foundation of the practice must precede the religion itself or should be co‑founded at the origin of the religion. (iii) Such practice must form the cornerstone of religion itself. If that practice is not observed or followed, it would result in the change of religion itself and, (iv) Such practice must be binding nature of the religion itself and it must be compelling. That a practice claimed to be essential to the religion has been carried on since time immemorial or is grounded in religious texts per se does not lend to it the constitutional protection unless it passes the test of essentiality as is adjudged by the Courts in their role as the guardians of the Constitution., (i) March of law regarding essential religious practice: Law is an organic social institution and not just a black letter section. In order to be living law of the people, it marches with the ebb and flow of the times, either through legislative action or judicial process. Constitution being the Fundamental Law of the Land has to be purposively construed to meet and cover changing conditions of social & economic life that would have been unfamiliar to its Framers. Since Shayara Bano, there has been a paradigm shift in the approach to the concept of essential religious practice, as rightly pointed by the learned Advocate General. In Indian further when the Supreme Court of India added another dimension to the concept of essential religious practice, by observing at paragraphs 289 & 291 as under: For decades, this Court has witnessed claims resting on the essentiality of a practice that militate against the constitutional protection of dignity and individual freedom under the Constitution. It is the duty of the courts to ensure that what is protected is in conformity with fundamental constitutional values and guarantees and accords with constitutional morality. While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution. Together, these three values combine to define a constitutional order of priorities. Practices or beliefs which detract from these foundational values cannot claim legitimacy., Our Constitution places the individual at the heart of the discourse on rights. In a constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and the dignity of every individual enjoins upon the Court a duty to resolve the inherent tensions between the constitutional guarantee of religious freedom afforded to religious denominations and constitutional guarantees of dignity and equality afforded to individuals. There are a multiplicity of intersecting constitutional values and interests involved in determining the essentiality of religious practices. In order to achieve a balance between competing rights and interests, the test of essentiality is infused with these necessary limitations. Thus, a person who seeks refuge under the umbrella of Article 25 of the Constitution has to demonstrate not only essential religious practice but also its engagement with the constitutional values that are illustratively mentioned at paragraph 291 of the said decision. It is a matter of concurrent requirement. It hardly needs to be stated, if essential religious practice as a threshold requirement is not satisfied, the case does not travel to the domain of those constitutional values., The above having been said, now we need to concisely discuss about the authentic sources of Islamic law inasmuch as Quran and Ahadith are cited by both the sides in support of their argument & counter argument relating to wearing of hijab. At this juncture, we cannot resist our feel to reproduce Ayat 242 of the Quran which says: \It is expected that you will use your commonsense\. The Supreme Court of India in Shah Bano, supra at sections 33, 34 & 35 lucidly states: 33. Sources of Mahomedan Law: There are four sources of Mahomedan law, namely, (1) the Koran; (2) Hadis, that is, precepts, actions and sayings of the Prophet Muhammad, not written down during his lifetime, but preserved by tradition and handed down by authorized persons; (3) Ijma, that is, a concurrence of opinion of the companions of Muhammad and his disciples; and (4) Qiyas, being analogical deductions derived from a comparison of the first three sources when they did not apply to the particular case. 34. Interpretation of the Koran: The Courts, in administering Mahomedan law, should not, as a rule, attempt to put their own construction on the Koran in opposition to the express ruling of Mahomedan commentators of great antiquity and high authority. 35. Precepts of the Prophet: Neither the ancient texts nor the precepts of the Prophet Muhammad should be taken literally so as to deduce from them new rules of law, especially when such proposed rules do not conduce to substantial justice., (ii) Fyzee Treatise: Referring to another Islamic jurist of great repute Asaf A.A. Fyzee, what the Supreme Court of India at paragraphs 7 & 54 in Shayara Bano, supra, observed evokes interest: There are four sources for Islamic law- (i) Qur'an (ii) Hadith (iii) Ijma (iv) Qiyas. The learned author has rightly said that the Holy Quran is the first source of law. According to the learned author, pre‑eminence is to be given to the Quran. That means, sources other than the Holy Quran are only to supplement what is given in it and to supply what is not provided for. In other words, there cannot be any Hadith, Ijma or Qiyas against what is expressly stated in the Quran. Islam cannot be anti‑Quran., Indeed, Islam divides all human action into five kinds, as has been stated by Hidayatullah, J. in his Introduction to Mulla (supra). There it is stated: Degrees of obedience: Islam divides all actions into five kinds which figure differently in the sight of God and in respect of which His Commands are different. (i) First degree: Fard. Whatever is commanded in the Quran, Hadith or Ijma must be obeyed. (ii) Second degree: Masnun, Mandub and Mustahab: These are recommended actions. (iii) Third degree: Jāiz or Mubah: These are permissible actions as to which religion is indifferent. (iv) Fourth degree: Makruh: That which is reprobated as unworthy. (v) Fifth degree: Haram: That which is forbidden. The Supreme Court of India at paragraph 55 of Shayara Bano has treated the structural hierarchy of binding nature of Islamic norms starting from Quran and ending with Haram, while proscribing the obnoxious practice of triple talaq. The argument of hijab being mandatory under Ahadith, if not under Quran, shall be treated hereinafter, in the light of such a structure., At the outset we make it clear that, in these cases, our inquiry concerns the nature and practice of wearing of hijab amongst Muslim women and therefore, references to the Holy Quran and other sources of Islamic law shall be confined to the same. During the course of hearing, the versions of different authors on this scripture were cited, viz., Abdullah Yusuf Ali, Abdul Haleem, Pickthall, Muhammad Hijab, Dr. Mustafa Khattab, Muhammad Taqi‑ud‑Din al‑Hilali, Muhammad Muhsin Khan, Dr. Ghali. However, this Court prefers to bank upon The Holy Quran: Text, Translation and Commentary by Abdullah Yusuf Ali (published by Goodword Books; 2019 reprint), there being a broad unanimity at the Bar as to its authenticity and reliability. The speculative and generalizing mind of this author views the verses of the scriptures in their proper perspective. He provides the unifying principles that underlie. His monumental work has a systematic completeness and perfection of form. It is pertinent to reproduce Abdullah Yusuf Ali’s Preface to First Edition of his book, which is as under: In translating the Text I have aired no views of my own, but followed the received commentators. Where they differed among themselves, I have had to choose what appeared to me to be the most reasonable opinion from all points of view. Where it is a question merely of words, I have not considered the question important enough to discuss in the Notes, but where it is a question of substance, I hope adequate explanations will be found in the notes. Where I have departed from the literal translation in order to express the spirit of the original better in English, I have explained the literal meaning in the Notes. Let me explain the scope of the Notes. I have made them as short as possible consistently with the object I have in view, viz., to give to the English reader, scholar as well as general reader, a fairly complete but concise view of what I understand to be the meaning of the Text., There is yet another reason as to why we place our reliance on the commentary of Mr. Abdullah Yusuf Ali. The Supreme Court of India itself in a catena of cases has treated the same as the authoritative work. In Shayara Bano, we find the following observations at paragraphs 17 & 18: 17. Muslims believe that the Quran was revealed by God to the Prophet Muhammad over a period of about 23 years, beginning from 22 December 609, when Muhammad was 40 years old. The revelation continued up to the year 632 the year of his death. Shortly after Muhammad’s death, the Quran was completed by his companions, who had either written it down, or had memorized parts of it. These compilations had differences of perception. Therefore, Caliph Usman – the third, in the line of caliphs recorded a standard version of the Quran, now known as Usman’s codex. This codex is generally treated as the original rendering of the Quran. 18. During the course of hearing, references to the Quran were made from The Holy Quran: Text Translation and Commentary by Abdullah Yusuf Ali (published by Kitab Bhawan, New Delhi, 14th edition, 2016). Learned counsel representing the rival parties commended, that the text and translation in this book, being the most reliable, could safely be relied upon. The text and the inferences are therefore drawn from the above publication. The Quran is divided into suras (chapters). Each sura contains verses, which are arranged in sections. The above apart, none at the Bar has disputed the profound scholarship of this writer or the authenticity of his commentary., Learned advocates appearing for the petitioners vehemently argued that the Quran injuncts Muslim women to wear hijab whilst in public gaze. In support, they heavily banked upon certain suras from Abdullah Yusuf Ali’s book. Before we reproduce the relevant suras and verses, we feel it appropriate to quote what the Prophet had appreciably said at sura verse 256 in Holy Quran: Let there be no compulsion in religion. What Mr. Abdullah Yusuf Ali in footnote 300 to this verse, appreciably reasons out, is again worth quoting: Compulsion is incompatible with religion because religion depends upon faith and will, and these would be meaningless if induced by force. With this at heart, we are reproducing the following verses from the scripture, which were pressed into service at the Bar. Sura xxiv (Nr): The environmental and social influences which most frequently wreck our spiritual ideals have to do with sex, and especially with its misuse, whether in the form of unregulated behavior, of false charges or scandals, or breach of the refined conventions of personal or domestic privacy. Our complete conquest of all pitfalls in such matters enables us to rise to the higher regions of Light and of God‑created Nature, about which a mystic doctrine is suggested. This subject is continued in the next Sura. Privacy should be respected, and the utmost decorum should be observed in dress and manners (xxiv.27‑34, and C.158). Domestic manners and manners in public or collective life all contribute to the highest virtues, and are part of our spiritual duties leading up to God (xxiv.58‑64, and C.160). And say to the believing women that they should lower their gaze and guard.
id_645	2	The modesty of women is prescribed: they should not display their beauty and ornaments except what ordinarily appears thereof; they should draw their veils over their bosoms and not display their beauty except to their husband, their father, their husband's father, their sons, their husband's sons, their brothers or their brothers' sons, their sisters' sons, their women, the slaves whom their right hands possess, male servants free from physical needs, or small children who have no sense of the shame of sex; they should strike their feet in order to draw attention to their hidden ornaments. And O believers, turn together towards God that you may attain bliss., Prophet, tell your wives and daughters, and the believing women, that they should cover their outer garments over their persons when abroad; that this is most convenient, that they should be known as such and not be molested. And God is Oft-Forgiving, Most Merciful., Is hijab Islam‑specific? Hijab is a veil ordinarily worn by Muslim women. Its origin is the Arabic verb hajaba, which is etymologically similar to the verb ‘to hide’. Hijab roughly translates to partition, screen or curtain. There are numerous dimensions of understanding the usage of the hijab: visual, spatial, ethical and moral. In this way, the hijab hides, marks the difference, protects, and arguably affirms the religious identity of Muslim women. This word is not employed in the Qur’an, although commentators may have employed it., Indian jurist Abdullah Yusuf Ali referring to Surah (xxxiii), verse 59, at footnote 3765, defines jilbab, plural jalabib: an outer garment; a long gown covering the whole body, or a cloak covering the neck as bosom. In footnote 3760 to verse 53, he states that for Muslim women generally, no screen or hijab (purdah) is mentioned, but only a veil to cover the bosom and modesty in dress. The screen was a special feature of honour for the Prophet’s household, introduced about five or six years before his death. In footnote 3767 to verse 59 of the same sura, he opines that the rule was not absolute: if for any reason it could not be observed, God is Oft‑Returning, Most Merciful., The Holy Qur’an does not mandate wearing of hijab or headgear for Muslim women. Whatever is stated in the suras is only directory, because there is an absence of prescription of penalty or penance for not wearing hijab; the linguistic structure of the verses supports this view. This apparel at most is a means to gain access to public places and not a religious end in itself. It was a measure of women’s enablement and not a figurative constraint., Yusuf Ali’s footnotes 2984, 2985 and 2987 to Surah xxiv (N r) state: 2984 – The need for modesty is the same for both men and women, but because of the differentiation of the sexes in nature, temperament and social life, a greater amount of privacy is required for women, especially in dress and uncovering of the bosom. 2985 – Zinat means both natural beauty and artificial ornaments; the woman is asked not to display her figure or appear in undress except to (1) her husband, (2) her near relatives living in the same house, (3) her women, i.e., her maid‑servants, some commentators include all believing women, (4) slaves, male and female, (5) old or infirm male servants, and (6) infants or small children before they develop a sense of sex. 2987 – While these details of purity and good domestic form are highlighted, the chief object is spiritual welfare. Life on earth is a probation, and one must make individual, domestic and social life contribute to holiness to attain real success and bliss. Mystics understand the rules of decorum as typifying spiritual truths; the soul, like a modest maiden, does not let its eyes stray from the One True God, and beauty is not for vulgar show but for God., Footnotes 3764 and 3765 to Surah xxxiii (Ahz b) state: 3764 – This applies to all Muslim women, including the Prophet’s household, who were asked to cover themselves with outer garments when walking abroad during times of insecurity; they were never meant to be confined to their houses like prisoners. 3765 – Jilbab, plural jalabib: an outer garment; a long gown covering the whole body, or a cloak covering the neck as bosom., The essential part of a religion is primarily ascertained with reference to the doctrine of that religion. In determining the essentiality of a practice, it is crucial to consider whether the practice is prescribed to be obligatory within that religion. If a practice is optional, it cannot be said to be essential. A practice claimed to be essential must be such that the nature of the religion would be altered in its absence. The Islamic jurist Asaf A. A. Fyzee states: ‘We have the Qur’an, which is the very word of God. Supplementary to it we have Hadith, the traditions of the Prophet, from which we must derive help and inspiration in arriving at legal decisions. If there is nothing in the Qur’an or Hadith to answer a particular question, we must follow the dictates of secular reason in accordance with certain definite principles. These principles constitute the basis of sacred law or Sharia as understood by Muslim scholars.’, Petitioners cite Surah (xxxiii), verse 59, to argue that wearing hijab is an indispensable requirement of Islamic faith. This contention is difficult to countenance. Abdullah Yusuf Ali, at footnote 3766, explains that the object was not to restrict women’s liberty but to protect them from harm and molestation under the conditions then existing in Medina., Veiling practices pre‑date Islam. Societies such as the Byzantines, Sassanids and other Near and Middle Eastern cultures practiced veiling. Evidence indicates that two clans in southwestern Arabia, Ban Ismail and Ban Qan, practiced veiling in pre‑Islamic times. Veiling signified a woman’s social status; in Mesopotamia it distinguished women from slaves and unchaste women. In some ancient legal traditions, such as Assyrian law, unchaste or unclean women were prohibited from veiling, and illegal veiling attracted severe penalties. The practice spread throughout the ancient world through invasion., Considering the life conditions of the region, wearing hijab was recommended as a measure of social security for women and to facilitate safe access to the public domain. At most, the practice may have cultural elements but not religious ones. Yusuf Ali’s note 3764 reiterates that the times were insecure and women were asked to cover themselves with outer garments when walking abroad, not to be confined like prisoners., History shows abuse and oppression of women; the era before Islam, known as Jahiliya, was a time of barbarism and ignorance. The Qur’an shows concern for molestation of innocent women and therefore recommended wearing such apparel as a measure of social security. Over time, some religious elements may have permeated the practice, but that does not render it predominantly religious or essential to the Islamic faith. Ali’s footnote 3768 to verse 60 asks: ‘Are these conditions present among us today?’ Thus, the practice was closely linked to socio‑cultural conditions then prevalent., Petitioners also relied upon verses 4758 and 4759 from Dr. Muhammad Muhsin Khan’s The Translation of the Meanings of Sahih al‑Bukhari, Volume 6, Darussalam, Riyadh. Verse 4758 narrates that Aisha said Allah bestowed mercy on early emigrant women; when the verse ‘and to draw their veils over their bodies, faces, necks and bosoms’ (24:31) was revealed, they tore their woolen dresses and covered their heads and faces with those torn pieces. Verse 4759 similarly describes Aisha’s narration of women cutting their waist‑sheets and covering their heads and faces., The petitioners do not provide credentials for the translator Dr. Muhammad Muhsin Khan. The first page of volume 6 describes him as former Director, University Hospital, Islamic University, Al‑Madina, Al‑Munawwara (Kingdom of Saudi Arabia). No credentials regarding his authority as a commentator on hadith are discussed. A reference to his work appears in a decision of the Jammu & Kashmir High Court in Lubna Mehraj v. Mehraj‑ud‑Din KANTH., The text and context of the verse do not show an obligatory nature. No other verses in the translation indicate mandatory status. Whatever is stated in scriptures does not become per se mandatory. This is the basis of the concept of essential religious practice. The Apex Court in Shayara Bano proscribed the 1400‑year‑old practice of triple talaq in Islam. What is recommendatory in the Holy Qur’an cannot be transformed into mandatory dicta by Ahadith, which are supplementary to the scripture. Paragraph 42 of Shayara Bano refers to Fyzee’s work, supporting this view., Both petitioners and respondents cited decisions of the Kerala High Court, the Madras High Court and the Bombay High Court. In In re Amnah Bint Basheer, a single judge of the Kerala High Court (Justice A. Muhamed Mustaque) observed that Quranic injunctions and Hadith show that it is farz (obligatory) to cover the head and wear a long‑sleeved dress, and that exposing the body is haram (forbidden). He noted the possibility of differing views based on ijtihad (independent reasoning) and that such differences are not a ground to deny freedom., The judge also stated that the examination was a one‑time affair, not a daily uniform, and that alternative measures such as personal examination by a lady member were feasible. He emphasized that the decision did not reference Abdullah Yusuf Ali’s commentary, and that the Division Bench’s dismissal of the writ appeal does not provide substantial support for either side., In In re Fathima Thasneem, the Kerala High Court balanced the rights of a minority educational institution (protected under Articles 29 and 30 of the Constitution) against the individual right of a student. The court held that the institution’s right overrides the individual’s, and the student could not be permitted to attend classes with a headscarf and full‑sleeve shirt. The court dismissed the writ petition., In In re Fathima Hussain, a Division Bench of the Bombay High Court held that there is no obligatory requirement for a girl studying in an all‑girls section to wear a head covering. The court observed that directing the petitioner not to wear a headscarf does not violate Article 25 of the Constitution., A Division Bench of the Madras High Court, while dismissing a challenge to a dress code for teachers, observed that dress codes are a mode to enforce discipline among students and teachers, and that the management has the power to issue circulars under the regulations. The court held that the freedom of conscience or right to religion under Article 25 was not discussed., The Allahabad High Court, in Bulandshahr, upheld a prescription of dress code for advocates, stating that prescribed dress distinguishes an advocate from a litigant, reinforces identity, and induces seriousness and decorum conducive to the dispensation of justice., Some petitioners argued that, regardless of the right to religion, the girl students have freedom of conscience guaranteed under Article 25 and that wearing hijab is an act of conscience; therefore, interdicting this act would offend their conscience and violate their fundamental right. They relied on Bijoe Emmanuel where the Supreme Court held that expulsion of children for not singing the national anthem violated their freedom of conscience, though the court emphasized that the case concerned the right to religion rather than conscience., The Bijoe Emmanuel case involved three Jehovah’s Witness children who respectfully stood up but refused to sing the national anthem on religious grounds. They were expelled, but the court found that their refusal did not cause disturbance and that the decision was more about the right to religion than freedom of conscience. The court also recognized the freedom of speech and expression under Article 19, including the right to remain silent.
id_645	3	True it is that the BIJOE EMMANUEL reproduces the following observation of Justice Davar made in Jamshedji: If this is the belief of the community and it is proved undoubtedly to be the belief of the Zoroastrian community, a secular judge is bound to accept that belief—it is not for him to sit in judgment on that belief. He has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be in advancement of his religion and for the welfare of his community or of mankind. These observations essentially relate to the belief of the Zoroastrian community. It is very little related to the freedom of conscience as envisaged under Article 25 of the Constitution enacted about four decades thereafter. The expression conscience of a donor is in the light of religious belief, much away from freedom of conscience. After all, the meaning of a word takes its colour with the companion words, that is, noscitur a sociis. After all, a word in a judgment cannot be construed as a word employed in a statute. In the absence of demonstrable conformity to the essentials of a decision, the denomination emerging as a ratio would not be an operable entity in every case comprising neighbouring fact matrix. What is noticeable is that BIJOE EMMANUEL did not demarcate the boundaries between freedom of conscience and right to practise religion, presumably because the overt act of the students in respectfully standing up while the National Anthem was being sung transcended the realm of their conscience and took their case to the domain of religious belief. Thus, BIJOE EMMANUEL is not the best vehicle for drawing a proposition essentially founded on freedom of conscience., In order to establish their case, claimants have to plead and prove that wearing of hijab is a religious requirement and it is a part of essential religious practice in Islam in the light of a series of decisions of the Supreme Court of India that ultimately ended with Indian Young Lawyers Association. The same has already been summarized by us above. All these belong to the domain of facts. In Narayana Deekshithulu, it is said: What are essential parts of religion or religious belief or matters of religion and religious practice is essentially a question of fact to be considered in the context in which the question has arisen and the evidence—factual, legislative or historic—presented in that context is required to be considered and a decision reached. The claimants have to plead these facts and produce requisite material to prove the same. The respondents are more than justified in contending that the writ petitions lack the essential averments and that the petitioners have not loaded to the record the evidentiary material to prove their case. The material before us is extremely meager and it is surprising that on a matter of this significance, petition petitions should be as vague as can be. We have no affidavit before us sworn to by any Maulana explaining the implications of the suras quoted by the petitioners. Pleadings of the petitioners are not much different from those in Mohd. Hanif Quareshi, supra, which the Supreme Court of India had criticized. Since how long all the petitioners have been wearing hijab is not specifically pleaded, the plea with regard to wearing of hijab before they joined this institution is materially absent. No explanation is offered for giving an undertaking at the time of admission to the course that they would abide by the school. The School Association, supra, has stated that matters that are essential to religious faith or belief have to be adjudged on the evidence borne out by the record. There is absolutely no material placed on record to prima facie show that wearing of hijab is a part of an essential religious practice in Islam and that the petitioners have been wearing hijab from the beginning. This apart, it can hardly be argued that hijab, being a matter of attire, can be justifiably treated as fundamental to Islamic faith. It is not that, if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become sinners, Islam loses its glory and it ceases to be a religion. Petitioners have miserably failed to meet the threshold requirement of pleadings and proof as to wearing hijab being an inviolable religious practice in Islam and much less a part of essential religious practice., We are confronted with the question whether there is power to prescribe dress code in educational institutions. This is because of passionate submissions of the petitioners that there is absolutely no such power in the scheme of the 1983 Act or the Rules promulgated thereunder. In view of the above discussion, we are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith. Schooling is incomplete without teachers, taught and the dress code; collectively they make a singularity. No reasonable mind can imagine a school without uniform. After all, the concept of school uniform is not of a nascent origin. It is not that Mughals or British brought it here for the first time. It has been there since the ancient gurukul days. Several Indian scriptures mention samavastr or shubhravesh in Sanskrit, their English near equivalent being uniform. The work is treated by the Supreme Court of India as authoritative vide Deoki Nandan versus Murlidhar (75). In England, the first recorded use of standardized uniform or dress code in institutions dates back to 1222, that is, Magna Carta days. Hunter‑Henin and Mark Hill, contributors to the book Law, Religious, state: The wearing of a prescribed uniform for school children of all ages is a near‑universal feature of its educational system, whether in state schools or in private fee‑paying schools. This is not a matter of primary or secondary legislation or of local governmental regulation but rather reflects a widespread and long‑standing social practice. It is exceptional for a school not to have a policy on uniform for its pupils. The uniform—traditionally black or grey trousers, jumpers and jackets in the coloured livery of the school and ties for boys—serves to identify individuals as members of a specific institution and to encourage and promote the corporate, collective ethos of the school. More subtly, by insisting upon identical clothing (often from a designated manufacturer) it ensures that all school children dress the same and appear equal; thus, differences of social and economic background that would be evident from the nature and extent of personal wardrobes are eliminated. It is an effective leveling feature, particularly in comprehensive secondary schools whose catchment areas may include a range of school children drawn from differing parental income brackets and social classes. In accord with the general principle that school authorities may make reasonable rules and regulations governing the conduct of pupils under their control, it may be stated generally that school authorities may prescribe the kind of dress to be worn by students or make reasonable regulations as to their personal appearance. It has been held that so long as students are under the control of school authorities, they may be required to wear a designated uniform, or may be forbidden to use face powder or cosmetics, or to wear transparent hosiery, low‑necked dresses, or any style of clothing tending toward immodesty in dress. Several cases have held that school regulations proscribing certain hairstyles were valid, usually on the basis that a legitimate school interest was served by such a regulation. Thus, it has been held that a public high school regulation which bars a student from attending classes because of the length or appearance of his hair is not invalid as being unreasonable or arbitrary, because a student's unusual hairstyle could distract other pupils and disrupt the proper classroom atmosphere or decorum., The argument of petitioners that prescribing school uniforms pertains to the domain of police power and therefore, unless the law in so many words confers such power, there cannot be any prescription, is too far‑fetched. In civilized societies, preachers of education are treated next to the parents. Pupils are under the supervisory control of the teachers. The parents, whilst admitting their wards to the schools, in some measure share their authority with the teachers. Thus, the authority which the teachers exercise over the students is a shared parental power. The following observations in T.M.A. Pai Foundation, at paragraph 64, lend credence to this view: An educational institution is established only for the purpose of imparting education to the students. In such an institution, it is necessary for all to maintain discipline and abide by the rules and regulations that have been lawfully framed. The teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education. It is relevant to state that not even a single ruling of a court nor a sporadic opinion of a jurist nor of an educationist was cited in support of petitioners’ argument that prescribing school uniform partakes the character of police power. Respondents are justified in tracing this power to the text and context of sections 7(2) and 133 of the 1983 Act read with Rule 11 of the 1995 Curricula Rules. We do not propose to reproduce these provisions that are as clear as Gangetic waters. This apart, the preamble to the 1983 Act mentions, inter alia, fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education. Section 7(2)(g)(v) provides for promoting harmony and the spirit of common brotherhood amongst all the people of India, transcending religious, linguistic and regional or sectional diversities, and to renounce practices derogatory to the dignity of women. The Supreme Court of India in Modern Dental College, supra, construed the term education to include curricula, vide paragraph 123. The word curricula employed in section 7(2) of the Act needs to be broadly construed to include the power to prescribe uniform. Under the scheme of the 1983 Act coupled with international conventions to which India is a party, there is a duty cast on the State to provide education at least up to a particular level and this duty, coupled with power, includes the power to prescribe school uniform. Dhirajlal, at page 98, discusses parental and quasi‑parental authority: The old view was that the authority of a schoolmaster, while it existed, was the same as that of a parent. A parent, when he places his child with a schoolmaster, delegates to him all his own authority, so far as it is necessary for the welfare of the child. The modern view is that the schoolmaster has his own independent authority to act for the welfare of the child. This authority is not limited to offences committed by the pupil upon the premises of the school, but may extend to acts done by such pupil while on the way to and from the school. It is relevant to mention an old English case in Rex versus Newport (Salop), which the authors have summarized as follows: At a school for boys there was a rule prohibiting smoking by pupils whether in the school or in public. A pupil after returning home smoked a cigarette in a public street and the next day the schoolmaster administered five strokes with a cane. It was held that the father of the boy, by sending him to the school, authorized the schoolmaster to administer reasonable punishment to the boy for breach of a school rule, and that the punishment administered was reasonable. Even in the absence of enabling provisions, we are of the view that the power to prescribe uniform, as of necessity, inheres in every school subject to all just exceptions., The incidental question as to who should prescribe the school uniform also figures for our consideration in the light of petitioners’ contention that the government has no power in the scheme of the 1983 Act. In T.M.A. Pai Foundation, the Supreme Court of India observed at paragraph 55: There can be no doubt that in seeking affiliation or recognition, the Board or the university or the affiliating or recognizing authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance, indicate the quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth as a prerequisite. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the government‑aided institutions. Whereas in the latter case the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions maximum autonomy in day‑to‑day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence. Section 133(2) of the 1983 Act vests power in the Government to give direction to any educational institution for carrying out the purposes of the Act or to give effect to any of the provisions of the Act or the Rules, and the institution, be it governmental, State‑aided or privately managed, is bound to obey the same. This section coupled with section 7(2) clothes the Government with power, inter alia, to prescribe or cause to be prescribed school uniform. The Government, vide circular dated 31 January 2014, accordingly issued a direction. Significantly, this is not put in challenge and we are not called upon to adjudge its validity, although some submissions were made de hors the pleadings that to the extent the circular includes the local Member of the Legislative Assembly and his nominee respectively as the President and Vice President of the College Betterment (Development) Committee, it is vulnerable to challenge. In furtherance thereof, it has also issued a Government Order dated 5 February 2022. We shall discuss more about the said circular and the order later. Suffice it to say now that the contention as to absence of power to prescribe dress code in schools is liable to be rejected. There has been an overwhelming juridical opinion in all advanced countries that, in accord with the general principle, school authorities may make reasonable regulations governing the conduct of pupils under their control and may prescribe the kind of dress to be worn by students or make reasonable regulations as to their personal appearance. In Miller versus Gills, a rule that the students of an agricultural high school should wear a khaki uniform when in attendance at the class and while visiting public places within five miles of the school was held not ultra vires, unreasonable, or void. Similarly, in Christmas versus El Reno Board of Education, a regulation prohibiting male students who wore hair over their eyes, ears or collars from participating in a graduation diploma ceremony, which had no effect on the students’ actual graduation from high school, was held valid. It is also true that our Constitution protects the rights of school children against unreasonable regulations. However, the prescription of dress code for the students within the four walls of the classroom, as distinguished from the rest of the school premises, does not offend constitutionally protected categories of rights when the regulations are religion‑neutral and universally applicable to all students. This view gains support from Justice Scalia, who observed that uniforms promote harmony and the spirit of common brotherhood transcending religious or sectional diversities. Moreover, it is impossible to instill the scientific temperament which our Constitution prescribes as a fundamental duty vide Article 51A(h) into young minds so long as propositions such as wearing of hijab or bhagwa are regarded as religiously sacrosanct and therefore not open to question. They inculcate secular values amongst the students in their impressionable and formative years., The school regulations prescribing dress code for all the students as one homogeneous class serve constitutional secularism. It is relevant to quote the observations of Chief Justice Venkatachalaiah in Ismail: The concept of secularism is one facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our Constitution. In a pluralist, secular polity, law is perhaps the greatest integrating force. Secularism is more than a passive principle; it is a positive concept of equal treatment of all religions. What is material is that it is a constitutional goal and a basic feature of the Constitution. It is pertinent to mention that the preamble to the 1983 Act appreciably states the statutory object of fostering the harmonious development of the mental and physical faculties of students and cultivating a scientific and secular outlook through education. This also accords with the fundamental duty constitutionally prescribed under Article 51A(e) in the same language, as already mentioned above. Petitioners’ argument that the goal of education is to promote plurality, not uniformity or homogeneity, but heterogeneity, and therefore prescription of student uniform offends the constitutional spirit and ideal, is thoroughly misconceived., Petitioners argued that regardless of their freedom of conscience and right to religion, wearing of hijab possesses cognitive elements of expression protected under the cited authorities and also has the substance of privacy and autonomy that are guarded under Article 21 vide K.S. Puttaswamy, supra. Learned advocates appearing for them vociferously submit that the Muslim students would adhere to the dress code with hijab of a matching colour as may be prescribed and that this should be permitted by the school by virtue of reasonable accommodation. If this proposal is not conceded, then prescription of any uniform would be violative of their rights under these articles, as it would not pass the least‑restrictive test and proportionality test, they contended. In support, they press into service Chintaman Rao and Md. Faruk, supra. Let us examine this contention. The Supreme Court of India succinctly considered these tests in Internet and the following observations: “While testing the validity of a law imposing a restriction on the carrying on of a business or a profession, the Court must, as formulated in Md. Faruk, attempt an evaluation of (that) its direct and immediate impact upon the fundamental rights of the citizens affected thereby; the larger public interest sought to be ensured in the light of the object sought to be achieved; the necessity to restrict the citizens’ freedom; the inherent pernicious nature of the act prohibited or its capacity or tendency to be harmful to the general public; and the possibility of achieving the same object by imposing a less drastic restraint.” On the question of proportionality, the learned counsel for the petitioners relies upon the four‑pronged test summed up in the opinion of the majority in Modern Dental College and Research Centre versus State of Madhya Pradesh. These four tests are: the measure is designated for a proper purpose; the measures are rationally connected to the fulfilment of the purpose; there are no alternative less invasive measures; and there is a proper relation between the importance of achieving the aim and the importance of limiting the right. Even by our own standards, we are obliged to see if there were less intrusive measures available and whether the authorities have at least considered these alternatives. All rights have to be viewed in the contextual conditions which were framed under the Constitution and the way in which they have evolved in due course. As already mentioned, the fundamental rights have relative content and their efficacy depends upon the circumstances in which they are sought to be exercised. To evaluate the content and effect of restrictions and to adjudge their reasonableness, the aforesaid tests become handy. However, the petitions we are treating do not involve the right to freedom of speech and expression or the right to privacy to such an extent as to warrant the employment of these tests for evaluation of the argued restrictions in the form of school dress code. The complaint of the petitioners is against the violation of essentially derivative rights. Their grievances do not go to the core of substantive rights but lie in the penumbra thereof. By a sheer constitutional logic, the protection that otherwise avails to substantive rights cannot be stretched too far even to cover derivative rights of this nature, regardless of the qualified public places in which they are sought to be exercised. It hardly needs to be stated that schools are qualified public places structured predominantly for imparting educational instruction to the students. Such qualified spaces by their very nature repel the assertion of individual rights to the detriment of general discipline and decorum. Even substantive rights themselves metamorphose into a kind of derivative right in such places. For example, the rights of an under‑trial detainee are qualitatively and quantitatively inferior to those of a free citizen; similarly, the rights of a serving convict are inferior to those of an under‑trial detainee. By no stretch of imagination can it be argued that prescription of dress code defeats students’ fundamental right to expression or their autonomy. In matters like this, there is absolutely no scope for a complaint of manifest arbitrariness or discrimination, inter alia, under Articles 14 and 15, when the dress code is equally applicable to all students, regardless of religion, language, gender or the like. It is not a sectarian dress code., Petitioners contend that a classroom should be a place for recognition and reflection of the diversity of society, a mirror image of the society socially and ethically, but this is only hollow rhetoric. Unity in diversity has been the oft‑quoted platitude since the days of In re Kerala Education Bill, supra, wherein paragraph 51 reads: the genius of India has been able to find unity in diversity by assimilating the best of all creeds and cultures. The counsel appearing for Respondent Nos. 15 and 16 in W.P. No. 2146/2022 is justified in pressing into service a House of Lords decision, supra, wherein at paragraph 97 it is observed: “But schools are different. Their task is to educate the young from all the many and diverse families and communities in this country in accordance with the national curriculum. Their task is to help all of their pupils achieve their full potential. This includes growing up to play whatever part they choose in the society in which they are living. The school's task is also to promote the ability of people of diverse races, religions and cultures to live together in harmony. Fostering a sense of community and cohesion within the school is an important part of that. A uniform dress code can play its role in smoothing over ethnic, religious and social divisions.”, It hardly needs to be stated that our Constitution is founded on the principle of limited government. The most important gift to the common person given by this Constitution is fundamental rights, which may be called human rights as well. It is also equally true that in this country the freedom of citizens has been broadening, precedent by precedent, and the most remarkable feature of this relentless expansion is the magical wand of judicial activism. Many new rights with which the makers of our Constitution were not familiar have been shaped by the constitutional courts. Though basic human rights are universal, their regulation as of necessity is also a constitutional reality. The restriction and regulation of rights, whether fundamental or otherwise, are a small price which persons pay for being members of a civilized community. There has to be a balancing of competing interests, that is, the collective rights of the community at large and the individual rights of its members. It is true that dressing is an expression protected under Article 19(1)(a) of the Constitution and therefore, ordinarily, no restriction can be placed on one's personal appearance or choice of apparel. However, it is specifically mentioned at paragraph 69 that this right is subject to the restrictions contained in Article 19(2) of the Constitution. The decision was structured keeping gender identity at its focal point, attire being associated with such identity. Autonomy and privacy rights have also blossomed vide K.S. Puttaswamy, supra. We have no quarrel with the petitioners’ essential proposition that what one desires to wear is a facet of one's autonomy and that one's attire is one's expression, but all that is subject to reasonable regulation., Nobody disputes that persons have a host of rights that are constitutionally guaranteed in varying degrees and that they are subject to reasonable restrictions. What is reasonable is dictated by a host of qualitative and quantitative factors. Ordinarily, a positive aspect of a right includes its negative aspect. Thus, the right to speech includes the right to be silent, vide Bijoe Emmanuel. However, the negative of a right is not invariably coextensive with its positive aspect. Precedentially, the right to close down an industry is not coextensive with its positive facet, that is, the right to establish industry under Article 19. The right to life, under Article 21, does not include the right to die, and suicide is an offence under Section 309 of the Indian Penal Code. It hardly needs to be stated that the content and scope of a right, in terms of its exercise, are circumstantially dependent. Ordinarily, liberties of a person are curtailed, inter alia, by his position, placement and the like. The extent of autonomy is enormous at home, since residence of a person is ordinarily treated as his inviolable castle. However, in qualified public places such as schools, courts, war rooms and defence camps, the freedom of individuals is necessarily curtailed consistent with discipline, decorum and the function and purpose of the place. Since wearing hijab as a facet of expression protected under Article 19(1)(a) is being debated, we may profitably refer to free‑speech jurisprudence in other jurisdictions. The Supreme Court of India observed: “While examining the constitutionality of a law which is alleged to contravene Article 19(1)(a) of the Constitution, we cannot, no doubt, be solely guided by the decisions of the Supreme Court of the United States of America. But in order to understand the basic principles of freedom of speech and expression and the need for that freedom in a democratic country, we may take them into consideration.” In the United States, the Fourteenth Amendment is held to protect the First Amendment rights of school children against unreasonable rules or regulations, vide Burnsides versus Byars. Therefore, a prohibition by school officials of a particular expression of opinion is held unsustainable where there is no showing that the exercise of the forbidden right would materially interfere with the requirements of positive school discipline. However, conduct by a student, in class or out of it, which for any reason—whether it stems from time, place or type of behavior—materially disrupts class work or involves substantial disorder or invasion of the rights of others is not immunized by the constitutional guarantee of free speech. If school restrictions are sustainable on the ground of positive discipline and decorum, there is no reason why they should not be applied in our land. An extreme argument that students should be free to choose their attire individually, if countenanced, would only breed indiscipline that may eventually degenerate into chaos in the campus and later in society at large. This is not desirable.
id_645	4	It is too farfetched to argue that the school dress code militates against the fundamental freedoms guaranteed under Articles 14, 15, 19, 21 and 25 of the Constitution and therefore, the same should be outlawed by the stroke of a pen. The counsel for the petitioners passionately submitted that the students should be permitted to wear hijab of structure and colour that suit the prescribed dress code. In support of this, they bank upon the principle of reasonable accommodation. They drew our attention to the prevalent practice of dress codes/uniforms in Kendriya Vidyalayas. We are not impressed by this argument. Reasons are not far to seek: firstly, such a proposal if accepted, the school uniform ceases to be uniform. There shall be two categories of girl students viz., those who wear the uniform with hijab and those who do it without. That would establish a sense of social separateness, which is not desirable. It also offends the feel of uniformity which the dress code is designed to bring about amongst all the students regardless of their religion and faiths. As already mentioned above, the statutory scheme militates against sectarianism of every kind. Therefore, the accommodation which the petitioners seek cannot be said to be reasonable. The object of prescribing uniform will be defeated if there is non-uniformity in the matter of uniforms. Youth is an impressionable period when identity and opinion begin to crystallize. Young students are able to readily grasp from their immediate environment, differentiating lines of race, region, religion, language, caste, place of birth, etc. The aim of the regulation is to create a safe space where such divisive lines should have no place and the ideals of egalitarianism should be readily apparent to all students alike. Adherence to dress code is mandatory for students., Recently, a Division Bench of the Supreme Court of India disposed of Writ Petition No. 13751 of 2019 on 28 August 2019. What the Kendriya Vidyalayas prescribe as uniform or dress code is left to the policy of the Central Government. Our federal structure, as explained by Professor K. C. Wheare, means that the federal units, namely the States, need not toe the line of the Centre. Petitioners' heavy reliance on the South African decision does not much aid them. Constitutional schemes and socio‑political ideologies vary from one country to another, regardless of textual similarities. A constitution of a country being the fundamental law is shaped by several streams of forces such as history, religion, culture, way of life, values and other factors. In a given factual matrix, how a foreign jurisdiction treats the case cannot be the sole model readily availing for adoption in our system, which ordinarily treats foreign law and foreign judgments as matters of fact. Secondly, the cited case involved a nose stud, which is insignificantly small and does not affect the uniformity that the dress code intends to bring in the classroom. That was an inarticulate factor of the said judgment. By and large, the first reason above answers the Malaysian court decision as well. Malaysia, being a theistic nation with Islam as the state religion, treated wearing hijab as part of religious practice. We have a wealth of material with which a view in respectful variance is formed. Those foreign decisions cited by the other side, for the same reasons, do not come to much assistance. In several countries, wearing of burqa or hijab is prohibited, which is of no assistance to us. Noble thoughts coming from whichever direction are most welcome. Foreign decisions also throw light on the issues debated, but courts have to adjudge the causes brought before them essentially in accordance with native law., The Government, by circular dated 31 January 2014, directed the constitution of School Betterment Committees, inter alia with the object of securing State aid and its appropriation and enhancing the basic facilities and their optimum utilization. This committee in every Pre‑University College shall be headed by the local Member of Legislative Assembly as its President and his nominee as the Vice President. The Principal of the College shall be the Member Secretary. The membership comprises student representatives, parents, one educationist, a Vice Principal or Senior Professor and a Senior Lecturer. The requirement of reservation for Scheduled Caste, Scheduled Tribe and Women is horizontally prescribed. It is submitted that these committees have been functioning for about eight years with no complaints whatsoever. Petitioners argued for the committees' invalidation on the ground that the presence of the local Member of Legislative Assembly and his nominee would infuse politics into the campus and therefore is not desirable. They also submit that the College Development Committee, being an extra‑legal authority, has no power to prescribe uniform., We are not inclined to undertake a deeper discussion on the validity of the constitution and functioning of School Betterment (Development) Committees since none of the writ petitions seeks to challenge the Government circular of January 2014. Merely because these committees are headed by the local Member of Legislative Assembly, we cannot hastily conclude that their formation is bad. It is relevant to mention what the Supreme Court of India said in Professor Wade's Administrative Law: the principle must be equally true even where the 'brand' of invalidity is plainly visible; the order can effectively be resisted in law only by obtaining the decision of the Court. Professor Wade sums up that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plaintiff's lack of standing, waiver of rights, or other legal reasons. In any such case the 'void' order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another, and it may be void against one person but valid against another. The aggrieved party must approach the Court for a declaration that the order is inoperative as against him, within the prescribed period of limitation. If the statutory time limit expires, the Court cannot give the declaration sought., It is not the case that the Government circular is void ab initio and consequently the School Betterment (Development) Committees are non‑existent. They have been functioning for the last eight years and no complaint has been raised about their performance, nor is any material placed on record that warrants consideration of their validity despite the absence of pleadings and prayers. Schools and hospitals, among other institutions, are matters of electoral consideration and therefore people's representatives show concern for their performance. Induction of local Members of Legislative Assembly in the committees per se is not a ground for voiding the circular., We have already held that schools and institutions have the power to prescribe student uniform. There is no legal bar for the School Betterment (Development) Committees to associate with the process of such prescription. However, there may be some scope for the view that it is not desirable to have elected representatives of the people in school committees, one obvious reason being the possible infusion of party politics into the campus. This is not to cast aspersion on anyone. We are aware of the advantages of schools associating with elected representatives, such as the ability to fetch funds and other assistance for development. No law or ruling has been brought to our notice that interdicts their induction as constituent members of such committees., The validity of the Government Order dated 5 February 2022 was hotly debated in these writ petitions. Petitioners argued that this order could not have been issued in purported exercise of power under sections 133 and 7(2) of the 1983 Act read with Rule 11 of the 1995 Curriculum Rules. The State and other respondents contended to the contrary, invoking sections 142 and 143 of the 1983 Act as well. The order does not prescribe any dress code; it provides for prescription of uniform in four different types of educational institutions. For ease of reference, the order states: (a) in government schools, as prescribed by the government; (b) in private schools, as prescribed by the school management; (c) in Pre‑University colleges that come within the jurisdiction of the Department of Pre‑University Education, as prescribed by the College Development Committee or College Supervision Committee; and (d) wherever no dress code is prescribed, attire that accords with equality and integrity and does not disrupt public order., Petitioners first argued that the order suffers from material irregularity apparent on its face, in that the rulings cited therein do not lay down the ratio which the government wrongly states that they do. The order refers to two decisions of the Kerala High Court and one decision of the Bombay and Madras High Courts each. We have already discussed those decisions, and therefore need not repeat them. Regardless of the ratio of those decisions, if the Government Order is otherwise sustainable in law, which we believe it is, the challenge must fail for more than one reason. The subject matter of the order is the prescription of school uniform. Power to prescribe, we have already held, is available in the scheme of the 1983 Act and the Rules promulgated thereunder. Section 133(2) of the Act, which is broadly worded, empowers the government to issue any directions to give effect to the purposes of the Act or any provision of the Act or any rule made thereunder. This wide conferment of power obviously includes the authority to prescribe school dress code. Moreover, Rule 11 of the 1995 Curriculum Rules itself provides for the prescription of school uniform and its modalities. The Government Order can be construed as issued to give effect to this rule. Such an order must be read in the light of the said rule and the 2014 circular, since there exists a kinship inter se. Therefore, the question of competence of the government to issue an order of this kind is answered in the affirmative., Petitioners' second contention relates to the exercise of statutory power by the government that culminated in the issuance of the impugned order. There is a difference between existence of power and exercise of power; existence of power per se does not justify its exercise. The public power coupled with duty needs to be wielded for effectuating the purpose of its conferment. Counsel for the students argued that the order should be voided since the reasons on which it is structured are ex facie bad and that new grounds cannot be imported to the body of the order for infusing validity, citing the administrative law principle that the validity of a statutory order has to be adjudged only on the reasons stated in the order itself. We have no quarrel with this principle, which has been reiterated in Mohinder Singh Gill. However, we are not sure of its invocation in a case wherein the validity of the impugned order can otherwise be sustained on the basis of other intrinsic material. As we have already mentioned, the order is issued to give effect to the purposes of the 1983 Act and to Rule 11 of the 1995 Curriculum Rules. That being the position, the question of unsustainability of some of the reasons on which the order is constructed pales into insignificance., Petitioners next argued that the order cites public order as one of the reasons for prescribing uniform to the exclusion of hijab; disruption of public order is not caused by those who wear the apparel but by those who oppose it, many of whom wear saffron or other cloth symbolic of religious overtones. The government should take action against the hooligans disrupting peace, instead of asking Muslim girl students to remove their hijab. In support of this contention, they drew the court's attention to the concept of heckler's veto as discussed in K. M. Shankarappa. They further argued that, being a positive secular state, the government should create a congenial atmosphere for the exercise of citizens' rights by taking stern action against those who obstruct, as discussed in Praveen Bhai Thogadia. We do not have any quarrel with the proposition of law, but we are not convinced that it is sufficient to invalidate the order, which per se does not prescribe any uniform but only provides for prescription in a structured way. We have already upheld that wearing hijab is not an essential religious practice and school uniform can be prescribed to its exclusion. The uniform can also exclude any other apparel such as saffron or a blue shawl that may have visible religious overtones. The object of prescribing uniform can be stated by quoting the Department of Education: a safe and disciplined learning environment is the first requirement of a good school. Young people who are safe and secure, who learn basic values and the essentials of good citizenship, are better students. In response to growing levels of violence in schools, many parents, teachers and school officials have come to see school uniforms as a positive and creative way to reduce discipline problems and increase school safety., We hasten to add that certain terms used in a Government Order such as public order, etc., cannot be construed as the ones employed in the Constitution or statutes. There is a substantial difference in the textual structuring of legislation and in promulgating a statutory order. The draftsmen of legislation employ terminology with due diligence, whereas government officers at times lack such care while framing policies. Courts often encounter Government Orders with lavish terminology that may lend weight to challenges. The words used in Government Orders must be construed in the generality of their text, with common sense and a measure of grace for linguistic pitfalls. The text and context of the Act under which such orders are issued also figure in the mind. The impugned order could have been well drafted; there is scope for improvement. As Oscar Wilde said, a word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used. Thus, there is little scope for invoking the concept of law and order as discussed in Anita and Gulab Abbas, although the order gives a loose impression that there is some nexus between wearing hijab and law and order., Petitioners produced some loose papers without heading or tail, purported to be a brochure issued by the Education Department stating that there is no requirement of any school uniform and that prescription of one by any institution would be illegal. There is nothing on record to authenticate this version, and the author and legal authority are not identified. Even otherwise, this purported brochure cannot stand in the face of the Government Order dated 5 February 2022, whose validity we have already considered. Similarly, petitioners relied on research papers allegedly published by Pew Research Centre about religious clothing and personal appearance, contending that most Hindu, Muslim and Sikh women cover their heads outside the home and therefore the order, which militates against this social reality, is arbitrary. We are not inclined to subscribe to this view. No credentials of the researchers are stated nor is the representative character of the statistics demonstrated. The authenticity of the contents is apparently lacking., Petitioners contended that the Government Order was hastily issued even when the contemplated High Powered Committee was yet to examine the desirability of prescription and modules of dress codes in educational institutions. The contents of the order give this impression, which is true, but it is a feeble ground for overturning a policy decision. At times, governments take urgent decisions in response to special conditions such as social unrest and public agitations. These decisions may appear knee‑jerk but are matters of executive wisdom and are not readily subject to judicial assessment. The doctrine of separation of powers, a basic feature of our Constitution, expects the organs of the State to show due deference to each other's opinions. The argument that the order is a product of acting under dictation is difficult to countenance; who acted under whose dictation cannot be adjudged merely on the basis of concessional arguments. Such a proposition cannot be readily invoked as it would affect the institutional dignity and efficacy of the government. A strong case must be made, with pleadings and proof, to invoke that ground. In view of the above, we are of the considered opinion that the government has power to issue the impugned order dated 5 February 2022 and that no case is made out for its invalidation., There have been several international conventions and conferences in which India is a participant. Under our constitutional jurisprudence, owing to Article 51 which provides for promotion of international peace and security, such international conventions assume a significant role in construing welfare legislation and statutes related to the subject matter. In a sense, these instruments of international law permeate into our domestic law. Throughout, there has been both legislative and judicial process to emancipate women from pernicious discrimination in all its forms. Women, regardless of religion, are equal, if not superior to men, and are joining defence services on permanent commission basis as held by the Supreme Court of India in Civil Appeal No. 9367‑9369/2011 decided on 17 February 2020. In business, industry, profession, public and private employment, sports, arts and other walks of life, women are breaking the glass ceiling and faring better than their counterparts., It is relevant to quote Dr. B. R. Ambedkar in Chapter X, Part 1 titled Social Stagnation: A Muslim woman is allowed to see only her son, brothers, father, uncles and husband, or any other near relation who may be admitted to a position of trust. She cannot even go to the mosque to pray, and must wear a burqa whenever she has to go out. This burqa‑clad woman walking in the streets is one of the most hideous sights one can witness in India. The Muslims have all the social evils of the Hindus and something more. That something more is the compulsory system of purdah for Muslim women. Such seclusion cannot have a deteriorating effect upon the physical constitution of Muslim women. Being completely secluded from the outer world, they engage their minds in petty family quarrels, resulting in a narrow and restrictive outlook. They cannot take part in any outdoor activity and are weighed down by a slavish mentality and an inferiority complex. Purdah women in particular become helpless and timid. Considering the large number of purdah women amongst Muslims in India, one can easily understand the seriousness of the problem. As a consequence of the purdah system, a segregation of Muslim women is brought about. What the chief architect of our Constitution observed more than half a century ago about the purdah practice equally applies to wearing hijab; there is scope for the argument that insistence on wearing purdah, veil or headgear in any community may hinder the emancipation of women in general and Muslim women in particular. That militates against our constitutional spirit of equal opportunity of public participation and positive secularism. Prescription of school dress code to the exclusion of hijab, saffron or any other apparel symbolic of religion can be a step forward in the direction of emancipation and, more particularly, to access to education. It does not rob women of autonomy or their right to education, as they can wear any apparel of their choice outside the classroom., The petitioners in Writ Petition No. 2146 of 2022 have sought a writ of mandamus for initiating a disciplinary enquiry on the ground that respondents Nos. 6 to 14, i.e., the principal and teachers of the respondent college, are violating departmental guidelines which prohibit prescription of any uniform and for their hostile approach. Strangely, petitioners have also sought a writ of quo warranto against respondents Nos. 15 and 16 for alleged interference in the administration of the fifth respondent school and for promoting a political agenda. The petition is apparently ill‑drafted and the pleadings lack the cogency and coherence required for such serious prayers. We have already commented that the departmental guidelines have no force of law; therefore, the question of respondents violating them does not arise. We have also recorded a finding that the college can prescribe uniform to the exclusion of hijab, saffron or other religious symbols, and therefore the alleged act of the respondents in seeking adherence to school discipline and dress code cannot be faltered. No case is made out for granting the prayers or any other reliefs on the basis of these pleadings. The law of quo warranto is no longer in a fluid state in our country; the principles governing issuance of this writ have been well defined in University of Mysore v. C. D. Govind Rao. To seek a writ of this nature, one must demonstrate that the post or office held by the person concerned is a public post or public office. In our view, respondents Nos. 15 and 16 do not hold any such position in the respondent school. Their placement in the College Betterment (Development) Committee does not satisfy the public character required as a pre‑condition for issuance of a writ of quo warranto., From the submissions made on behalf of the respondent Pre‑University College at Udupi and the material placed on record, we notice that the dress code has been well‑functioning since 2004. We are also impressed that even Muslims participate in the festivals celebrated in the Ashta Mutts tradition, Udupi being the place where eight Mutts are situated. We are dismayed that, in the middle of the academic term, the issue of hijab has been generated and blown out of proportion. The way the hijab imbroglio unfolded gives scope for the argument that some unseen hands are at work to engineer social unrest and disharmony. We are not commenting on the ongoing police investigation lest it should be affected. We have perused and returned copies of the police papers that were furnished to us in a sealed cover. We expect a speedy and effective investigation into the matter and that culprits be brought to book without delay., Dr. Vinod Kulkarni has filed a public interest litigation in Writ Petition No. 3424 of 2022 seeking a writ of mandamus to the Central Government and State Government, inter alia, to permit female Muslim students to wear hijab provided they wear the stipulated school uniform also. The petition is unsatisfactorily structured on the basis of some print and electronic media reports that are not part of the paper book. Another public interest litigation, Ghanashyam Res‑PIL, seeks a writ of mandamus for an investigation by the Central Bureau of Investigation and the National Investigation Agency into the involvement of radical Islamic organisations such as Popular Front of India, Students Islamic Organisation of India, Campus Front of India and Jamaat‑e‑Islami and their funding by some foreign universities to Islamise India. There are other incoherent prayers. This petitioner opposes the case of students who desire to wear hijab. Most of the contentions taken up in these petitions are broadly treated in the companion writ petitions. We are not inclined to entertain these two writ petitions filed in PIL jurisdiction, both on the ground of their maintainability and merits. The second petition seeks to expand the parameters of the essential issues involved far beyond the warranted frame of consideration. In Writ Petition No. 3942 of 2022 (State of Karnataka decided on 25 February 2022), we have already held that when aggrieved parties are effectively prosecuting their personal causes, others cannot interfere by invoking PIL jurisdiction. A battery of eminent lawyers are representing the parties on both sides. Even otherwise, no exceptional case is made out for our indulgence. In the above circumstances, all these petitions, being devoid of merits, are liable to be dismissed and accordingly are dismissed. Costs are awarded. In view of the above, we are of the considered opinion that both the public interest litigations are liable to be rejected, absolutely no case having been made out for indulgence.
id_648	0	Judgment reserved on: 09.10.2023. Judgment pronounced on: 13.10.2023. Versus. Advocates who appeared in this case: For the petitioner: Mr. Rohit Sharma, Mr. Rounak Nayak, Mr. Nikhil Purohit and Mr. Jatin Lalwani, Advocates (in Criminal Revision Litigation Miscellaneous Cases, CRL.M.C.); Mr. Kapil Sibal, Mr. Dayan Krishnan and Mr. Siddharth Aggarwal, Senior Advocates with Mr. Arshdeep Singh Khurana, Mr. Harsh Srivastava, Mr. Harshit Mahalwal, Mr. Sidak Singh Anand, Mr. Manan Khanna, Mr. Nikhil Pawar, Ms. Rupali Samuel, Ms. Sowjhanya Shankar, Mr. Shreedhar Kale, Mr. Chaitanya and Mr. Vibhu Walia, Advocates (in CRL.M.C.). For the respondent: Mr. Tushar Mehta, Solicitor General with Mr. Amol Sinha, Additional Solicitor General, Mr. Akhand Pratap Singh, Mr. Kshitiz Garg, Mr. Ashvini Kumar, Mr. Rahul Kochar, Ms. Chavi Lazarus, Mr. Zoheb Hossain, Mr. Vivek Gurnani, Mr. Baibhav and Ms. Manisha Dubey, Advocates for the State. The proceeding has been conducted through hybrid mode., Upon the requests made by the learned counsel for the parties, Criminal Revision Litigation Miscellaneous Cases (CRL.M.C.) 7278/2023 is taken up for adjudication first., The petitioner seeks the following reliefs: A. Declare the arrest of the petitioner as illegal and in gross violation of the fundamental rights guaranteed under Article 21 and Article 22 of the Constitution of India in relation to FIR No. 224/2023 dated 17.08.2023, Special Cell, Lodhi Road, Delhi Police; B. Declare and set aside the Remand Order dated 04.10.2023 passed by the Learned Special Judge, Patiala House Court as null and void, being passed in complete violation of all constitutional mandates including failure to consult and to be defended by a legal practitioner of his choice during the remand proceedings, thereby violative of the petitioner's right guaranteed under Article 22 of the Constitution of India; C. Direct immediate release of the petitioner from custody in FIR No. 224/2023 dated 17.08.2023, Special Cell, Lodhi Road, Delhi Police., On 03.10.2023, during the early morning from 6:30 AM onwards, officers of Special Cell, Police Station Lodhi Road carried out extensive raids at the residential and official premises of the petitioner and the said company in relation to the FIR. Various documents and digital devices belonging to the petitioner and other employees of the company were seized. Despite sealing the office after seizure, no panchnama, seizure memo or backup of any digital devices seized from the office was provided by the raiding party at the conclusion of the search. The petitioner apprehends that the digital data retrieved may be tampered with to falsely implicate him and the company., The petitioner was unlawfully arrested and has been in the custody of the officers of Special Cell, Police Station Lodhi Road from the morning of 03.10.2023, i.e., from 6:30 AM onwards. He was taken to the office of the company in the afternoon and thereafter to Special Cell in the evening. The petitioner was informed only around 7 PM that he had been arrested in the said FIR. No grounds of arrest were communicated to him either orally or in writing at the time of arrest, nor at the time of filing the instant petition. He was briefly shown certain documents, described as a memo of arrest and a personal search memo, and was asked to sign them without being given any opportunity to read them. These documents have not been provided to either the petitioner or his counsel., Even after his arrest, the petitioner was not supplied with a copy of the FIR. Although he was allowed to meet his counsel briefly on 03.10.2023 at the Special Cell office, he was not permitted to sign any Vakalatnama nor was the counsel provided with a copy of the FIR despite multiple requests. The petitioner and his counsel were informed that he would be produced for the purposes of remand on the next day, i.e., 04.10.2023, during court hours., On 04.10.2023, without any prior notice, during the early morning the petitioner was abruptly woken up and taken to the residential premises of the Learned Special Judge at around 6:30 AM. At the residence, the Public Prosecutor and a Legal Aid Counsel (LAC) were already present, while the petitioner's counsel, whose identity was known to the Investigating Officer, was not informed. No documents authorising the LAC to appear on his behalf were executed by the petitioner. Neither the petitioner's counsel nor any family members were informed about the proceedings and were consequently absent during the hearing, which commenced upon arrival of the petitioner and the police authorities., Around 7 AM, a family member was apprised of the remand proceedings via a mobile phone call and was requested to inform the petitioner's counsel and ask the counsel to call the Investigating Officer. The petitioner's counsel called the Investigating Officer immediately, was informed of the remand proceedings, and objected, requesting permission to reach the residence of the Learned Special Judge to appear physically after taking instructions from the petitioner. The counsel was told that the remand application would be forwarded to him on his phone and that objections could be filed through WhatsApp., At around 7:07 PM an unsigned copy of the Remand Application was sent through WhatsApp messages to the petitioner's counsel by the Investigating Officer. The application neither mentioned the time of arrest nor whether the grounds of arrest were communicated to the petitioner., Upon receipt of the Remand Application, the petitioner's counsel immediately responded that the petitioner would file an application opposing the remand. This opposition was sent around 8 AM on the Investigating Officer's phone. The Investigating Officer responded on WhatsApp by providing the number of the Naib Court and requested the counsel to forward all applications to that number. These applications were provided to the Naib Court around 8:12 AM with a request to forward them to the Hon'ble Court for deciding the remand. A document containing detailed objections to the grant of remand was forwarded within an hour of receipt of the remand application., Shockingly, the petitioner's counsel was informed that the impugned order had already been passed and a seven‑day police custody remand had been granted, without hearing the petitioner's counsel and without consideration of the submitted documents. Despite the illegal arrest and the unlawful manner in which the remand proceedings were conducted, the Learned Special Judge on 04.10.2023, without applying judicial mind, particularly on the issue of non‑compliance with Article 22, erroneously proceeded to remand the petitioner to police custody for seven days., The order records that it was signed at 6:00 AM, which cannot be the case as no remand order was passed at least until 7 AM when the family member was called to join the remand proceedings. Moreover, the order records the presence of the petitioner's counsel through telephone, though the counsel was contacted only after 7 AM and therefore could not have been present at 6 AM., A perusal of the impugned order dated 04.10.2023 reveals that, apart from the petitioner's counsel, the Public Prosecutor and the LAC were already aware of the production and were physically present at the residence of the Learned Special Judge. However, as no prior notice of production was given to the petitioner's family or his counsel, the petitioner, who was already deprived of the reasons for arrest or allegations against him, was denied his right to legal representation of his choice. The petitioner's counsel, wishing to appear physically to oppose the remand application, had no option but to join the proceedings through a telephone call on short notice., Later on 04.10.2023, the petitioner was permitted to meet his counsel in the evening, pursuant to permission granted by the Learned Special Judge, and it was in this meeting that the petitioner informed his counsel about the events that transpired during the remand proceedings., Till the time of filing the instant petition, the petitioner has not been provided any grounds of arrest, either orally or in writing. The petitioner's application for supply of a copy of the FIR was allowed by the Learned Special Judge vide order dated 05.10.2023, but the petitioner and his counsel are yet to receive the copy. This application was opposed by the respondent, as evident from the respondent's reply, even after three days of the petitioner's arrest., Before adverting to the arguments and facts as addressed in the present case, it is deemed relevant to consider the law which would govern the considerations. This Court considers that the following legal issues arise: (a) Whether the ratio laid down by the Supreme Court of India in Pankaj Bansal versus Union of India and Others, reported in Criminal Appeal Nos. 3051‑3052 of 2023, can be made applicable to the present case., The substratum of the arguments addressed on behalf of the petitioner revolves around the ratio recently laid down by the Supreme Court of India in Pankaj Bansal Vs. Union of India & Ors, reported in 2023 SCC OnLine SC 1244. According to the petitioner, although the aforesaid case was in the context of Sections 19(1), 19(2) and 45 of the Prevention of Money‑Laundering Act, 2002 (PMLA) read with Article 22(1) of the Constitution of India, the language of Section 19 of PMLA is pari materia with Section 43B of the Unlawful Activities (Prevention) Act, 1967 (UAPA), and the ratio would be squarely applicable to the facts of the present case., Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This fundamental right requires that the mode of conveying the information be meaningful. Section 45 of the PMLA enables a person arrested under Section 19 to seek bail, but only if two conditions are satisfied: (i) the Court, after giving an opportunity to the public prosecutor to oppose, is satisfied that there are reasonable grounds to believe the arrested person is not guilty; and (ii) the person is not likely to commit any offence while on bail. To meet this requirement, the arrested person must be aware of the grounds on which the authorized officer arrested him and the basis for the officer's belief of guilt., Section 19 of the PMLA makes it mandatory for the authorized officer to record in writing the reasons for forming the belief that the person proposed to be arrested is guilty of an offence punishable under the Act. Section 19(2) requires the officer to forward a copy of the arrest order along with the material in his possession to the Adjudicating Authority in a sealed envelope. Although it is not necessary for the arrested person to be supplied with all material forwarded to the Adjudicating Authority, he has a constitutional and statutory right to be informed of the grounds of arrest, which are compulsorily recorded in writing by the authorized officer., There is no valid reason why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception. If the grounds are only orally read out, the situation reduces to the word of the arrested person against the word of the authorized officer, which may lead to disputes. Non‑compliance would entail release of the arrested person straightaway, as held in V. Senthil Balaji. Providing the written grounds under due acknowledgment avoids this precarious situation., The constitutional objective of furnishing the written grounds is to enable the arrested person to seek legal counsel and present a case before the Court under Section 45 to seek bail. In V. Senthil Balaji, the grounds of arrest ran to six pages. In the present case, the grounds have not been produced before this Court, and the claim that they were produced at the time of remand does not serve the intended purpose. A person who has just been arrested is unlikely to be in a calm state of mind to remember lengthy oral statements, rendering the protection under Article 22(1) and Section 19(1) nugatory if only oral communication is permitted., The grounds of arrest recorded by the authorized officer are personal to the arrested person and should not risk divulging sensitive investigative material. If any sensitive material is present, the officer may redact it before furnishing the copy to the arrested person, thereby safeguarding the investigation., On the above analysis, to give true meaning to the constitutional and statutory mandate of Section 19(1) of the PMLA, a copy of the written grounds of arrest must be furnished to the arrested person as a matter of course and without exception. The decisions of the Delhi High Court in Moin Akhtar Qureshi and the Bombay High Court in Chhagan Chandrakant Bhujbal, which hold to the contrary, do not lay down the correct law. In the present case, the ED's Investigating Officer merely read out the grounds of arrest and left it at that, which is disputed by the appellants. Such communication is inadequate to fulfil compliance with Article 22(1) of the Constitution and Section 19(1) of the PMLA, and therefore the arrests cannot be sustained., It is appropriate to extract the relevant statutory provisions: Section 19(1) & (2) of the Prevention of Money‑Laundering Act, 2002; Section 43A & 43B of the Unlawful Activities (Prevention) Act, 1967; and Article 22(1) of the Constitution of India. Section 19(1) empowers the Director, Deputy Director, Assistant Director or any other officer authorized by the Central Government to arrest a person on the basis of material in his possession, provided the reason for such belief is recorded in writing, and to inform the person of the grounds for arrest as soon as possible. Section 19(2) requires forwarding a copy of the arrest order and material to the Adjudicating Authority in a sealed envelope. Section 43A empowers any officer of the Designated Authority to arrest a person or search a place when there is reason to believe an offence under the UAPA has been committed. Section 43B mandates that any person arrested or article seized under Section 43A be forwarded without unnecessary delay to the officer‑in‑charge of the nearest police station, and that the receiving authority take necessary measures in accordance with the Code of Criminal Procedure. Article 22(1) provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice., A minute scrutiny of the aforesaid provisions brings out the following aspects: (i) Article 22(1) requires that the grounds of arrest be communicated to the arrestee as soon as may be, which the Supreme Court has interpreted to mean within a reasonable period, certainly not beyond 24 hours, as per sections 56 and 57 of the Criminal Procedure Code, 1973. Detention beyond 24 hours without a magistrate's order is impermissible, and communication of grounds beyond that period defeats the purpose of the constitutional guarantee. (ii) Section 50 of the Criminal Procedure Code, 1973 mandates that the arrestee be communicated the grounds of arrest forthwith; the use of the word \shall\ makes this provision mandatory. (iii) The right of the arrestee to consult and be defended by a legal practitioner of his choice is reinforced by Section 41D of the Criminal Procedure Code, 1973, which aligns with the principles enshrined in Article 22. (iv) These principles are reiterated in Part E of the Delhi High Court Rules titled \Instructions to Criminal Courts in Delhi\ (Vol. III of High Court Rules and Orders), particularly Rule 12 of Part B of Chapter 11 relating to remands to police custody, which obliges the magistrate to grant sufficient time for counsel to appear and argue the matter., In summary, the statutory and constitutional framework mandates that the arrested person must be furnished with a written copy of the grounds of arrest without delay, must be produced before a magistrate within 24 hours, and must be allowed to consult and be defended by an advocate of his choice. Non‑compliance with these requirements renders any arrest, detention, or remand unlawful.
id_648	1	The Punjab Government issued a circular (Letter No. 6091‑J‑36/39829 (H. Judl.), dated 19 December 1936) to all District Magistrates in the Punjab providing guidance on remands. Before a remand is granted, the Magistrate must inform the accused that he is a Magistrate, that a remand has been applied, and must ask whether the accused has any objection to the remand. The order granting the remand should be written at the time it is announced, in the presence of the accused. If the accused wishes to be represented by counsel, the Magistrate should allow time for counsel to appear and argue the matter before him, and may grant a temporary remand until arguments are heard., The Punjab Government also instructed that an accused person should not be removed to a place that is inaccessible or unknown to his friends or counsel. Information regarding his place of confinement must at all times be given to his friends on their application, and the prisoner must be informed that he is entitled to the assistance of counsel and to communicate with his relations and friends. Rule 12 of Part B of Chapter 11 of the Delhi High Court Rules reiterates the right of the arrestee to be represented by an advocate at the time of remand proceedings., The Prevention of Money Laundering Act, 2002 (PMLA) contains provisions that are relevant to the present case. Section 19(1) provides that an authorized officer who, on the basis of material in his possession, has reason to believe that any person is guilty of an offence, may arrest such person and shall, as soon as may be, inform him of the grounds of arrest. The language of section 19(1) of the PMLA is similar to section 43B of the Unlawful Activities (Prevention) Act (UAPA) but differs in the inclusion of the words ‘material in his possession’ and ‘recorded in writing’. The Supreme Court has held that courts cannot read into a statute words that have been deliberately omitted; consequently, there is no mandate in section 43A of the UAPA for an officer to record in writing the reason for belief based on material in his possession., Section 19(2) of the PMLA requires the authorized officer, immediately after arrest under section 19(1), to forward a copy of the order together with the material in his possession to the Adjudicating Authority, which shall retain such order and material for the period prescribed. Thus, for an arrest under the PMLA, the officer must have material in his possession giving reasons to believe, and those reasons must be recorded in writing before the arrest. If such reasons are not recorded in writing and made available to the officer, the arrest would be void ab initio. No such provision exists in section 43B of the UAPA, where reasons to believe for the purpose of arrest need not be recorded in writing. Therefore, the provisions of sections 19(1) and 19(2) of the PMLA are not pari materia with sections 43A and 43B of the UAPA., The Supreme Court, in the judgment of Pankaj Bansal, considered the effect of sections 19(1) and 19(2) of the PMLA on the right of an arrestee to be furnished with written grounds of arrest at the time of arrest. The Court observed that authorities under the PMLA were providing grounds of arrest in varied manners—some orally, some by reading them out, and some in writing. After examining the provisions, the Court concluded that it was incumbent upon the authorities to record the reasons for arrest in writing as required by section 19(1). The Court also noted that non‑compliance with section 19 of the PMLA could attract action under section 62 of the PMLA. Moreover, the Court held that written communication of the grounds of arrest serves the constitutional purpose of Article 22(1) and facilitates the arrestee’s right to obtain bail. The Court allowed that sensitive material in the grounds of arrest could be redacted to protect the investigation, but the written communication must nevertheless be provided to the arrested person as a matter of course., The Unlawful Activities (Prevention) Act does not contain a statutory obligation analogous to section 19 of the PMLA, and therefore the ratio of the Supreme Court in Pankaj Bansal cannot be squarely applied to cases arising under the UAPA. The preambles of the two statutes illustrate their distinct purposes. The PMLA’s preamble states that the Act is intended to prevent money laundering and to provide for confiscation of property derived from or involved in money laundering. The UAPA’s preamble declares that the Act is enacted to prevent unlawful activities threatening the integrity and sovereignty of India and to deal with terrorist activities, reflecting a focus on national security. Consequently, the sensitivity of information gathered under the UAPA is of greater significance to national security than the financial‑crime focus of the PMLA, and the Supreme Court’s ratio in Pankaj Bansal, which was based on the PMLA, cannot be extended mutatis mutandis to UAPA cases., Nevertheless, the Constitution requires that grounds of arrest be communicated to the arrestee within twenty‑four hours of arrest, although the UAPA does not mandate that such communication be in writing. In view of the Supreme Court’s analysis in Pankaj Bansal and the stringent provisions of the UAPA, it would be advisable for the respondent to provide written grounds of arrest, with any sensitive material redacted, to avoid challenges to the arrest., It is settled law that judicial judgments are not statutes and must be applied only after considering the factual matrix of the case. The Supreme Court has warned that courts should not rely on decisions without discussing how the facts of the present case fit those of the precedent. Observations in judgments such as Commissioner of Central Excise, Bangalore v. Sri Kumar Agencies & Ors. (2009) 1 SCC 469 and Goan Real Estate and Constructions Limited & Another v. Union of India & Others (2010) 5 SCC 388 emphasize that judgments must be read in their full context and not as isolated propositions., Senior Counsel Mr. Kapil Sibal and Mr. Dayan Krishnan, appearing on behalf of the petitioner, contend that the arrest is illegal because written grounds of arrest were not conveyed at the time of arrest or thereafter, and that the remand order dated 04 October 2023 violates Article 22 of the Constitution and the Delhi High Court Rules. They rely on the Supreme Court’s judgment in Pankaj Bansal, asserting that sections 19(1) and 19(2) of the PMLA are pari materia with section 43B of the UAPA, and therefore the ratio of Pankaj Bansal is binding on the respondent., The learned Senior Counsel also argue that the remand order is defective because the petitioner was deprived of counsel of his choice at the time the remand application was considered, the order was passed without hearing the counsel’s objections, and the order was dated 06:00 A.M. on 04 October 2023 before the counsel’s objections were received at 08:12 A.M. They further contend that the order contains no reference to the case diary, no recorded arguments or objections, and includes an interpolated sentence about sending the remand application through WhatsApp, which they describe as arbitrary and indicative of judicial indiscipline. Moreover, they claim that the remand application does not contain the grounds of arrest, and the order itself lacks any reasoning or reference to the facts of the FIR., Relying on the judgments in Pankaj Bansal, In Re Madhu Limaye (1969) 1 SCC 292, and V. Senthil Balaji (2023) SCC OnLine SC 934, the Senior Counsel submit that the petitioner is entitled to immediate release either because written grounds of arrest were not furnished or because the remand order is illegal and unlawful., The Solicitor General of India, Mr. Tushar Mehta, appearing for the respondent, argues that the controversy centers on (i) whether the arrest complies with law and (ii) whether the remand order dated 04 October 2023 complies with law, rules and procedures. He states that the offences alleged against the petitioner relate to the stability and integrity of the country and therefore fall under the Unlawful Activities (Prevention) Act, which is a stringent law dealing with national security. He contends that section 43B of the UAPA does not require the grounds of arrest to be supplied in writing, and that the phrase ‘as soon as may be’ in that provision does not impose a specific time limit. He further relies on the Supreme Court’s interpretation in Abdulla Kunhi that the Constitution does not prescribe a fixed period for informing the grounds of arrest, provided the requirement is not neglected., The Solicitor General also points out that the petitioner was virtually informed of the grounds of arrest through the Memo of Arrest, which was signed by the petitioner and a family member, and that the grounds were also mentioned in the remand application served on counsel within twenty‑four hours of arrest. He emphasizes that the PMLA’s requirement of written grounds of arrest is distinct from the UAPA, and that the Supreme Court’s judgment in Pankaj Bansal, although rendered on 03 October 2023, was uploaded on 04 October 2023 after the petitioner’s arrest, so the respondent could not be deemed bound by it at the time of arrest.
id_648	2	State of Punjab vs. Baldev Singh reported in (1999) 6 SCC 172, wherein it was held that the oral communication of grounds of arrest would be a sufficient compliance of Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985. According to learned Senior Counsel, the respondent had in fact communicated the grounds of arrest to the petitioner which is a sufficient compliance of Section 43B of the Unlawful Activities (Prevention) Act., That apart, learned Senior Counsel also referred to the word henceforth as used by the Supreme Court of India in Pankaj Bansal (supra) in Para 39, to submit that the said direction is prospective and not retrospective. On that basis, he submits that the ratio laid down in Pankaj Bansal (supra) even otherwise would not be applicable to the facts of the present case. In support of the said contention, learned Senior Counsel referred to the definition contained in Black's Law Dictionary., That so far the ratio laid down in In Re Madhu Limaye (supra) is concerned, learned Senior Counsel submits the same is clearly distinguishable on facts. In that, admittedly the grounds of arrest were never furnished to the petitioners at all, whereas in the present case the same were duly informed to the petitioner at the time of arrest. To substantiate the above argument, learned Senior Counsel relied upon Para 1 and particularly Para 9 of the judgment in In Re Madhu Limaye (supra)., On instructions, learned Senior Counsel submits that the time of 6:00 A.M. as entered in the remand order pertains to the time when the petitioner was produced before the learned Special Judge and not the time when the remand order was passed and as such, the order is in accordance with law and procedures prescribed., So far as the allegation of interpolation is concerned, learned Senior Counsel submits that such insinuation against the judicial officer without any supporting affidavit or evidence is in poor taste. He further submits that the words pointed out by learned Senior Counsel for the petitioner only describe that the counsel for the petitioner was indeed supplied a copy of the application for remand. This fact that the remand application was furnished to the counsel for the petitioner is not disputed at all. Thus, it was only a recording of a fact., Learned Senior Counsel also submits that even if the said remand order is held to be illegal, that would not ipso facto entitle the petitioner to be released; rather the petitioner would only be further detained in judicial custody. He further submitted that the petitioner would be entitled to be considered for release on bail thereafter., On the basis of the above submissions, learned Senior Counsel submits that no grounds for interference are made out and the petitions be dismissed., In rebuttal, Mr. Kapil Sibal, learned Senior Counsel submits as under:, The word henceforth need not necessarily always imply the decision to apply prospectively, but in given cases and in a fact situation, may apply retrospectively too. According to learned Senior Counsel, if the word henceforth used in Pankaj Bansal (supra) was only to mean prospective application of the direction, then there was no requirement for the Supreme Court of India to make the same applicable to the case of Pankaj Bansal and ultimately release him on the ground that no grounds of arrest were communicated in writing to Bansal. On that basis, he submits that the law as declared by the Supreme Court of India in Pankaj Bansal (supra) would be applicable retrospectively., In addition thereto, learned Senior Counsel submits that the Supreme Court of India has not laid down any new law but has only clarified what the law already enunciated and was in existence which was to be scrupulously followed. Thus, the ratio in Pankaj Bansal (supra) would be applicable with retrospective effect., The Supreme Court of India had pronounced the judgement in Pankaj Bansal (supra) in open court on 03.10.2023 and as such, the respondent cannot feign ignorance of law declared by the Supreme Court of India. According to him, the argument that the respondent was not a party in Pankaj Bansal (supra) is irrelevant, as no one can be excused on the ground of ignorance of law., Learned Senior Counsel vehemently contended that the time of 6:00 A.M. mentioned in the order of the remand dated 04.10.2023 is indicative of the time when the remand order was passed and not the time when the petitioner was produced before the learned Special Judge. He draws attention to Rule 12(a) of Part B of Chapter 11 of Delhi High Court Rules, to submit that the said rule mandates that the Magistrate enters the time when the remand order is passed and does not refer to the time when the petitioner is produced. As such, the remand order having been passed at 6:00 A.M. vitiates the order of remand itself., Learned Senior Counsel categorically submits that even on facts, not a single penny was received by the petitioner from any source in China and thus, the entire basis of the prosecution's case is based on irrelevant factors., Additionally, Mr. Dayan Krishnan, learned Senior Counsel again referred to the judgement of the Supreme Court of India in In Re Madhu Limaye (supra) particularly to para 14, to submit that the violation of the provisions of Article 22(1) of the Constitution of India would entail immediate release of the petitioner. To the same extent, learned Senior Counsel also relies upon the judgment of V. Senthil Balaji (supra) to submit that in the said case too, the Supreme Court of India had ordered immediate release of the petitioner whilst quashing and setting aside arrest order, arrest memos along with the orders of remand., This Court has minutely scrutinized the pleadings and the various documents annexed therewith and considered the extensive arguments addressed by learned Senior Counsel as also the learned Solicitor General of India on behalf of the parties., At the outset, it would be relevant to consider the facts as stated in the present petition by the petitioner. It is stated that the raid was conducted at the residential and official premises of the petitioner on 03.10.2023 at around 6-6:30 A.M. The raid continued throughout the day and it was only at 5:45 P.M. (as per Memo of Arrest) on 03.10.2023 that the petitioner was arrested. However, as per the averments in the petition, the petitioner himself states that he was informed of having been arrested at 7 P.M. on 03.10.2023. The petitioner also admits that he was briefly shown certain documents at the time of arrest, which were identified as the Memo of Arrest and a Personal Search Memo, and was made to sign the same without giving him any opportunity to read the contents., The petitioner also admits that he was permitted to meet his counsel briefly on 03.10.2023 at the Special Cell Office at Lodhi Road but was not permitted to sign any Vakalatnama nor was the counsel provided the copy of the First Information Report., According to the petitioner, on the wee hours of 04.10.2023, the petitioner was woken up and taken to the residential premises of the learned Special Judge at around 6-6:30 A.M. It is contended by the petitioner that his counsel or family members were not informed about the remand proceedings and it was only at around 7 A.M. when the remand proceedings were getting concluded that he made a request to the learned Special Judge for the presence of his counsel to consult and make submissions on his behalf. It is the contention of the petitioner that at around 7 A.M., his family member was apprised of the remand proceedings on his mobile phone with a request to inform the petitioner's counsel. Upon receiving such information, the counsel immediately contacted the Investigating Officer and, on being told about the remand proceedings, he immediately objected to the same and requested that he be permitted to reach the residence of the learned Special Judge and take part in the remand proceedings physically., The petitioner admits that the remand application was received by his counsel through WhatsApp whereupon the counsel responded that the petitioner would be filing an application for opposing the remand of the petitioner which was sent around 8 A.M. on 04.10.2023 on the Investigating Officer's phone. Upon the direction of the Investigating Officer, the said applications were provided to the Naib Court around 8:12 A.M., It is then contended that shockingly, the petitioner's counsel was informed that the impugned order was already passed remanding the petitioner to 7 days police custody. It is also further contended that permission was obtained from the learned Special Judge by the counsel to meet the petitioner on 04.10.2023, and had met his counsel on the same evening when he informed his counsel about the events that transpired during the remand proceedings. In the same breath, petitioner also contended that the counsel for the petitioner who wished to appear physically to oppose the remand application had to join the remand proceedings through telephone call on such short notice., Adverting to the aforesaid admitted facts as averred in the petition, the entire arguments on facts in respect of the arrest and the subsequent remand proceedings appear to be clearly at variance. So much so, they are at times contradictory. The petitioner was at pains to demonstrate how the arrest itself was illegal, in that the grounds of arrest were not informed or conveyed to him at the time of arrest. Whereas, it is the categorical stand of the respondent that not only the grounds of arrest were informed to the petitioner orally, the same was virtually conveyed in writing via the Memo of Arrest. This fact has been asserted by the respondent in the counter affidavit signed and executed by an officer of the rank of Deputy Commissioner of Police., This Court has also considered the contents of the remand application and it appears that the substratum of the allegations which would comprise the reasons for arrest is indeed contained in the said application. It is also beyond dispute that the said application in writing was furnished to the counsel for the petitioner during the remand proceedings and within 24 hours of his arrest. It is not disputed from the above admitted facts that the counsel for the petitioner had also participated in the remand proceedings and had opposed the same, though telephonically directly to the learned Special Judge. This is also specifically noted in the impugned remand order., The contention regarding the remand order already having been passed at 6 A.M., the subsequent furnishing of the remand application and oral telephonic hearing provided to the counsel being an empty formality is also contradicted by the admissions of the petitioner in his petition. The petitioner himself submits that he was produced before the learned Special Judge between 6-6:30 A.M. and that it was at around 7 A.M. when, according to the petitioner, the remand proceedings were getting concluded, that he sought and was granted permission to contact his counsel through a family member. That apart, as already observed above, the counsel was provided with the remand application as also was heard, though telephonically by the learned Special Judge before passing the remand order., It is also intriguing to note that the petitioner had indeed met his counsel in the evening on 03.10.2023 after he was arrested, yet there is no averment to state that the petitioner or his counsel had objected to such arrest on the ground of not having been informed of the grounds of his arrest. It is intriguing that the petitioner admits to have met his counsel in the evening hours of 04.10.2023 also, albeit after seeking permission from the learned Special Judge for such meeting, yet there is no averment on record to demonstrate what effective steps were taken by the counsel for the petitioner even after that. This petition was filed on 06.10.2023, almost 3 days after the date of arrest and 2 days after the remand proceedings and there is no explanation forthcoming on that count., What is even more intriguing is the fact that the petitioner contends that the copy of the First Information Report was furnished to him only after an application making such request was filed before the learned Special Judge who allowed the same on 05.10.2023, yet there is not a single whisper as to what transpired in respect of the application raising objections against the remand stated to have been filed on 04.10.2023. At this juncture, it would be relevant to extract Para 11 of the application on behalf of the petitioner opposing the remand which is annexed as Annexure P-5 of the paperbook which is as follows: That further, the allegations in the remand application are already being investigated by both Economic Offences Wing and Enforcement Directorate since over 3 years and therefore a second First Information Report on the same allegations and the consequent arrest of the Applicant is completely illegal and is in violation of the principles repeatedly laid down by the Hon'ble Supreme Court of India that a second First Information Report on same allegations/transaction is not maintainable in law. In case the argument of the petitioner about non-furnishing of grounds of arrest is taken to be true, then it is inexplicable as to how the petitioner had, on 04.10.2023, even before receiving the copy of the present First Information Report, gained the knowledge that the present First Information Report was in the nature of a second First Information Report registered on the basis of the same allegations and transactions which were leveled against him by the Economic Offences Wing/Enforcement Directorate in the previous First Information Report regarding offences under the Prevention of Money Laundering Act., That apart there is nothing placed on record to demonstrate that the timelines as averred in the petition are factually correct in nature or even to suggest otherwise., That so far as the judgement in the case of In Re Madhu Limaye (supra) is concerned, there are two distinguishing features which would make the ratio laid down therein inapplicable to the present case. Firstly, in the said case the grounds of arrest were never conveyed to the arrestees and the same was not controverted by the prosecution. Secondly, in In Re Madhu Limaye (supra) the offence alleged against the petitioners therein was in respect of Section 188 of the Indian Penal Code, 1860, which contemplates two types of punishments which can be imposed on such violation which are one month or with fine which may extend to rupees two hundred, or with both and the other being imprisonment which may extend to six months or with which may extend to rupees one thousand, or with both. In Madhu Limaye's case it appears there were no orders of disobedience whereof would entail punishment under section 188 of the Indian Penal Code. As such the case of the petitioner cannot be equated with the case of In Re Madhu Limaye (supra)., Keeping in view the gravity and the seriousness of the offences as also considering the fact that the individual right of life and personal liberty and freedom guaranteed under the Constitution of India are affected, it appears appropriate to also consider as to where the Constitutional Courts are to lean, in such circumstances. On this aspect, the judgement of the Supreme Court of India in Ayya @ Ayub vs. State of U.P. & Another reported in (1989) 1 SCC 374 needs to be appreciated. Personal liberty, is by every reckoning, the greatest of human freedoms and the laws of preventive detention are strictly construed and a meticulous compliance with the procedural safeguards, however technical, is strictly insisted upon by the courts. The law on the matter did not start on a clean slate. The power of courts against the harsh incongruities and unpredictabilities of preventive detention is not merely \a page of history\ but a whole volume. The compulsions of the primordial need to maintain order in society, without which the enjoyment of all rights, including the right to personal liberty, would lose all their meaning are the true justifications for the laws of preventive detention. The pressures of the day in regard to the imperatives of the security of the State and of public order might, it is true, require the sacrifice of the personal liberty of individuals. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of public order or to the security of State provides grounds for a satisfaction for a reasonable prognostication of a possible future manifestations of similar propensities on the part of the offender. This jurisdiction has been called a jurisdiction of suspicion; but the compulsions of the very preservation of the values of freedom, or democratic society and of social order might compel a curtailment of individual liberty. \To lose our country by a scrupulous adherence to the written law\ said Thomas Jefferson \would be to lose the law itself, with life, liberty and all those who are enjoying with us; thus absurdly sacrificing the end to the means\. This is, no doubt, the theoretical justification for the law enabling preventive detention. In the present case too, the offences which are alleged, fall within the ambit of the Unlawful Activities (Prevention) Act, 1967 and directly impact the stability, integrity and sovereignty of the country and are of utmost importance since they would affect the national security., Thus, after examining the entire issue in the right perspective, it appears as of now that the grounds of arrest were indeed conveyed to the petitioner, as soon as may be, after the arrest and as such, there does not appear to be any procedural infirmity or violation of the provisions of Section 43B of the Unlawful Activities (Prevention) Act or Article 22(1) of the Constitution of India and as such, the arrests are in accordance with law., Having regard to the admission of facts, contradictions between the pleadings and the arguments addressed before this Court in respect of the impugned remand order, this Court is of the considered opinion that the remand order is sustainable in law in the given circumstances., The petition, being devoid of any merit, along with pending applications, is dismissed., By way of the present petition, the petitioner seeks the following reliefs: (A) Issue an order or direction setting aside the order dated 04.10.2023 passed by the court of Dr. Hardeep Kaur, Learned Additional Sessions Judge -02, Patiala House Court, New Delhi in First Information Report No. 224 of 2023, remanding the petitioner to police custody; AND (B) Issue an order or direction for immediate release of the petitioner., Facts as culled out from the petition filed by the petitioner commencing from Para 15 of the petition and are germane to the present dispute, are as follows:, It is respectfully submitted that an First Information Report bearing No. 224/2023 was apparently registered on 17.08.2023 against, inter alia, the petitioner under Sections 13, 16, 17, 18, and 22 of the Unlawful Activities (Prevention) Act, 1956, and Sections 153A and 129B of the Indian Penal Code, at the Police Station, Lodhi Road, Special Cell, Delhi. The registration of the said First Information Report was not within the knowledge of the petitioner until his subsequent arrest., On 03.10.2023, at around 6:30 A.M., around 10-15 police officials belonging to different branches came to the house of the petitioner. They did not provide any intimation as to why they were present, and merely informed that it is in relation to the Unlawful Activities (Prevention) Act. The police officials questioned the petitioner until around 3 P.M. at his house, and thereafter he was taken to Police Station Lodhi Road and subsequently arrested by the investigating agency. They also seized the phone, laptop, hard disk, and pen drives belonging to the petitioner but did not provide any seizure memo regarding the same., Pertinently, despite the petitioner's arrest and despite repeated requests, neither has a copy of the concerned First Information Report been uploaded on the website of the Delhi Police nor has he been supplied with a copy of the same till date, as is his right under law. Moreover, the petitioner has never been informed of the grounds for arrest as is mandated under Article 22 of the Constitution of India read with Section 43B(1) of the Unlawful Activities (Prevention) Act, 1967., On 04.10.2023, at about 7 A.M., the counsel for co-accused, Mr. Prabir Purkayastha received a telephone call informing that the co-accused and the petitioner had been produced before the Learned Special Judge at her residence, and that the counsel should immediately come to the residence. No such information was provided to any of the family members of the petitioner., The counsel for the co-accused requested the Learned Special Judge to defer the proceedings till 9 A.M. to enable the accused persons to be properly represented by counsel, as is their constitutional right under Article 22 of the Constitution. However, the said request was declined, the counsel for the co-accused was provided a copy of application for remand through WhatsApp and the petitioner was remanded to police custody for a period of 7 days, i.e., till 10.10.2023., It is also pertinent to note that the remand order was passed at around 6 A.M., whereas the counsel for the co-accused, Mr. Prabir Purkayastha, was only informed about the proceedings at about 7 A.M., which clearly shows that there was zero representation of the accused in the remand proceedings in clear violation of his constitutional rights under Article 22 of the Constitution., Pertinently, the order dated 04.10.2023 passed by the Learned Sessions Judge erroneously notes that copy of the remand application had already been sent to the petitioner's counsel. However, no copy of the application was shared with the petitioner's counsel by the investigating agency. As a result, the petitioner's counsel was unable to be present at the remand hearing, denying the petitioner an opportunity to effectively oppose the remand., Subsequently, on 04.10.2023, the petitioner filed an application seeking directions to the investigating agency to supply a copy of the First Information Report to the petitioner, and to provide a copy of the grounds of arrest. The Learned Special Judge was pleased to issue notice to the respondent in the application, but deferred its hearing to 05.10.2023., Thereafter, the counsel for the petitioner has obtained a copy of the application for remand filed by the respondent through the counsel of the co-accused., Mr. Rohit Sharma, learned counsel appearing for the petitioner adopts the arguments of the learned Senior Counsel appearing for the petitioner in CRL.M.C. 7278/2023 and addresses the following arguments on merits:, It is submitted that the petitioner is 56 years old and is suffering from a permanent physical disability to the tune of 59% on account of post-polio residual paralysis of both lower extremities as described in the disability certificate duly annexed with the present petition. It is further submitted that presently, the petitioner only performs a limited administrative role, and has no involvement in financial decision making of PPK or any decisions regarding its journalistic content., It is argued on behalf of the petitioner that earlier, he was being summoned and had duly appeared before the concerned authorities on several occasions but never had any apprehension, nor had moved any application for anticipatory bail seeking any interim protection., Learned counsel argues that the petitioner has only been tagged along, clubbed together and roped in the present First Information Report and arrested without providing any legal basis for the same by the prosecuting agency., It is also submitted that the remand application filed by the police, had neither mentioned the case of physical disability of the present petitioner nor mentions the role attributed to the present petitioner, and was more so, pertaining only to the co-arrestee Prabir Purkayastha. Learned counsel further argued that the said remand application does not even specify the reasons for seeking remand of the present petitioner, and therefore, suffers from inherent defect which goes to the root of the matter., Learned counsel further argues that even during remand proceedings, the courtesy information call which was extended to the family member and Mr. Arshdeep Singh Khurana, counsel for the co-arrestee, was not even made to the family member of the present petitioner or his counsel. Learned counsel submits that the present petitioner was therefore, deprived of the constitutional right of representation by a counsel of his own choice., It is vehemently submitted that the remand order was passed at around 6 A.M., whereas the counsel for the co-arrestee, Prabir Purkayastha, was only informed about the proceedings at about 7 A.M., which clearly shows that there was zero representation of the present petitioner in the remand proceedings, which is in clear violation of his constitutional rights under Article 22 of the Constitution., Learned counsel in the same breath argues that the remand order does not even mention the physical circumstances of the present petitioner, and relies upon the judgement of Division Bench of Madras High Court in L. Muruganantham vs. State of Tamil Nadu and Others reported in 2022 SCC OnLine Mad 5879, to submit that the learned Special Judge did not apply his judicial mind to the remand application with respect to the specific case of the present petitioner in terms of role attributed to him, reasons for his remand and his physical circumstances being a differently abled person., Learned counsel lastly submits that the arrest of the petitioner without supplying the grounds of arrest and the subsequent remand order passed thereof is violative of the constitutional mandate of Article 22(1) of the Constitution of India, and therefore is liable to be set aside and the petitioner is entitled for immediate release., Per Contra, Mr. Tushar Mehta, learned Solicitor General, appearing for the respondent submits that his arguments in CRL.M.C. 7278/2023 on the issues of law and facts may be taken into consideration along with the contents of the counter affidavit filed in present case, while adjudicating the present petition., Keeping in view the fact that this Court in CRL.M.C. 7278/2023 titled Prabir Purkayastha Vs. State NCT of Delhi has already held that the ratio laid down by the Supreme Court of India in Pankaj Bansal (supra) is not applicable to the facts and the law obtaining in that petition, the challenge to the arrest of the present petitioner on the grounds of non-furnishing of grounds of arrest are, similarly, held to be untenable and is accordingly rejected., The issue on challenge to the impugned order of remand as to whether the same was passed at 6:00 A.M. or subsequently has already been dealt with by this Court in the case of the co-arrestee, and as such is held not to be tenable since the order of the learned Special Judge records that the counsel had appeared for the accused persons. Even the remand application was also furnished to the counsel who, it appears from the said order itself, was representing both the present petitioner and co-arrestee Prabir Purkayastha., Firstly, there are no details to the averments made by the petitioner in his pleading as to how the petitioner has been able to lay his hands on either the impugned order of remand or the remand application filed by the respondent before the learned Special Judge, in case the version of the petitioner that there was zero representation on his behalf, at the time of arrest or remand proceedings is to be believed., Secondly, the petition is completely silent as to what steps were taken by him or any of his family members to assail or raise objections against the arrest, or the order of remand till the present petition was filed. It is also not palatable that the petitioner had filed an application before the learned Special Judge seeking a copy of the First Information Report on 04.10.2023, which is stated to have been taken up for consideration on 05.10.2023, yet there is not even a whisper in the said application in respect of either the petitioner's alleged illegal arrest or alleged illegal remand order having been passed without any representation on his behalf. This creates a doubt in the mind of this Court as to whether the version of the petitioner is true at all., Had there been any truthfulness in the version of the petitioner, it is unimaginable that no grievance at all would be made out of an illegal remand order while filing an application seeking a copy of the First Information Report on the very same day when the remand order was passed i.e., 04.10.2023.
id_648	3	It is also surprising to note that even at the time of addressing the arguments seeking copy of the FIR, there is not even a single argument or grievance placed by the counsel for the petitioner before the very same learned Special Judge who had passed the impugned remand order dated 04.10.2023, regarding any illegal arrest or illegal remand order. Considering the lack of material particulars on facts, it appears necessary to appreciate the law laid in such situations as per the judgments rendered by the Supreme Court of India, which are as under: Moti Lal Songara versus Prem Prakash and Another reported in (2013) 9 1. Leave Granted., The factual score of the case in hand frescoes a scenario and reflects the mindset of the first respondent, which would justifiably invite the statement “court is not a laboratory where children come to play”. The action of the respondent or accused depicts an attitude where one calculatedly conceives the concept that he is entitled to play a game of chess in a court of law, and the propriety, expected norms from a litigant and the abhorrence of courts to the issues of suppression of facts can comfortably be kept at bay. Such a proclivity appears to have weighed uppermost in his mind on the basis that he can play in aid of technicalities to his own advantage and the law, in its essential substance, and justice, with its divine attributes, can unceremoniously be buried in the grave. K.D. Sharma versus Steel Authority of India Limited and Others, reported in 38., As per settled law, the party who invokes the extraordinary jurisdiction of the Supreme Court of India under Article 32 or of a High Court under Article 226 of the Constitution is supposed to be truthful, frank and open. He must disclose all material facts without any reservation even if they are against him. He cannot be allowed to play “hide and seek” or to “pick and choose” the facts he likes to disclose and to suppress or conceal other facts. The very basis of the writ jurisdiction rests in disclosure of true and complete correct facts. If material facts are suppressed or distorted, the very functioning of writ courts and exercise would become impossible., The petitioner must disclose all the facts having a bearing on the relief sought without any qualification. This is because “the court knows law but not facts”. Keeping in view the observations so made and the law as laid down, while considering the lack of facts and material particulars in the present petition, this Supreme Court of India is of the considered opinion that the present petitioner is not entitled to any relief as sought in the present petition., So far as the arguments of the petitioner being a differently abled person and suffering from physical disability to the extent of 59 % and being covered under the provisions of The Rights of Persons With Disabilities Act, 2016 are concerned, keeping in view the fact that serious offences affecting the stability, integrity, sovereignty and national security have been alleged against the petitioner, this Supreme Court of India is not
id_650	0	The petitioner is before the Sessions Court calling into question the order dated 07-01-2023 passed by the Additional City Civil and Sessions Judge, First Tier Special Court I, Bengaluru in Special Criminal Court No. 2261 of 2022, which rejected the application filed by the petitioner under Section 173(8) of the Code of Criminal Procedure and seeks a direction for conduct of further investigation of the crime., The petitioner is the wife of Abhinav Lal, the accused in Special Criminal Court No. 2261 of 2022. The accused and the petitioner are husband and wife. The crime was registered by the de facto complainant against the petitioner on 24-08-2022, bringing out certain grave allegations. The complainant alleges that the accused/husband, being sexually perverted, was addicted to watching pornography involving children, including father‑daughter and mother‑son scenarios. It is alleged that in September‑October 2020 he made his four‑year‑old daughter stand naked while he himself stood naked and bathed by touching the private parts of the minor child. It is further alleged that the accused insisted on sexual intercourse with the petitioner in the presence of the minor child, and when the petitioner opposed, she was hurled with blows or abuses between 23-02-2022 and 27-02-2022. The accused is also alleged to have taken the minor daughter to Mangalore for a trip and repeated the same acts there, apparently clicking some pictures of the minor child., The petitioner states that after returning from the trip, the child started behaving differently, staring at the private parts of others including the petitioner and insisting that the petitioner take photographs of her while she was bathing. It is averred that this behavior was developed by the father/accused. The accused allegedly accessed the iPad which the minor daughter used for entertainment, loaded child pornography onto it and compelled her to watch the material. On the basis of these allegations, the wife registered the crime on 24-08-2022 for offences punishable under Sections 8, 10 and 12 of the Protection of Children from Sexual Offences Act, 2012. The police, after investigation, filed a charge sheet and the matter stood adjourned to a stage of hearing before charge., The charge sheet was laid before the concerned Court on 22-10-2022, which took cognizance of the offence based upon the charge sheet and issued summons. On 12-12-2022 the petitioner made an application before the concerned Court under Section 173(8) of the Code of Criminal Procedure, seeking a direction to the respondent Police Investigating Officer for further investigation. The learned Sessions Judge dismissed the application seeking further investigation. The dismissal of the said application is what drives the petitioner to this Court in the present writ petition., Heard Sri Sandesh J. Chouta, learned senior counsel appearing for the petitioner, and Smt. K. P. Yashodha, learned High Court Government Pleader appearing for the respondent., The learned senior counsel would take this Court through the contents of the charge sheet to demonstrate the lacunae in investigation. To buttress his submission that it is a shoddy investigation conducted by the Investigating Officer, he has quoted several instances which ought to have been part of the charge sheet but are deliberately missing, and therefore the case requires further investigation. Though the pleading is only with regard to further investigation, the learned senior counsel emphasizes that it should be by a different Investigating Officer., The learned High Court Government Pleader, while seeking to support the investigation conducted and the charge sheet filed by the police before the concerned Court, submits that if this Court were to direct further investigation, the same would be carried out in accordance with law., The Court has given anxious consideration to the submissions made by the respective learned counsel and has perused the material on record., The afore‑narrated facts are not in dispute and would not require any reiteration. Certain dates need reiteration. On 24-08-2022 a crime was registered by the wife against the husband for offences punishable under Sections 8, 10 and 12 of the Protection of Children from Sexual Offences Act. The accused was arrested on 23-09-2022 at 10:15 a.m. and was produced before the concerned Court at 4:30 p.m. The police never sought custodial interrogation of the husband notwithstanding the heinous offences narrated. About three weeks later, the charge sheet was filed by the police. On the ground that the charge sheet was filed, the accused was enlarged on bail. The aforesaid dates indicate that the investigation was conducted in a mortal hurry only to file a charge sheet before the concerned Court. The summary of the charge sheet as filed against the accused reads as follows: At the stage of hearing before the charge, the petitioner filed an application before the concerned Court under Section 173(8) of the Code of Criminal Procedure seeking further investigation. The application narrates minute details which have gone missing in the charge sheet or the documents appended to the charge sheet. The concerned Court rejected the application filed by the petitioner seeking further investigation under Section 173(8). The reason for rejection reads as follows:, The Court observed that, although this Court being a Special Court with the power of a Magistrate and also a Sessions Judge has the power to direct further investigation in any criminal case under Section 173(8) of the Code of Criminal Procedure, many grounds urged by the de facto complainant are time‑barred. The complainant alleged that when the accused was produced before the court, the Investigating Officer ought to have taken him into police custody, which he did not do. In the Court’s opinion, taking the accused into police custody is a prerogative right and discretion of the Investigating Officer and no other person has the right to force the Investigating Officer to do so. The Court further held that the complainant’s allegation that the accused possessed two mobile phones and a laptop through which he accessed pornographic websites and made the child see the same, and that these devices were not seized by the police, cannot be acted upon without proof, as seizure is at the discretion of the Investigating Officer. The Court also noted that the production of an incomplete statement of the victim recorded under Section 161 of the Code of Criminal Procedure is within the competence of the Investigating Officer, and that the medical examination report of the victim, as required under the Protection of Children from Sexual Offences Act, 2012, must be conducted in accordance with Central Government guidelines. The Court further stated that the psychologist’s report, alleged to be incomplete, would be examined by the trial court and the prosecution would have to produce the documents during trial., In view of the above discussions and upon considering the provisions of Section 40 of the Protection of Children from Sexual Offences Act, 2012 and Section 301 of the Code of Criminal Procedure, the Court is of the opinion that the victim has every right to participate in each stage of the trial, but neither the victim nor her parents have prerogative rights over the Public Prosecutor. Section 40 of the Protection of Children from Sexual Offences Act provides the right to the victim to appoint counsel on her behalf, who can act only in accordance with the proviso to Section 301 of the Code of Criminal Procedure. A person who files an application under Section 301 can himself or herself act as another Public Prosecutor, but a court cannot entertain two Public Prosecutors in a case. In the present case, the counsel appearing for the victim by filing the present application appears to be acting like a Public Prosecutor, which is not permissible under Section 301. While the counsel may appear and participate in the trial and file written arguments after the prosecution evidence is closed, under Section 301 neither the victim nor her counsel has the right to file any application in a trial or enquiry. Accordingly, the Court answers Point No.1 in the negative., The Court notes that the petitioner has no right to file an application superseding the Public Prosecutor for further investigation. According to the Court, it was the victim who is superseding the Public Prosecutor and acting like a Public Prosecutor, which is not permissible under Section 301 of the Code of Criminal Procedure. The Court therefore considered the grounds on which the petitioner is now seeking further investigation. The petitioner alleges that several incriminating material circumstances against the accused are not forthcoming in the charge sheet filed on 17-10-2022. A perusal of the narration indicates nine rungs of lacunae in the investigation, which are succinctly narrated below., The video‑recorded statement of the victim obtained under Section 26(4) of the Protection of Children from Sexual Offences Act, dated 24-08-2022, clearly naming the accused, is not part of the charge sheet. The statement of the child recorded under Section 161 of the Code of Criminal Procedure on 25-08-2022 contains only a brief account, and the Investigating Officer deliberately omitted incriminating material, making it a truncated statement in the charge sheet. The medical examination report of the victim from St. John’s Hospital, which includes the child’s answers to the doctor’s questions indicating that the father/accused touched her private parts, is not included in the charge sheet. The Investigating Officer did not record or conduct enquiry with the petitioner to substantiate the allegations made in the complaint, and the further statement of the complainant was not recorded. Although the Investigating Officer was made aware that child pornography and nude photos of the child were in the accused’s laptop and that he used two mobile phones for the same purpose, neither the laptop nor the mobile phones were seized. The iPad of the child, handed over to the Investigating Officer containing incriminating material, browsing history and login access, was sent to the Forensic Science Laboratory, but the FSL report is not part of the charge sheet and the iPad was not produced before the trial Court. The Investigating Officer did not seek the locations of the laptop and mobiles from which the accused accessed child pornography, and this is absent from the charge sheet. No inquiry was conducted nor statements recorded from other important witnesses such as the maternal grandparents and other relatives who were aware of the husband’s perverted attitude. The psychologist’s detailed report by Ms. Poorvasha Mathur, which addresses the child’s psychological impact, is not part of the charge sheet., The learned senior counsel submits that these nine rungs of lacunae demonstrate a shoddy investigation conducted by the Investigating Officer only to help the accused. On perusal of the charge sheet and the documents appended thereto, all the aforesaid lacunae appear prima facie correct. The deliberate omission of these vital pieces of evidence by the Investigating Officer constitutes a failure of fair investigation. The concerned Court ought to have examined the material brought before it and not reject the application on the ground that the petitioner seeks to become a Public Prosecutor by filing an application for further investigation under Section 173(8) of the Code of Criminal Procedure. In view of the facts and a deeper delving into the matter, the Court, having suo motu powers, should have recognized that a fair trial requires further investigation and should have allowed the application. The order passed by the concerned Court is therefore unsustainable and requires to be set aside., The Court is mindful of the law laid down by the Apex Court in various decisions requiring further investigation in the face of a shoddy investigation. In Uttarakhand v. State, the Court held that the investigating officer and the doctor dealing with a criminal case are obliged to act in accordance with the Police Manual and recognized canons of medical practice, and that a flagrant default or breach of duty can be fatal to the prosecution. The Court emphasized that an investigating officer is completely responsible for the manner and methodology adopted in completing the investigation, and that such defaults cannot be overlooked., The Apex Court in Pooja Pal v. Union of India held that if an appellant is not satisfied with the charge‑sheet submitted by the civil police and CB‑CID and believes further investigation is required, she is at liberty to file an application before the concerned Magistrate to enable the trial court to pass appropriate orders. The Court also observed that the power under Article 226 of the Constitution to direct investigation by the CBI in a cognizable offence cannot be curtailed by any Act of Parliament, and that judicial review is an integral part of the basic structure of the Constitution., The Court further referred to judgments such as Bharati Tamang v. Union of India, where the plea of tardy prosecution and free movement of key accused persons was rejected, and Zahira Habibulla H. Sheikh, which reiterated the duty of the court to ensure fair investigation by remedying deficiencies. In Babubhai v. State of Gujarat, while examining the scope of Section 173(8) of the Code, the Court recalled that both the investigating agency and the courts have a responsibility to ensure that investigation is fair and does not hamper individual liberty except in accordance with law. The Court observed that if an investigation is unfair and deliberately incomplete, the court may direct further investigation, and in exceptional circumstances may order de novo investigation. The Court emphasized that fair investigation is a constitutional right guaranteed under Articles 20 and 21 of the Constitution of India, and that non‑interference by the court in the face of a failed investigation would result in miscarriage of justice. The Court concluded that the power of constitutional courts to direct further investigation or reinvestigation is a dynamic component of judicial review and must be exercised with due care.
id_650	1	Now, so far as the power of the constitutional courts to order further investigation, reinvestigation or de novo investigation even after the charge-sheet is filed and charges are framed is concerned, the following decisions are required to be referred to. In Bharati Tamang v. Union of India (2013) 15 SCC 578 : (2014) 6 SCC (Criminal) 566, after taking into consideration the decisions of this Supreme Court of India in Babubhai v. State of Gujarat (2010) 12 SCC 254 : (2011) 1 SCC (Criminal) 336, paras 40 and 42 and the subsequent decision of this Supreme Court of India in Ram Jethmalani v. Union of India (2011) 8 SCC 1 : (2011) 3 SCC (Criminal) 310 and other decisions on the point, ultimately the principles which are culled out are as under:, From the various decisions relied upon by the petitioner counsel as well as by respondents' counsel, the following principles can be culled out. 1. The test of admissibility of evidence lies in its relevance. 2. Unless there is an express or implied constitutional prohibition or other law, evidence placed as a result of even an illegal search or seizure is not liable to be shut out. 3. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil that tries to hide the realities or covering the obvious deficiency, courts have to deal with the same with an iron hand appropriately within the framework of law. 4. It is as much the duty of the prosecutor as of the Court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice. 5. In order to ensure that the criminal prosecution is carried on without any deficiency, in appropriate cases this Supreme Court of India can even constitute a Special Investigation Team and also give appropriate directions to the Central and State Governments and other authorities to give all required assistance to such specially constituted investigating team in order to book the real culprits and for effective conduct of the prosecution. 6. While entrusting the criminal prosecution with other instrumentalities of State or by constituting a Special Investigation Team, the High Court or this Supreme Court of India can also monitor such investigation in order to ensure proper conduct of the prosecution. 7. In appropriate cases even if the charge-sheet is filed it is open for this Supreme Court of India or even for the High Court to direct investigation of the case to be handed over to the Central Bureau of Investigation or to any other independent agency in order to do complete justice. 8. In exceptional circumstances the Court, in order to prevent miscarriage of criminal justice and if it considers necessary, may direct investigation de novo., While observing and holding so in Dharam Pal v. State of Haryana (2016) 4 SCC 160 : (2016) 2 SCC (Criminal), paras 24 and 25, it is observed and held as under: Be it noted here that the constitutional courts can direct for further investigation or investigation by some other investigating agency. The purpose is that there should be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation. We are absolutely conscious that direction for further investigation by another agency has to be very sparingly issued but the facts depicted in this case compel us to exercise the said power. We are disposed to think that purpose of justice commands that the cause of the victim, the husband of the deceased, deserves to be answered so that miscarriage of justice is avoided. Therefore, in this case the stage of the case cannot be the governing factor. The power to order fresh, de novo or reinvestigation being vested with the constitutional courts, the commencement of a trial and examination of some witnesses cannot be an absolute impediment for exercising the said constitutional power which is meant to ensure a fair and just investigation. It can never be forgotten that justice has one flavour, the flavour of answering to the distress of the people without any discrimination. The democratic set‑up has the potentiality of ruination if a citizen feels the truth uttered by a poor man is seldom listened to. It is the bounden duty of a court of law to uphold the truth, which means absence of deceit, absence of fraud and a real and fair investigation, not an investigation that reveals itself as a sham one. It is not acceptable. It has to be kept uppermost in mind that impartial and truthful investigation is imperative. If there is indentation or concavity in the investigation, can the faith in investigation be regarded as gospel truth? Will it have the sanctity or the purity of a genuine investigation? If a grave suspicion arises with regard to the investigation, should a constitutional court close its hands and accept the proposition that as the trial has commenced, the matter is beyond it? That is the tour de force of the prosecution and if we allow ourselves to say so it has become idée fixe but in our view the imperium of the constitutional courts cannot be stifled or smothered by bon mot or polemic. Of course, the suspicion must have some sort of base and foundation and not a figment of one's wild imagination. One may think an impartial investigation would be a nostrum but not doing so would be like playing possum. As has been stated earlier, facts are self‑evident and the grieved protagonist, a person belonging to the lower strata, should not harbour the feeling that he is an orphan under law., Now, so far as the reliance placed upon the decision of this Supreme Court of India in Rama Chaudhary v. State of Bihar (2009) 6 SCC 346 : (2009) 2 SCC (Criminal) is concerned, it is required to be noted that in the said decision this Supreme Court of India was considering the scope of Sections 173(8) and 173(8)(2) of the Code of Criminal Procedure and the right of the police to further investigation. It is observed that the police have no right for fresh investigation or reinvestigation. However, this Supreme Court of India had no occasion to consider the powers of the constitutional courts, which are dealt with and considered in Bharati Tamang and Dharam Pal., Applying the law laid down by this Supreme Court of India in the aforesaid decisions and the principle of law laid down hereinabove, it is required to be considered whether a case is made out for further investigation, fresh investigation, reinvestigation or de novo investigation or not., It is required to be noted that in the present case, the allegations in the FIR, right from the very beginning, were against Accused 13, who at the relevant time was the sitting Cabinet Minister occupying a high position. Even at the relevant time, when the State Police investigated FIR No. 120 of 2020, the first charge‑sheet and the second charge‑sheet did not name Accused 13. The investigation was also conducted in a perfunctory manner. The real investigation started only after the intervention of the High Court and after passing various orders in the present proceedings by the High Court. The allegations in the FIR were very serious including the misuse of powers by the sitting Cabinet Minister and of abducting, kidnapping and beating the complainant., Be that as it may, even according to the State investigating agency, further investigation is required. As observed and held by this Supreme Court of India in the aforesaid decisions, the victim has a fundamental right of fair investigation and fair trial. Therefore, mere filing of the charge‑sheet and framing of the charges cannot be an impediment in ordering further investigation, reinvestigation or de novo investigation, if the facts so warrant., Now, so far as the submission on behalf of the accused that earlier the State through the learned Advocate General opposed the writ petition and submitted that there was a fair investigation and now with the change in power the State agency has changed its stand is concerned, the courts are not concerned with the stand taken by the State at the relevant time and now. At the relevant time when the State Police agency took a particular stand, Accused 13 was in power and a sitting Minister. The facts narrated hereinabove would suggest the manner in which the earlier investigation was carried out and that Accused 13 was only charge‑sheeted in the second supplementary charge‑sheet in March 2022 and not prior to that when the first charge‑sheet was filed, the supplementary charge‑sheet was filed and even when the charges against the other accused were framed. The endeavour of the Court should be to have a fair investigation and fair trial only. Therefore, in the facts and circumstances of the case narrated hereinabove, we are of the opinion that a case is made out for further investigation and the State agency may be permitted to conduct a further investigation and to bring on record further material, which may be in the furtherance of fair investigation and fair trial. The High Court has committed a very serious error in not ordering and/or permitting the State Police agency to further investigate into the FIRs bearing Nos. 119 and 120 of 2020. The High Court has not considered the relevant aspects narrated hereinabove and therefore interference of this Supreme Court of India is warranted., In view of the above and for the reasons stated above, the present appeal succeeds in part. The impugned judgment and order in Anant Thanur Karmuse v. State of Maharashtra, 2022 SCC OnLine Bom 9405 passed by the High Court refusing to transfer the investigation of FIR No. 120 of 2020 to the Central Bureau of Investigation is hereby confirmed. The impugned judgment and order passed by the High Court refusing to order further investigation/reinvestigation is hereby quashed and set aside and we direct/permit the State investigating agency to further investigate into the FIR bearing No. 120 of 2020. The aspects on which the further investigation shall be carried out are left to the wisdom of the State investigating agency. Further investigation shall be carried out and completed as early as possible, preferably within a period of three months from the date of receipt of the present order, and the further supplementary report shall be placed before the learned Magistrate in the trial thereafter forthwith, which may be considered by the trial court in accordance with law and on its own merits and the accused be tried accordingly., Later, the Apex Court in the case of State through Central Bureau of Investigation held that even where a charge‑sheet or challan has been filed by the police under subsection (2) of Section 173 of the Code of Criminal Procedure, the police can undertake further investigation in respect of an offence under subsection (8) of Section 173 of the Code of Criminal Procedure. (Reference: Article titled Different Aspects of Section 173(8) of the Code of Criminal Procedure by D. Nageswara Rao, Prl. JCJ, Manthani.), In Rama Chaudhary v. State of Bihar reported in (2009) 6 SCC 346, this Supreme Court of India held that further investigation within the meaning of provision of Section 173(8) of the Code of Criminal Procedure is additional, more, or supplemental. Further investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether., We may summarise our final conclusion as under: (i) Even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case. In other words, there is no bar against conducting further investigation under Section 173(8) of the Code of Criminal Procedure after the final report submitted under Section 173(2) of the Code of Criminal Procedure has been accepted. (ii) Prior to carrying out further investigation under Section 173(8) of the Code of Criminal Procedure it is not necessary that the order accepting the final report should be reviewed, recalled or quashed. (iv) Further investigation is merely a continuation of the earlier investigation, hence it cannot be said that the accused are being subjected to investigation twice over. Moreover, investigation cannot be put at par with prosecution and punishment so as to fall within the ambit of Clause (2) of Article 20 of the Constitution. The principle of double jeopardy would, therefore, not be applicable to further investigation. (v) There is nothing in the Code of Criminal Procedure to suggest that the court is obliged to hear the accused while considering an application for further investigation under Section 173(8) of the Code of Criminal Procedure., While recording the facts in the earlier part of our judgment, we have made reference to the order passed by a coordinate Bench of the High Court dated 11 September 2014 in Criminal Original Petition No. 6371 of 2014. All legal issues which we have discussed in the present judgment were looked into by the High Court and by a reasoned order, the High Court took the view that it was permissible for the Central Bureau of Investigation to undertake further investigation and the objections raised on behalf of the accused were not sustainable in law. The High Court observed that Section 173(8) of the Code of Criminal Procedure enables an officer in charge of a Police Station or the Central Bureau of Investigation to carry on further investigation even after a report under Section 173(2) of the Code of Criminal Procedure is submitted to the court. The power to further investigation, after filing of final report in court and even after the Magistrate has taken cognizance, is available to the Police in view of Section 173(8) of the Code of Criminal Procedure. Further investigation, therefore, is the continuation of the earlier investigation and not a fresh investigation or reinvestigation to be started ab initio wiping out the earlier investigation altogether. This is well settled in the decision of the Hon’ble Supreme Court of India reported in (2013) 5 SCC 762 (Tyagi v. Irshad Ali). The only rider is that it would be desirable that the Police should inform the Court and seek formal permission to make further investigation as observed in Bhagwan Samardha Sreepada Vallabha Venkata Vishwadaha Maharaj v. State of Andhra Pradesh., Although subsection (8) of Section 173 of the Code of Criminal Procedure does not, in specific terms, mention the powers of the court to order further investigation, the power of the police to conduct further investigation envisaged therein can be triggered into motion at the instance of the court. Therefore, acceptance of the final report by the Magistrate does not debar him from taking cognizance of the offence if fresh materials come to light. In such a situation, the power of the court to direct the police to conduct further investigation cannot have any inhibition. There is nothing in Section 173(8) of the Code of Criminal Procedure to suggest that the court is obliged to hear the accused before any such direction is made., In the instant case, the counter filed by the Respondent/Central Bureau of Investigation specifically states that in the year 2013, the Central Bureau of Investigation received certain information/material warranting reopening of the investigation. Accordingly, the Inspector of Police, CBI/ACB filed a petition in Criminal Miscellaneous Petition No. 3833/2013 in respect of the same First Information Report, stating that the prosecution is in possession of new evidence to substantiate the allegation of possession of disproportionate assets beyond the known sources of income against the accused persons. The petition has been allowed by the learned Principal Special Judge for CBI Cases, permitting further investigation., The power of the Magistrate under Section 156(3) of the Code of Criminal Procedure to direct further investigation is an independent power and does not stand in conflict with the power of the Police Officer. The Magistrate can exercise this power even after submission of a report by the Investigating Officer, which would mean that it would be open to the Magistrate not to accept the conclusion of the Investigating Officer and direct further investigation. This provision does not affect the power of the Investigating Officer to further investigate the case even after submission of the report as provided in subsection (8) of Section 173 of the Code. Therefore, considering all these provisions, in my view, the Magistrate can order reopening of the investigation even after acceptance of the final report making a closure report., The same view has also been taken in the decision of the Hon’ble Supreme Court of India in State of Rajasthan v. Aruna Devi (1995 SCC (Criminal) 1) wherein it was held that acceptance of the final report by the Magistrate does not debar him from taking cognizance of the offence if on further investigation fresh materials come to light., Mr. N. Chandrasekaran, the learned Special Public Prosecutor, contended that there is no legal bar to the reopening of the investigation of any case in which a closure report has been submitted if there are sufficient, cogent fresh materials to proceed against the accused persons. I find all force in his submissions. Having considered the rival contentions of both parties, I am of the opinion that in view of the facts that the Inspector CBI/ACB has collected some fresh materials connected with this case, which were not available to the Investigating Officer earlier, it cannot be said that the learned Principal Special Judge for CBI Cases acted beyond its jurisdiction by ordering reopening of the investigation of the case., For the reasons stated above, I find full force in the contentions raised by the learned Special Public Prosecutor for CBI Cases. I, therefore, do not find any illegality in the impugned order which warrants any interference by this Supreme Court of India., In the light of the aforesaid judgments of the Apex Court, what is required to be noticed is whether a fair trial would require further investigation. The Apex Court has clearly deduced certain conclusions for grant of permission to further investigation in the case of Hemendra Reddy where the Apex Court holds that even after the final report is laid before the Magistrate and is accepted, it is permissible for the investigating agency to carry out further investigation in the case; prior to carrying out further investigation it is not necessary that the order accepting the final report should be reviewed, recalled or quashed. Further investigation is only a continuation of the earlier investigation and the accused in such case need not be heard., On the bedrock of the principles laid down by the Apex Court in the aforesaid judgments and the lacunae projected by the petitioner and accepted in the course of the order, it would lead to an unmistakable conclusion that the case at hand requires further investigation. The investigating officer right from the beginning, as projected by the petitioner, appears to have been partisan towards the accused. Therefore, it would not be safe for this Supreme Court of India to direct further investigation to be conducted by the very investigating officer. Hence, further investigation shall be conducted by a different investigating officer to be nominated by the Commissioner of Police or any competent authority empowered to appoint the investigating officer and the investigating officer shall conclude further investigation within three months from the date of entrustment of such investigation, while further investigating, the investigating officer shall bear in mind the observations made in the course of the order., For the aforesaid reasons, I pass the following: (i) The writ petition is allowed and the order dated 07‑01‑2023 passed by the Additional City Civil and Sessions Judge, FTSC‑I, Bengaluru in Special Case No. 2261 of 2022 stands quashed. (ii) A mandamus is issued to the respondent for conduct of further investigation as provided under Section 173(8) of the Code of Criminal Procedure. Such further investigation shall be entrusted to a different investigating officer other than the one who has now investigated into the crime and filed the charge‑sheet. (iii) Such investigating officer shall be nominated/appointed by the Commissioner of Police or competent authority within 15 days from the date of receipt of a copy of this order. (iv) The investigating officer so appointed shall conclude further investigation under Section 173(8) of the Code of Criminal Procedure within 10 weeks thereafter and file a report of the same before the concerned court. (v) Till the filing of the report of further investigation, the concerned court shall not proceed further with the present charge‑sheet that is filed before it. On further investigation report being filed before the court, the concerned court is at liberty to regulate its procedure and proceed further in accordance with law.
id_651	0
id_651	1	The aforestated deliberation would lead to draw a safe conclusion that the arrest of the Petitioners by the investigating officer and their remand to police custody by the impugned order dated 20 July 2021 by the learned Magistrate is within the conformity of the provisions of law. The impugned order dated 20 July 2021 passed by the learned Magistrate does not suffer from any error which requires the High Court to interfere with it under its jurisdiction under Article 227 of the Constitution of India. Both the petitions are accordingly dismissed.
id_655	0	BLAPL No.2818 of 2021 Santosh Kumar Nayak Petitioner Mr. Debasnan Das, Adv versus State of Odisha. This matter is taken up through hybrid mode. The petitioner has filed this application under Section 439 of the Criminal Procedure Code seeking bail in connection with Nimapara Police Station Case No. 29 of 2020 under Sections 344, 376(2)(n), 506 and 109 of the Indian Penal Code corresponding to General Register Case No. 85 (A) of 2020 pending before the court of Learned Judicial Magistrate First Class, Nimapara., The prosecution case, in brief, is that on 12 January 2020 at about 10 A.M. the petitioner took the victim from her house to Bhubaneswar with a promise to marry her. The petitioner maintained a physical relationship with the victim for several days and later abandoned her. After receiving information from the victim, her father and brother proceeded to Bhubaneswar and rescued her. On 3 February 2020, when the father of the informant brought this fact to the attention of the petitioner’s father, the latter abused them and threatened dire consequences if the matter was reported to the local police., It is submitted by learned counsel for the petitioner that the victim is a major and accompanied the petitioner to Bhubaneswar of her own free will. Moreover, the victim has not stated the exact date of the alleged incident in the FIR. Therefore, taking into account the age of the victim and other surrounding circumstances, there is no legal bar to release the petitioner on bail. Learned counsel also contends that the medical examination report negates the allegations of forceful sexual assault. In view of such medical evidence, liability of the petitioner cannot be attracted under Section 376(2)(n)., Per Contra, learned Additional Public Prosecutor raised objection to the petitioner’s bail application considering the nature of the allegations and offences. It was alleged that the petitioner, with assurance of marriage, took the victim with him, repeatedly committed sexual intercourse, took photographs of her naked body and thereafter absconded after abandoning the victim. Consequently, the facts and circumstances establish a prima facie case under Section 376 of the Indian Penal Code along with other offences., Perusal of the up‑to‑date case diary and material, more specifically the FIR lodged by the victim and her statement under Section 161 of the Criminal Procedure Code, prima facie reveals that both the victim and the accused were acquainted and had a love affair, which is affirmed by the victim. There is also a prima facie belief that the petitioner gave a false promise to marry and, based on such assurance, the victim accompanied the petitioner to Bhubaneswar on 12 January 2020 at about 10 A.M. It is alleged that the petitioner abandoned the victim, causing her to starve for two days., The allegation that the petitioner committed sexual intercourse with the victim, captured photographs of her naked body and subsequently abandoned her appears to be unsubstantiated without a proper trial. The medical report suggests that there was no forcible sexual intercourse and that the victim was not pregnant at the time of examination. Truthfulness or falsity of the allegations pertains to the realm of evidence and cannot be pre‑judged at this initial stage; a trial is required to establish the factual position., The definition of rape under Section 375 of the Indian Penal Code includes sexual acts committed (i) against the victim’s will, (ii) without her consent, (iii) with consent obtained under fear of death or hurt, (iv) when consent is given under the mistaken belief that the man is her husband, (v) when consent is given by a person of unsound mind or intoxicated, (vi) when the victim is a girl under the age of eighteen years, and (vii) when the victim is not in a position to communicate consent. The false promise of marriage does not fall within these categories., The High Court of Calcutta has consistently held that failure to keep a promise on a future uncertain date does not always amount to a misconception of fact at the inception of the act. In Jayanti Rani Panda versus State of West Bengal, the accused, a teacher, promised marriage to the prosecutrix, who cohabited with him for several months. When she became pregnant and insisted on marriage, the accused suggested an abortion and later disowned the promise. The Court observed that for a misconception of fact to arise, the fact must have immediate relevance; a mere promise to marry at an indefinite future does not satisfy this requirement., The Supreme Court in Yedla Srinibas versus State of Andhra Pradesh held that voluntary consent depends on the facts of each case, including the age, education and social status of the girl and the boy., The Supreme Court in Vinod Kumar versus State of Kerala held that a person cannot be convicted where the alleged consent was obtained on a false promise that was not present at the time of the act; the accused cannot be held culpable in such circumstances., It is observed that many cases involve consensual relationships that later become sour, and the aggrieved party may use the law as a weapon of vengeance, converting consensual acts into alleged rapes. In Anurag Soni versus State of Chhattisgarh, the Supreme Court distinguished between an unfulfilled promise and a false promise from the beginning, stating that if a man can prove he intended to marry but later changed his mind, it is not rape; rape is established only when dubious intentions existed from the outset., The consent of a woman under Section 375 must involve an active and reasoned deliberation. To establish that consent was vitiated by a misconception of fact arising from a promise to marry, two propositions must be satisfied: (i) the promise of marriage was false, given in bad faith with no intention of being adhered to at the time it was made; and (ii) the false promise was of immediate relevance or bore a direct nexus to the woman’s decision to engage in the sexual act. This position was articulated in Pramod Suryabhan Pawar versus State of Maharashtra., The authoritative commentary on criminal law by Glanville Williams (Criminal Law, Second Edition, Universal Law Publishing, pages 559‑560) corroborates that false promise to marry does not amount to rape. The framers of law have specifically provided circumstances where consent is deemed absent under Section 375; consent obtained on the pretext of marriage is not among them., Having considered the matter in the aforesaid perspective and guided by the precedents cited, the petitioner's prayer for bail is allowed. Accordingly, the High Court will release the petitioner on bail, imposing such terms and conditions as it deems fit, including cooperation with the investigation and a prohibition on threatening the victim or misusing the liberty granted. It is clarified that any observations made herein regarding the facts of the case shall not prejudice the fair trial of the present matter. The bail application is disposed of. An urgent certified copy of this order be granted on proper application.
id_657	0	Government of India Ministry of Law and Justice Department of Justice (Appointments Division) Jaisalmer House, 26, Man Singh Road, New Delhi-110011. Dated: 12th October 2023., In exercise of the power conferred by Article 223 of the Constitution of India, the President is pleased to appoint Kumari Justice Ritu Bahri, Judge of the Punjab and Haryana High Court, to perform the duties of the office of the Chief Justice of the Punjab and Haryana High Court with effect from 14 October 2023 consequent upon the retirement of Shri Justice Ravi Shanker Jha, Chief Justice, Punjab and Haryana High Court on 13 October 2023. Rajinder Kashyap, Special Secretary to the Government of India, Telephone 2338 3037., To the Manager, Government of India Press, Minto Road, New Delhi. Number K-11019/32/2023-US.I/II(i) Dated: 12 October 2023., Copy to: Kumari Justice Ritu Bahri, Judge of the Punjab and Haryana High Court through the Registrar General, Punjab and Haryana High Court, Chandigarh; the Secretary to the Governor of Punjab, Chandigarh; the Secretary to the Governor of Haryana, Chandigarh; the Secretary to the Chief Minister of Punjab, Chandigarh; the Secretary to the Chief Minister of Haryana, Chandigarh; the Secretary to the Chief Justice, Punjab and Haryana High Court, Chandigarh; the Chief Secretary, Government of Punjab, Chandigarh; the Chief Secretary, Government of Haryana, Chandigarh; the Registrar General, Punjab and Haryana High Court, Chandigarh; the Accountant General, Punjab, Chandigarh; the Accountant General, Haryana, Chandigarh; the President's Secretariat, Chief Administrator II Section, Rashtrapati Bhawan, New Delhi; the Principal Secretary to the Prime Minister, Prime Minister's Office, South Block, New Delhi; the Registrar (Confidential), Office of the Chief Justice of India, 07 Krishna Menon Marg, New Delhi; the Technical Director, MC, Department of Justice, with a request to upload on the website of the Department.
id_658	0	Petition(s) for Special Leave to Appeal (Criminal) No. 4496/2023 (Arising out of the Impugned Final Judgment and Order dated 21-03-2023 in CRLMN No. 74217/2022 passed by the Patna High Court) Date: 22-11-2023. This matter was called on for hearing today. For Petitioners: Mr. Siddhartha Dave, Senior Advocate; Mr. Ashish Batra, Advocate on Record. For Respondents: Mr. Saket Singh, Advocate; Ms. Sangeeta Singh, Advocate; Mrs. Niranjana Singh, Advocate on Record. The Patna High Court heard Mr. Siddhartha Dave, learned senior counsel for the petitioner and Mr. Saket Singh, learned counsel for the State., The present Special Leave Petition under Article 136 of the Constitution of India has been filed against the Impugned Judgment dated 21.03.2023 passed by the Patna High Court, which declined pre‑arrest bail to the petitioner who is accused of offences under Sections 353, 387, 419, 420, 467, 468 and 120B of the Indian Penal Code, 1860 (hereinafter referred to as the IPC) and Sections 66C and 66D of the Information Technology Act, 2000 (hereinafter referred to as the Information Technology Act). The allegations against the petitioner are that he, being an officer of the Indian Police Service, in connivance with other co‑accused had conspired for deriving undue benefits of either postings or for getting disciplinary proceedings initiated against him dropped. The crux of the case is that for the benefit of the petitioner, and with his active knowledge and connivance, through SIM cards obtained by the co‑accused, a WhatsApp account with a picture of the then Hon'ble Chief Justice of the Patna High Court was created, and using the said WhatsApp account, calls and messages are alleged to have been made to the then Director General of Police, Bihar (hereinafter referred to as the DGP) for obtaining favourable decisions., Mr. Dave, learned senior counsel for the petitioner, submits that upon being granted interim protection by the Patna High Court on 12.05.2023, he has cooperated with the investigating agency whenever called. He submits, on instructions, that as per the petitioner's information, based on newspaper reports in the local dailies of Bihar, the charge sheet is also likely to be submitted, which indicates that investigation has been completed. Thus, according to him, no purpose shall be served if the petitioner is directed to surrender or is taken into custody. It is submitted that, at best, from the entire reading of the First Information Report (hereinafter referred to as the FIR) itself, it is clear that whatever allegations have been levelled against the petitioner are based on statements made by the co‑accused connecting him to the crime but no direct evidence has come, at least as far as the petitioner is concerned, to substantiate that he was an active participant or had done any specific overt act in pursuance of a conspiracy. Further, it is submitted that even from the sections invoked in the FIR, it is apparent that at most there may be some justification in charging him under the Information Technology Act but, under the Indian Penal Code, the sections per se do not apply to him. It is submitted that the DGP to whom the calls were made has surprisingly not been made an accused and is now sought to be made a witness against the petitioner in the present case, which clearly shows that the authorities are trying to find a scapegoat as the matter had grown out of proportion due to the so‑called involvement of the high constitutional office of the Hon'ble Chief Justice of the Patna High Court. It is submitted that the Patna High Court could take into consideration the fact that once custodial interrogation is not required, merely because the allegations are of a serious nature, a person should not be asked to surrender and undergo incarceration., Mr. S.D. Sanjay, learned senior counsel, who has also assisted the Patna High Court on behalf of the petitioner via video‑conferencing, submitted that ultimately no benefit has accrued to the petitioner out of any of the alleged acts or transactions. It is submitted that all this was only a result of the backlash from a senior Inspector‑General rank officer, with whom the petitioner had differences when both were posted together in one of the districts., Mr. Saket Singh, learned counsel appearing for the State of Bihar and the Economic Offences Unit, submitted that as far as the petitioner is concerned, it cannot be said that he was a mere co‑accused as he is the main beneficiary as also the mastermind of the entire crime. Additionally, it is submitted on behalf of the State that even in the FIR and also during the investigation up to now, cogent evidence has emerged to link the petitioner physically with the co‑accused and the tower locations of their mobile phones have been found at the places where witnesses have stated they had met and their purpose was very obvious, that is, only to benefit the petitioner, either in posting or for dropping the charges he was facing. It is submitted that though the petitioner has cooperated, to complete the link, his mobile phone/handset is required to complete the chain with regard to the fact that the WhatsApp messages which have been exchanged with the phones of the co‑accused were actually received/delivered to the number of the petitioner. It is submitted that initially even the SIM cards were not directly bought in the name of any of the named accused and had passed through four different hands and ultimately came in the possession of the co‑accused from which a false WhatsApp account was created, as described supra. Utilizing the same, such calls and messages/chats were made and evidence of these calls and chats have been retrieved by the investigating agency. Mr. Singh urged that the modus operandi was that screenshots of such chats from the number impersonating the Hon'ble Chief Justice of the Patna High Court were taken and sent to another number and from that number, the same was forwarded to the petitioner's mobile for keeping him updated of the developments. It is submitted that as far as the mobile handset of the petitioner is concerned, despite repeated requests by the investigating agency to produce the same, it has not been done and the worst part, according to learned counsel, is that the petitioner deliberately lied to them inasmuch as, at first, it was stated that he had left the handset at home, and later, it was stated that it was taken away by the investigating agency in a raid which was conducted in connection with another case. However, it is stated that such false claims stand exposed as it has been proved that even on the dates he claims that the handset was not with him, it was found switched off, but for a brief moment, it was switched on and the location was in Lucknow, Uttar Pradesh. He further submitted that there are many areas which the investigating agency could not delve into in the absence of proper and full interrogation, including custodial, of the petitioner, especially with regard to his mobile handset, as ultimately, it is in the personal knowledge of the petitioner. The submission is that the petitioner alone would know where he had kept his mobile handset, so that at least attempts can be made to retrieve the same by the investigative agency., It was further submitted that from a perusal of the case diary, which has been gone through, from what has been indicated in the judgment of the learned single judge, impugned herein, it is obvious that serious and multiple attempts were made by the accused, including the petitioner, also to influence the judiciary, to derive benefits in judicial proceedings in pending cases., It was contended that from the case diary, it is clear that there are chats between the two judicial officers named in the learned single judge's judgment, who were in touch with the co‑accused with regard to getting matters listed before a particular bench of the Patna High Court., In Sumitha Pradeep v Arun Kumar CK, 2022 SCC OnLine SC 1529, the Supreme Court of India observed as under: 16. we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail., In Dharamraj v State of Haryana, 2023 SCC OnLine SC 1085, the Supreme Court of India opined: 11. The contours of anticipatory bail have been elaborately dealt with by five‑Judge Benches in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 and Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1. Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 is worthy of mention in this context, despite its partial overruling in Sushila Aggarwal (supra). We are cognizant that liberty is not to be interfered with easily. More so, when an order of pre‑arrest bail already stands granted by the Patna High Court. 12. Yet, much like bail, the grant of anticipatory bail is to be exercised with judicial discretion. The factors illustrated by this Court through its pronouncements are illustrative, and not exhaustive. Undoubtedly, the fate of each case turns on its own facts and merits., Having considered the matter, this Court is of the opinion that the petitioner is not entitled to the benefit of anticipatory bail, mainly on account of the seriousness and gravity of the alleged offences and apparent non‑cooperation. We refrain from comment on the merits of the case, noting the reiterated dictum in Atulbhai Vithalbhai Bhanderi v State of Gujarat, 2023 SCC OnLine SC 5602. It has already been clarified that enunciation of law qua bail would equally apply to anticipatory bail cases. Anticipatory bail after all is one of the species of bail. Accordingly, we affirm and uphold the impugned judgment. However, as there was an interim order in favour of the petitioner, it is ordered that he surrender before the court concerned within a period of two weeks from today., The larger issues, however, in view of what has been recorded by the learned single judge, cannot be left unattended. The Patna High Court will certainly not shut its eyes to the materials unearthed, since it relates not only to maintaining purity in judicial proceedings, but upholding public faith in the system at large. We are of the firm view that further directions are necessitated. As such, the Registrar General, Patna High Court is directed to submit, in a sealed cover, complete details of what action the Patna High Court has taken, along with copies of relevant documents, pursuant to the reference made to Hon'ble Chief Justice for taking appropriate decision on the administrative side apropos all such facts which have been noted in the impugned judgment. Learned counsel for the investigating agency/respondent No.2 shall also make available the entire up‑to‑date case diary, with the relevant portions flagged, in a sealed cover, on the next date., The report is to be submitted on or before 09.12.2023 by the Registrar General, Patna High Court., As we have heard the matter in extenso, and after due deliberation, in the fitness of things, this case shall be treated as part‑heard., List on 12.12.2023., The Registry shall add Patna High Court through its Registrar General as respondent No.3 and send requisite intimation forthwith. Learned counsel for the State may also inform the Registrar General, Patna High Court about this order for compliance.
id_66	0	October 3, 2023. Writ Petition No. 16013 of 2023 Priya Das and others versus Union of India and others. Kallol Basu, Shibaji Kumar Das, Ahshan Ahmed, Samik Sarkar, Rupsa Sreemani, Atreya Chakrabarti, Swapnamoy Sarkar for the petitioners. Asok Kumar Chakrabarti, Susmita Saha Dutta for the Union of India. Mister Anuran Samanta for the Election Commission of India. Piush Chaturvedi, Tarun Kumar Das for respondent No. 12. The matter is being heard for the purpose of consideration of the prayer for interim order., Learned counsel for the petitioners, upon it being pointed out by counsel appearing for the private respondent, husband of petitioner No. 1, that the relevant memorandum annexed at page 270 has not been assailed in the writ petition, submits that the dissatisfaction and affectation of the petitioners even with the memorandum annexed at page 270 pertaining to the cancellation of Aadhaar Cards of the petitioners as proposed by the Deputy Director of the Ministry of Home Affairs has been mentioned in paragraph No. 2 of the writ petition. However, counsel submits that there has been an inadvertent omission to include a challenge to the said memorandum in the prayer portion of the writ petition. On the prayer of counsel for the petitioners, the Advocate-on-record for the petitioners is granted leave to amend the prayer portion of the writ petition by incorporating a challenge to the memorandum annexed at page 270 of the writ petition, bearing Memo No. 14051/96/2021-F.VI(i) dated October 18, 2022 as well., Learned counsel for the petitioners, by placing particular reliance on the annexures to the writ petition and the supplementary affidavit filed by the petitioners, argues that the provisions of the Citizenship Act, 1955 and the corresponding Rules of 2009 as well as the extant Regulations pertaining to Aadhaar Cards have been violated by the respondent authorities. During the pendency of the writ petition, the Aadhaar Cards of the petitioners have been deactivated, leading to their Voter ID Cards as well as PAN Cards being suspended consequentially. Counsel submits that no reasonable enquiry as contemplated under Rule 29 of the Aadhaar (Enrolment and Update) Regulations, 2016 has been given to the petitioners, nor has any copy of any field enquiry, which is mandatorily required under the said provision, been handed over to the petitioners. It is submitted that the deactivation of the Aadhaar numbers of the petitioners had to be under Regulation 28 of the 2016 Regulations. However, the respondent authorities failed to furnish any ground as contemplated under the said Regulation for suspending the Aadhaar Cards of the petitioners. It is further contended that the provisions of the 2009 Citizenship Rules, in particular Rules 26, 27 and 28, stipulate a specific modality for depriving a person of citizenship of India. The provisions of Schedules II and III are also to be adhered to for such purpose, which has not been done in the present case. In the absence of any challenge to the citizenship of the petitioners and/or any steps having been taken in that regard, the respondents acted palpably without jurisdiction in deactivating the Aadhaar Cards without any plausible reason whatsoever., Learned counsel appearing for the private respondent, husband of petitioner No. 1, submits that the respondent has furnished sufficient documents to indicate that petitioner No. 1 is a holder of a Bangladeshi passport and other documents, including a Voter Card of Bangladesh, which clinch beyond any reasonable doubt the fact that petitioner No. 1 and her family are Bangladeshi citizens. Hence, the Indian passport, Aadhaar Card, PAN Card and other documents were obtained fraudulently by petitioner No. 1 and her entire family. It is submitted that irrespective of the fact that a matrimonial litigation is going on between the private respondent and petitioner No. 1, petitioner No. 1 is a citizen of Bangladesh and, as such, the memoranda of the Government of India which are under challenge in the writ petition were rightly issued in respect of petitioner No. 1 and her family. It is further submitted that the petitioners have not preferred any effective challenge in the prayer portion of the writ petition to the memorandum pertaining to the proposed cancellation of Indian Aadhaar Cards of the petitioners and, as such, no interim relief can be granted on such count., Learned counsel submits that since the filing of a supplementary affidavit, incorporating certain subsequent facts regarding the deactivation of the Aadhaar Card, does not supplant the writ petition or the reliefs claimed therein, no interim relief can be granted on the basis of such supplementary affidavit, insofar as the deactivation of the Aadhaar Card of the petitioner is concerned. The Learned Additional Solicitor General submits that there are several justifications for the deactivation of the Aadhaar Card of the petitioner. It is contended that the Ministry of Home Affairs of the Government of India, upon having received reports from the Central Security Agency, which the Union is ready to present before the Supreme Court of India if so directed, took the decision to cancel the Indian Aadhaar Cards of the petitioners, since those were fraudulently obtained by the petitioners, who are Bangladeshi nationals. It is further contended that it is within the domain of the State, as the sovereign, to take appropriate action in the event it transpires that a person who has fraudulently obtained documents of Indian citizenship turns out to be a national of a different country. It is reiterated that dual citizenship is not approved by Indian law and, as such, the impugned memoranda were rightly issued by the Government. In any event, it is submitted that sufficient hearing was given to the petitioners and, as such, even the deactivation of Aadhaar Cards of the petitioners does not merit any interdiction by any interim order of this Court., Keeping in mind the constraints of the Supreme Court of India while deciding on an interim prayer, the arguments of the parties are not elaborated further but will be dealt with presently in the order which is being passed hereunder. The provisions under which the citizenship of an Indian citizen can be interdicted are provided in the Citizenship Act, 1955. Relevant to the present context are Sections 9 and 10 of the said Act. Section 9 speaks about termination of citizenship and Section 10 about deprivation of citizenship. Needless to say, under the Act of 1955 read with Rules 26, 27 and 28 of the Citizenship Rules, 2009 framed thereunder and Schedules II and III, sufficient procedure has been laid out, keeping in view the tenets of natural justice, for the purpose of depriving or terminating the citizenship of a person. However, at the present juncture, the high ground of termination of citizenship has not been invoked by the respondent authorities, since the petitioners are still in possession of valid passports. Since the petitioners have not yet been deprived of their citizenship by the respondents, we need not look into the provisions of the Citizenship Act and the consequential Rules at this juncture. However, the citation of the said statute becomes relevant insofar as the present action of deactivating the Aadhaar Cards of the petitioners might have the consequence, de facto, of terminating the Indian citizenship of the petitioners, since the deactivation of their Aadhaar Cards has severe consequences on the petitioners' right to live a dignified life as enshrined in Article 21 of the Constitution of India and to pursue vocations under Article 19 of the Constitution of India., Considering the provisions of the Aadhaar Regulations of 2016 in such context, we find that Regulation 27 thereof provides for cases requiring omission of Aadhaar number. However, the authorities have resorted to Regulation 28(c) of the 2016 Regulations, as declared in the documents annexed to the pleadings. As per the said provision, the Aadhaar number shall be deactivated where it is found at a later stage that enrolment has been carried out without valid supporting documents. The Aadhaar number in such context shall be deactivated till it is updated by the Aadhaar number holder after furnishing valid supporting documents. The memorandum issued at page 270 of the writ petition does not speak in any manner about, or refer to, Regulation 28 or any other Regulations within the preview of the 2016 Regulations. The proposed cancellation of the Indian Aadhaar Card held by the petitioners, as suggested by the Ministry of Home Affairs, Government of India, is on the ground that apparently the Ministry has received a report from the Central Security Agency that petitioner No. 1 is a Bangladeshi national. The said memorandum surprisingly does not disclose any iota of reference as to why the documents furnished by the petitioners while obtaining the Aadhaar Cards showing the petitioners' Indian citizenship are vitiated., Even if we assume for the sake of argument that petitioner No. 1's husband, against whom petitioner No. 1 has initiated a matrimonial suit and an alimony application, furnished certain documents purportedly showing petitioner No. 1's Bangladeshi nationality, there is no reason why ipso facto such documents, without further scrutiny, field enquiry and justified reasoning, would vitiate the documents produced by petitioner No. 1 herself regarding her Indian citizenship. The presumption might have been otherwise if such documents regarding purported Bangladeshi citizenship were discovered or recovered from the custody of the petitioners themselves. In the present case, it is for the private respondent to prove beyond all reasonable doubt that the petitioners are Bangladeshi citizens and were so at the juncture when the documents in question, including the Aadhaar Cards, were issued in favour of petitioner No. 1. In the criminal proceeding initiated at the behest of petitioner No. 1's husband (the private respondent) against petitioner No. 1, a police report has been furnished by the police authorities. A perusal of the same shows that even the Sub Inspector of Police of the concerned Police Station is unsure as to whether petitioner No. 1 is a Bangladeshi national. The relevant extract of the said report indicates that the accused persons, that is, the petitioners, who are a family, are holding a number of documents pertaining to identity proof of the said persons with regard to their Indian citizenship as specifically showed at this present juncture. It is very difficult to prove, found the police in their report, that the petitioners are Bangladeshi nationals. As such, even in the criminal proceeding, the police report itself indicates that petitioner No. 1 and her family are in custody of several documents to prove their Indian citizenship., The corresponding worth of the documents furnished by petitioner No. 1 and her family on the one hand and the private respondent on the other, pitted against each other, has to be decided by a competent authority. Before such adjudication and/or a formal enquiry being undertaken, the respondent authorities cannot, in any manner, take away the basic rights of petitioner No. 1 and her family as citizens of India, as in the present case. Even Regulation 28(c) of the 2016 Regulations states that where it is found at a later stage that enrolment has been carried out without valid supporting documents, the Aadhaar number may be deactivated. In none of the communications made by the respondent authorities or the Ministry do I find any specific particular of the alleged fraud or suppression alleged to be perpetrated by the petitioners while furnishing the relevant documents for the issuance of the Aadhaar cards in their names. The Learned Additional Solicitor General rightly argues that particulars of fraud are required to be pleaded. However, we cannot put the cart before the horse insofar as it is for the respondent authorities and the private respondent, who are alleging that the petitioners' Indian citizenship documents were obtained by fraud, to prove the same for the purpose of taking away the rights of the petitioners as Indian citizens., The inquiry contemplated under Regulation 29 of the 2016 Regulations, as rightly argued by counsel for the petitioners, has two limbs. The first limb is the field enquiry report, which shall be the primary basis of the decision to deactivate the Aadhaar card, which may or may not be supplemented by hearing being given to the petitioners. In the present case, hearing was given to the petitioners. However, we do not find from the records that any field enquiry report was relied on by the authorities or a copy thereof was furnished to the petitioners for the petitioners to deal with the same in due process of law. Under Regulation 29(3) of the 2016 Regulations, the authority may initiate necessary action upon receiving the report and the decision to omit or deactivate an Aadhaar number shall be taken thereafter. Sub‑Regulation (2) stipulates that an agency nominated by the authority shall examine/inquire and submit a report to the authority as per the procedures as may be specified by the authority for such purpose. We do not find any iota of any such inquiry report being furnished to the petitioners by the authorities to indicate that the provisions of Regulation 29 were complied with duly for deactivation of the petitioners' Aadhaar cards., The challenge of the petitioners to all impugned memoranda is on the same premise. The very basis on which the petitioners' Indian citizenship is being sought to be assailed by the respondents is the presumption that the petitioners are Bangladeshi nationals. All the challenged memoranda ranging from pages 270 to 274 of the writ petition have been issued on the same premise. In view of such identity of the grounds of challenge in the present writ petition, it cannot be said that the petitioners, due to the initial failure to challenge the memo annexed at page 270 pertaining to the Aadhaar card, are not entitled to any interim injunction on such count. The deactivation of the Aadhaar cards of the petitioners during pendency of the writ petition is a necessary fall‑out of the challenged memoranda dated October 18. Hence, the Supreme Court of India cannot be said to be without jurisdiction in passing necessary interim orders in connection with the deactivation of the Aadhaar card and all consequential actions taken by the respondent authorities in terms of the impugned memoranda during pendency of the writ petition. The relief, if granted on such score, shall only be in aid of the main relief sought in the writ petition., In view of the above discussions, a sufficiently strong prima facie case has been made out by the petitioners to challenge the memoranda, insofar as the appropriate preceding steps were apparently not carried out by the respondent authorities before issuing such memoranda. The deactivation of the Aadhaar cards during pendency of the writ petition also prima facie appears to be de hors the procedure as laid down in the 2016 Regulations pertaining to Aadhaar cards. Accordingly, the deactivation of the petitioners' Aadhaar cards and all consequential action taken by the respondent authorities shall remain stayed during pendency of the writ petition. However, nothing in this order shall prevent the respondent authorities from proceeding on the basis of the communication made in the memoranda under challenge in the writ petition, subject to the rider that the respondents shall comply with all due procedure as stipulated in the concerned statutes, including the Citizenship Act and other pari materia statutes dealing with the fields covered by the said memoranda. The respondents shall file their affidavits in opposition within November 24, 2023. Reply, if any, shall be filed within December 1, 2023. The matter shall be listed for hearing on December 5, 2023. (Sabyasachi Bhattacharyya, Judge).
id_660	0	wp3639-20 Rohini Balasaheb Lawande, petitioner; The Additional Commissioner, Nashik Division, Nashik and others, respondents. Tarabai Vikram Athre, petitioner; The Additional Commissioner, Nashik Division, Nashik and others, respondents. Bhamabai Kanifnath Lawande, petitioner; The Additional Commissioner, Nashik Division, Nashik and others, respondents. Suvarna Ravindra Athre, petitioner; The Additional Commissioner, Nashik Division, Nashik and others, respondents., wp3639-20 Jayshree Balasaheb Athre, petitioner; The Additional Commissioner, Nashik Division, Nashik and others, respondents. Sunita Krushna Salve, petitioner; The Additional Commissioner, Nashik Division, Nashik and others, respondents. Narayan Jaganath Athre, petitioner; The Additional Commissioner, Nashik Division, Nashik and others, respondents. Mister Jiwan J. Patil, head of family, Mister R. S. Kasar, Advocate for the petitioners; Mister S. K. Tambe, Additional Government Pleader for respondent – State; Mister A. B. Kadethankar, Advocate for Maharashtra State Election Commission., The reference comes before us pursuant to the judgment and order dated 6 March 2020 passed by a learned single judge in a group of writ petitions bearing No. 3639 of 2020 and other companion matters. The learned single judge, hearing writ petition No. 3639 of 2020 and others, found that the issue raised is whether a candidate elected unopposed is required to tender an account of election expenses, and that the petitioners rely on Dipmala, wife of Ravindra Chachane v. Additional Commissioner, Nagpur, 2020 (1) Mh. L.J. 900 to contend that a candidate elected unopposed is not required to campaign for contesting election and therefore does not incur election expenses. The case submitted before the learned single judge on behalf of the State was that in Dipmala’s case (supra)., Section 77 of the Representation of People Act, 1951 mandates a candidate to keep account of all expenditure incurred in connection with an election, from the stage of nomination to the date of declaration of result. The order dated 15 October 2016 issued by the Maharashtra State Election Commission with regard to submission of expenses in elections to Parliament, the Legislative Assembly and local bodies had not been referred to or cited. The resolution refers, inter alia, to the fact that expenditure incurred even for tendering a nomination form would be an election expenditure. In the said group of petitions, viz. W. P. No. 3639 of 2020 and others, the order of the State Election Commission dated 7 February 1995 was referred to, wherein a candidate was required to maintain an abstract of accounts of expenditure, including amounts spent on items specified in the proforma in Annexure 1 as election expenses, which contains thirty‑one heads, inter alia, cost of nomination form, expenditure on security deposit, purchase of copies of electoral rolls, etc. Information according to Annexure 1 was required to be submitted by a candidate within thirty days., The declaration of election result with the election officer must be accompanied by an affidavit on oath. The candidate is also required to maintain day‑to‑day accounts of expenditure and submit the same to the returning officer on the following day by 2.00 p.m. The learned judge considered that in Laxmibai v. The Collector, Nanded and Others, the Supreme Court in its decision dated 14 February 2020 concluded that Section 14B of the Maharashtra Village Panchayat Act gives discretion to the district collector to determine whether proper and just reasons have been given by the candidate for failure to tender an account of election expenses. It was further found that in Abhishek Vinod Patil v. The Divisional Commissioner and Another, Writ Petition No. 11477 of 2018, a division bench at Aurangabad on 27 February 2020 held that a delay of two months in tendering election accounts entails disqualification. The learned judge observed that order dated..., The order dated 15 October 2016 of the State Election Commission was issued with a view to eradicate corrupt and evil practices and to eliminate the influence of money power by imposing limitations on election expenditure by a candidate, obligating maintenance of accounts including books, bills, vouchers, etc., and to tender the same to the competent authority. Analyzing the order, the learned judge considered that accounts of expenditure on various heads are to be maintained by a person (observing that it is not restricted to an elected candidate) including expenses incurred over filing nomination forms (as some forms are likely to be rejected), bearing in mind that the recent trend has been for candidates to submit nominations with fanfare, processions, road‑shows, etc., involving a lot of expenditure. He noticed that the provisions under the order of the State Election Commission do not make any distinction between a single candidature for a post and two or more candidates vying for the same post in the election fray, and therefore the starting point of expenditure would be from the nomination form and end with the declaration of election result. He further observed that, with a view to put curbs..., The increasing use of money (economic power) having a pernicious effect on society at large, reducing the election process to a mere farce, led the Maharashtra State Election Commission to issue an order on 7 February 1995 exercising powers conferred upon it under various statutory enactments, in the interest of purity of elections to local democratic authorities, in a free, fair and efficient way, putting a limit on expenditure. The learned judge found that, going by the clauses of the Government Resolution of 1995, a candidate has to account for the entire expenses incurred by him on the election, without qualification as to whether there was a contest in the election or the candidate was elected unopposed. The learned judge considered that paragraphs 7, 8 and 9 of the judgment in the case of Dipmala, wife of Ravindra Chachane v. Additional Commissioner, Nagpur, 2020 (1) Mh. L.J. 900, indicate that for a particular post, only if there are two or more candidates does it amount to a contest, and candidates incurring expenditure in the contest are obliged to tender their accounts., As the order dated 7 February 1995 issued by the State Election Commission had not been brought to the notice of the court in the case of Dipmala (supra), as was the case with the order of the State Election Commission dated 15 July 2016, the judge deferred appreciating the controversy. He therefore considered it appropriate that a larger bench should resolve the issue. While in the said group of writ petitions the learned single judge deemed it appropriate, in the given facts and circumstances, to limit the operation of the order of the district collector to the period of the term of the election, the order of the district collector was modified to be operative only until the elections, which were to take place in August/September 2020, thereby enabling the petitioners to contest the ongoing/forthcoming elections, and the petitions were disposed of. The learned single judge subsequently framed the following question for reference., The question posed is whether a candidate elected unopposed is required to tender his accounts of election expenditure under Section 14B(1) of the Maharashtra Village Panchayat Act, Section 16(1D) of the Maharashtra Municipalities, Nagar Panchayats and Townships Act, 1965, and Section 15B(1) of the Maharashtra Zilla Parishad and Panchayat Samiti Act, 1961, in view of the order dated 7 February 1995 and the Government Resolution dated 15 October 2016. Learned advocate Mister Jiwan Patil for the petitioners submits that, in recent times, a considerable amount of money is being expended by candidates in elections, misutilizing monetary value to sway voters in their favour. To prevent and deter candidates from misutilization of money, provisions have been introduced and incorporated in various statutes, viz. Section 14B(1) of the Maharashtra Village Panchayat Act and the provisions referred to in the framed question. He draws the Court’s attention to the fact that the provisions of Section 14B of the Maharashtra Village Panchayat Act are similar to provisions in other enactments. Mister Patil further submits that non‑furnishing of accounts within the prescribed time would not, in all cases, entail disqualification; relevant facts would need to be considered., The relevant facts must necessarily be taken into account and a mechanical approach must be eschewed. The discretion invested in the authority has been conferred with a view not to interrupt the election of returned candidates, but to ensure the sanctity of the process. The vested discretion is to be exercised, as far as possible, to maintain the election of a person who has been democratically elected. He further submits that, however, in many cases the candidate is elected without any contest, unopposed, eliminating expenses required for an election contest, and in such a clear case, non‑submission of accounts, while there are no election expenses of significance, may be appropriately construed without disturbing the election of a democratically elected person. In support of his case, he places heavy reliance on the decision in Dipmala’s case (supra) as well as on the decision in the case of Sahebrao Dashrathrao Patole v. State of Maharashtra and Others, 2010 (5) Mh. L.J. 462. He submits that the Supreme Court in the case of L. R. Shivarama..., The Supreme Court in L. R. Shivarama Gowda and Others v. T. M. Chandrashekar (Deceased) by Learned Respondents and Others, (1999) 1 SCC 666, considered that failure to maintain true and correct accounts by itself does not amount to a corrupt practice of incurring or authorizing excess expenditure justifying setting aside the election. Learned counsel for the State, Mister S. K. Tambe, reiterated the submissions advanced during the hearing of the group of writ petitions and requested that a proper view be taken to prevent the elections from being affected by economic malady. Mister Ajit Kadethankar, counsel for the State Election Commission, participated in the hearing providing valuable assistance. He tendered a compilation of relevant papers and documents prefaced with notes on the historical background of election processes and developments taking place chronologically, including legal ones. He took the Court through various orders passed by the State Election Commission from time to time, viz. the orders dated 7 February 1995 and 15 October 2016, highlighting their features and pointing out relevant aspects and the underlying purpose and purport., In the present case, when the question has been posed as referred to above, the provisions must be examined. While the provisions are verbatim the same except for the duration of disqualification, it is useful to reproduce the provision from the Maharashtra Village Panchayat Act, as the reference primarily originates from matters under the same, which is as follows: 14B. Disqualification by State Election Commission (1) If the State Election Commission is satisfied that a person (a) has failed to lodge an account of election expenses within the time and in the manner required by the State Election Commission, and (b) has no good reason or justification for such failure, the State Election Commission may, by an order published in the official gazette, declare him to be disqualified and such person shall be disqualified for being a member of the panchayat or for contesting an election for a period of five years from the date of that order. (2) The State Election Commission may, for reasons to be recorded, remove any disqualification under sub‑section (1) or reduce the period of any such disqualification., Statutory provisions are in pari materia in all the enactments, empowering the State Election Commission to disqualify a person for failure to submit election expenses within the prescribed timeline and manner, for lack of good or justifiable reasons. The provisions are aimed at a fair, pure and transparent election process in a civilized democratic society. The provisions show that disqualification would be incurred for failure to lodge an account of election expenses within time, when there is no good reason or justification. Going by the statutory provisions, the term ‘election expenses’ becomes central, as to what would constitute the same and its implications and connotations. The Election Commission has power of superintendence, control over affairs concerning elections, and is empowered to issue directions. The provision empowers the State Election Commission to legislate on issues concerning election expenses in the State of Maharashtra., The State Election Commission, after its establishment, issued for the first time in 1994 a mandate requiring candidates to submit election expenses within a timeline. This requirement has been developed and improved from time to time. Regulations have been introduced by the State Election Commission issuing orders with a view to maintain purity in elections, to check and control financial affairs and transactions of candidates and political parties during elections, as this is essential. These regulations include putting limits on the quantum of election expenses, requiring furnishing of details of election expenses by the candidates, obliging observance, and providing for consequences on non‑compliance. Money, its power and influence have a strong propensity to subvert the cause of the privileged class, putting them in a distinctly advantageous position. It appears that provisions have emerged to address the unethical, unlawful and corrupt use of money to influence, entice, and induce people, rather than corrupting..., The money, with its aid, has led to unlawful practices, reversely affecting the underlying object of democratic governance. The regulatory provisions and measures work to keep candidates in check, to control and restrict their unbridled tendencies, desires and ambitions, and to warn them not to drift to unethical means to get elected. This would give preference to persons who have the potential to do greater good for a large number of people on their own rather than being elected by corrupt means using money and economic tools, which have a concomitant propensity to recoup the expenses incurred by indulging in further unethical practices, to hoard money and wealth, to preserve their positions, and to get elected or re‑elected to positions of power meant for public good, with selfish motives, creating sort of feudal structures which have latent potential to subvert the democratic process., To effectively monitor election expenses, orders have been issued by the State Election Commission from time to time, improving and developing mandatory requirements. Orders were issued in 2011 putting a limit on election expenses. An order dated 3 August 2016 was issued by the Maharashtra State Election Commission superseding all earlier orders. This was further elaborated by subsequent orders concerning the time and manner to lodge election expenses, forms of affidavits and vouchers to be lodged in respect of the same. The order dated 15 October 2016, inter alia, provides the time and manner in which election expenses are to be furnished and prescribes Form No. 2 under its schedule, which includes, among others, expenses on nomination., The order further refers to the fee of nomination, earnest amount, expenses over campaigning offices, campaigning grounds, vehicles, candidates’ own vehicles, office vehicles and vehicles provided to workers, etc. The clauses prescribe a limit on the election expenditure by a candidate. The orders are enforceable. The learned single judge deciding Dipmala’s case (supra) observed that, while the petitioners were the only validly nominated candidates for the Gram Panchayat and were elected unopposed, a further election process was not required to be undertaken. Since there was no contest, the petitioners were not required to canvass or expend on election. The facts indicated that there were good reasons and justification for not lodging an account of election expenses for the purposes of Section 14B, and this was sufficient for non‑insistence on submission of election expenses. While such a reason had been advanced in response to the show‑cause notice, it had not received due consideration, which is a matter worth examining, having regard to clause (a) of sub‑section (1) of Section 14B of the Maharashtra Village..., In Dipmala’s case (supra) it emerges that neither the order of the Election Commission dated 15 October 2016, showing what would comprise election expenses, nor the provisions of the Representation of People Act were referred to and brought to the notice of the Court as submitted on behalf of the State, nor the earlier order of the State Election Commission dated 7 February 1995 had been pointed out. The matter was viewed, it appears, from the facts emphasized, namely that expenses post‑validation of nomination were not required as the candidates were unopposed and there was no occasion for a contest. The matter, discernibly, appears to have been pressed, addressed and contested without reference to, or oblivious of, the orders issued by the State Election Commission and relevant provisions. The emphasized facts were appreciated in the matter, but the Court was unaware of the relevant orders issued by the State Election Commission. There is no form, much less a pronounced ratio, that in all cases of unopposed election and/or contest‑free..., The question remains whether, in unopposed elections, an account of election expenses would not be required to be furnished at all. The nomination fee, earnest money, etc., all form part of election expenses, as emanates from the order issued by the State Election Commission in 2016. The election schedule Form No. 2 shows that total election expenses comprise, inter alia, spendings referred to therein, including the items mentioned above. All pre‑arrangements made for election by the candidates even before filing nomination, over the items referred to in Form No. 2, may also be relevant. The stages of an election generally begin for candidates with purchasing the nomination form, its submission and validation by the returning officer, and even with purchase of the voters list before nomination. There is a considerable time gap between submission of nomination, scrutiny and validation. It would not be out of place to consider, as referred to by the learned single judge in referring the matter to a larger bench, that the recent trend of candidates has been to declare and publicize their..., The candidature is often announced with much fanfare, submitting nomination forms by procession, with bands, road‑shows, cutouts, advertisements, celebrating the same, even before submission, scrutiny and validation of the nomination. Naturally, a lot of expenditure is involved. On many occasions, candidates have been indulging in filing multiple nomination forms with a view to ensure that their candidature is not blocked, debarred, excluded, sidelined, or held up on account of a defect or deficiency in a form, and that at least one of the nomination forms would enable them to stand in the fray. With such an approach, candidates in elections on many occasions make substantial arrangements for campaigning offices, grounds, advertising, payments to workers, securing voters’ lists, etc., even before the date of finalisation of nomination, which indeed involves expenditure. It would not be correct to say that election expenses arise only when there is a contest. Thus, it cannot be said in all cases that there would be no election expenses in contest‑free or unopposed elections, and candidates elected unopposed would be exempt from tendering election expenses., In view of the foregoing, we deem it appropriate to affirmatively regard the question posed. The question referred to above is answered accordingly. The answer, however, does not purport to affect in any way or to do away with the exercise of power and discretion by the authorities under the provisions referred to.
id_661	0	Juma Masjid of Bombay Trust, Petitioner, versus State of Maharashtra and Others, Respondents. Mr. M. A. Vaid and wife Ms. Shagufa Ansari, Ms. Vidhya Seth on behalf of Messrs Vaid and Associates for the Petitioner. Ms. Jyoti Chavan, Additional Government Pleader for Respondent No.1 – State (through video conference). Papers are allowed to be produced at 12:30 p.m., By this petition filed under Article 226 of the Constitution of India, the petitioner has prayed for a writ of mandamus directing the respondents to allow Muslims to offer five times prayer and Taraweeh namaz at the mosque situated at 46, Janjikar Street, Mumbai 400 002 from 14 April 2021 till the end of Ramadan adhering to social distancing and Standard Operating Procedures in force., In view of the extreme urgency, we have allowed the production of papers at 12:30 p.m., Mrs. Jyoti Chavan, learned Additional Government Pleader for Respondent No.1 – State, states that the papers of the writ petition were served at midnight and the notice of mentioning the matter was issued at 11:30 p.m. We have, however, heard the learned counsel for the petitioner and the learned Additional Government Pleader for the respondent., The petitioner claims to be a public trust registered under the Bombay Trust Act and also under the Wakf Act, 1995. It is the case of the petitioner that the subject mosque is spread over one acre and that at a time on a normal day 7,000 people offer namaz, which shows that it is quite spacious and all the Standard Operating Procedures meant to break the chain of COVID‑19 can be very easily followed and adhered to under supervision of local police as may be required., Learned counsel for the petitioner submits that the holy month of Ramadan is starting from today. It is during the month of Ramadan that the Muslim religion obligates Muslims to observe fast for 30 days along with five daily prayers and also to pray Tarawih in congregation (jamaat), which is considered to have more social and spiritual benefit than praying individually. The counsel submits that the petitioner be permitted to offer prayers five times at the said mosque from 14 April 2021 till the end of Ramadan. He submits that all the persons who would offer such prayers would adhere to social distancing and Standard Operating Procedures in force., Learned counsel for the petitioner submits that by the Government Order dated 13 April 2021, the State of Maharashtra directed that all religious places of worship remain closed with effect from 14 April 2021 till 1 May 2021., In the writ petition, the petitioner has also invoked the provisions of Article 25 of the Constitution of India., Learned counsel for the petitioner invited our attention to the order dated 12 April 2021 passed by the Delhi High Court in Writ Petition (CRL) No. 421 of 2021 in the case of Delhi Wakf Board versus Government of NCT of Delhi and Others, and would submit that the Delhi High Court by the said order dated 12 April 2021 has permitted the petitioners therein to offer prayers during the month of Ramadan on various conditions and by providing safeguards. He submits that the petition in this case also may be permitted to offer prayers as prayed on similar terms as enforced by the Delhi High Court by the order dated 12 April 2021., Mrs. Chavan, learned Additional Government Pleader for Respondent No.1 – State, submits that in Maharashtra as of today there are more than 65,000 COVID‑19 cases. In Mumbai itself there are more than 11,000 active COVID‑19 cases. She submits that considering this critical situation prevailing in the State of Maharashtra and more particularly in Mumbai, the State of Maharashtra has already issued an order 'Break the Chain'. She submits that considering the prevailing situation in the State, the State Government has rightly considered that all religious places of worship remain closed till 7:00 a.m. on 1 May 2021 with effect from 8:00 p.m. on 14 April 2021. She submits that the said restrictions apply to the members of all communities irrespective of the religion they follow. She submits that no case is made out for invoking Article 25 of the Constitution of India. The Bombay High Court has rejected permission in the past for such religious ceremonies., A perusal of the order dated 13 April 2021 issued by the Government of Maharashtra under the provisions of the Disaster Management Act, 2005 would show that the State Government, having been satisfied that the State of Maharashtra is threatened with the spread of the COVID‑19 virus, considered it imperative to take certain emergency measures to prevent and contain the spread of the virus., The Government, in exercise of the powers conferred under Section 2 of the Epidemic Diseases Act, 1897 read with other powers, found it expedient to enforce various measures throughout the State from 8:00 p.m. on 14 April 2021 till 7:00 a.m. on 1 May 2021 to break the chain of transmission., A perusal of the said order indicates that the State of Maharashtra has already enforced a night curfew under Section 144 of the Indian Penal Code and has restricted all activities except those falling under the essential category specified therein. The State Government has also banned all religious, social, cultural or political functions of any kind during this period. In paragraph 7 of the said order, the State Government made it clear that religious places of worship shall remain closed. All personnel engaged in the service of the place of worship shall continue to perform their duties though no outside visitor shall be allowed., In our view, these restrictions imposed by the State Government in the order dated 13 April 2021 have been imposed after considering the prevailing circumstances and various other pros and cons., The Bombay High Court, in a judgment delivered on 27 November 2020 in the case of Dhananjay Mohan Deshmukh and Others versus the Sub-Divisional Officer, Igatpuri‑Trimbakeshwar Sub‑Division, Nashik and Others in Writ Petition (Stamp) No. 96664 of 2020, considered a petition seeking permission to carry out the age‑old tradition of Rath Yatra of Lord Trimbakeshwar on the occasion of Tripurari Pournima Rath Yatra scheduled on 29 November 2020. The petitioner submitted that all twelve Jyotirlingas have deep sanctity for people belonging to the Hindu religion across India and that the Trimbakeshwar temple is one such temple. The Rath Yatra had been held for more than five decades. The petitioner requested permission to permit only two priests to pull the bullock‑cart even by imposing sealing of the entire locality for 24 hours prior to the date of procession., The Bombay High Court, after adverting to various orders passed by this Court and the Honorable Supreme Court, dismissed the writ petition. The Court held that Article 25 of the Constitution of India, though it permits all persons equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion, is subject to public order, morality and health. The Court held that such congregation, if permission were granted, would likely seriously affect public order and health and would violate the conditions imposed under Article 25 of the Constitution of India., The Court adverted to the order passed by this Court in the case of Warkari Seva Sangh and Others versus the State of Maharashtra refusing permission to carry out Ashadhi Ekadashi Wari/Yatra, a tradition followed uninterruptedly for the last 800 years, considering the ground reality and factum of the ongoing pandemic situation. The Court also considered the order passed by the Delhi High Court in the case of Durga Jan Seva Trust versus Government of NCT of Delhi where permission was applied for performing Chhat Puja, a major religious festival celebrated by the people of Bihar and Eastern Uttar Pradesh on an annual basis. The Delhi High Court held that the petitioner should have been aware of the situation before approaching the Court for such relief. While religious sentiments of all sections of society must be respected, the right to life and health of the public at large cannot be sacrificed at the altar of a right to celebrate a festival, however significant it may be for a particular community. This Court accepted the views expressed by the Delhi High Court in the said judgment. The principles laid down by this Court and the Delhi High Court apply to the facts of this case., Insofar as the order dated 12 April 2021 passed by the learned Single Judge of the Delhi High Court in the case of Delhi Wakf Board versus Government of NCT of Delhi and Others is concerned, a perusal of the said order clearly indicates that the Union of India had agreed to allow the petitioners therein to offer prayers subject to following COVID‑19 norms. In our view, Ms. Chavan, learned Additional Government Pleader for Respondent No.1 – State, is right in her submission that the said order passed by the Delhi High Court cannot be considered as a precedent in this case. Considering the prevailing situation and the ground reality in the State of Maharashtra, we cannot permit the petitioner to perform any prayers in the said mosque in violation of the order dated 13 April 2021 issued by the Government of Maharashtra, which is issued in public interest and for the safety of all residents of Maharashtra. In our view, offering of prayers only in the mosque as sought by the petitioner cannot be considered, in view of the ongoing critical COVID‑19 situation which is serious in nature., In our view, the petition is devoid of merits and is accordingly dismissed., There shall be no order as to costs.
id_662	0	Bail Application\nUnion Territory of Jammu and Kashmir vs. Shams-ud-din Khan and Others\nFIR No. 61/2021, Police Station Boniyar, under Sections 384, 341, 354, 419, 506, 34 of the Indian Penal Code and Section 67(A) of the Income Tax Act, dated 16 August 2021. Present: Mr. Shahber Ayaz, Learned Additional Public Prosecutor; Shahzad Yatoo for the Union Territory; Safina Kazmi for the accused., The bail application under Section 439 of the Criminal Procedure Code on behalf of accused M. Ilyas Khan, dated 4 August 2021, is disposed of. I have heard both sides and examined the record. The law of bail must balance the society's need for protection against the fundamental presumption of innocence of an accused until proven guilty., Personal liberty is a priceless treasure founded on constitutional rights and human‑rights principles. Article 21 of the Constitution mandates that no person shall be deprived of life or personal liberty except according to procedure established by law. India is a signatory to the International Covenant on Civil and Political Rights, 1966, and Article 21 must be understood in that light. The presumption of innocence is a human right; liberty should not be interfered with unless there are cogent grounds., The basic rule is to release an accused on bail unless there are circumstances suggesting a risk of fleeing or thwarting the course of justice. Bail is not punitive or preventive; it is intended to secure the accused's appearance at trial. Deprivation of liberty before conviction is a punishment and may be justified only to ensure the accused stands trial., While considering an application for bail under Sections 437 or 439 of the Criminal Procedure Code, the court must keep in view that grant of bail is the rule and committal to jail is the exception. The seriousness of the offence should not be the sole ground for refusal. The court must balance the rights of the accused with the interests of society, indicating brief reasons for granting or refusing bail., The Supreme Court has laid down considerations for bail in non‑bailable offences, including: (i) prima facie evidence of commission of the offence; (ii) nature of accusation and evidence; (iii) gravity of the offence and punishment; (iv) likelihood of the accused appearing at trial; (v) character, behaviour, means and standing of the accused; (vi) likelihood of repeat offence; (vii) risk of tampering with witnesses; (viii) danger of justice being thwarted; and (ix) any other factor peculiar to the case., Judicial discretion in bail matters is not arbitrary. As observed in Gurucharan Singh and Others v. State (AIR 1978 SC 179), there is no hard and fast rule; each case must be decided on its facts and circumstances. The discretion must be exercised with sound legal principles, not whimsical sentiment., It is settled law that while disposing of bail applications under Sections 437/439 of the Criminal Procedure Code, courts should assign reasons for their order, but detailed analysis of evidence is not required at this stage. The order must not suffer from non‑application of mind., In the present case, the accused have been booked in FIR No. 61/2021 under the aforementioned sections. Police received information on 3 August 2021 that M. Ilyas Khan and others were secretly recording videos of young couples visiting Lower Jhelum, posing as police or army personnel, beating, threatening, harassing and demanding valuables. The police seized mobile phones on 4 August 2021, obtaining audio, video and chat records. Statements of witnesses were recorded, establishing the charges against Accused Nos. 1 to 3., Accused Nos. 2 and 3 were arrested on the spot and are in police custody. During investigation, a girl and a boy were presented before the Jammu and Kashmir Metropolitan Police Court, and their statements were recorded under Section 164 of the Criminal Procedure Code. It was revealed that Accused Nos. 1 and 2 posed as police/army personnel, locked the couple in a vehicle, snatched cash of Rs. 300 and later, Accused No. 1, who works with the Army GDHC, misused his uniform and ID to harass a girl in Baramulla, threatening to make a video viral if she did not comply. The offences are established, and further investigation is required to determine whether the videos have been shared with other groups., Learned Additional Public Prosecutor objected to bail, arguing that the accused are involved in serious, heinous offences against society and women, and that the investigation is at an early stage, necessitating denial of bail to maintain public confidence. Learned counsel for the accused contended that the accused has not committed any offence, the investigation is complete, the offences are not serious, and that the accused suffers from serious medical issues, submitting prescriptions and hospital reports. The prosecution countered that the medical records are dated 2013 and irrelevant, and that the accused is currently healthy., The court examined the cited authorities, including Sanjay Chandra v. Central Bureau of Investigation (AIR 2012 SC 830), Sundeep Kumar Bafna v. State of Maharashtra (AIR 2014 SC 1745), Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav (AIR 2005 SC 921), Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598, and several High Court decisions. While bail is the general rule, the seriousness of the offence, the risk of tampering with witnesses, and the ongoing investigation justify an exception in this case., In view of the serious and sensitive nature of the offences, the possibility of intimidation of witnesses, and the fact that the investigation is still underway, this Jammu and Kashmir High Court is not inclined to grant bail at this stage. The application is therefore rejected. Application is disposed of. Be consigned to the record after due compilation. Announced by Shahber Ayaz.
id_663	0	S.B. Criminal Miscellaneous Bail Application No. 6918/2021. Ramdhan, son of Basti Ram Bishnoi, aged about 27 years, residing at Dharnok, Police Station Panchu, District Bikaner, presently lodged in Sub-Jail, Sangaria. Petitioner versus State of Rajasthan through Public Prosecutor. For the petitioner: Mr. Ramawatar Singh Choudhary (through Video Conferencing). For the respondents: Mr. Farzand Ali, Government Advocate cum Additional Advocate General with Mr. Mukhtiyar Khan, Deputy Government Advocate; Mr. Shiv Kumar Bhati, Deputy Government Advocate; Mr. Mukesh Trivedi, Deputy Government Advocate; Mr. Laxman Solanki, Deputy Government Advocate; Mr. Shrawan Bishnoi, Deputy Government Advocate; Mr. Vikram Sharma, Deputy Government Advocate (present in person)., While arguing the matter, learned counsel Shri R.S. Choudhary appearing on behalf of the petitioner through video conferencing used filthy language before the Rajasthan High Court and argued loudly in a shouting manner, which is against the decorum of the Rajasthan High Court and amounted to contempt of court. During the hearing of the bail application, it was brought to the notice of the Rajasthan High Court that two other cases of similar nature are pending against the accused‑applicant and the investigation in the present matter has not been completed. Considering the facts and circumstances, the gravity of the offence and the criminal antecedents of the accused‑applicant, the Rajasthan High Court expressed the opinion that the accused is not entitled to be released on bail and offered the counsel for the petitioner the option either to have the matter adjourned or to withdraw the bail application with liberty to renew the prayer after filing of the charge sheet., At this juncture, counsel for the petitioner, Mr. Ramawatar Singh Choudhary, inappropriately made unwelcoming comments upon the Rajasthan High Court. His behaviour and demeanour malign the dignity and decorum of the Rajasthan High Court. The counsel deliberately and willfully uttered obnoxious and filthy language normally used by cheapsters and street goons. He did not hold his horses and went on uttering direct abuses to the Rajasthan High Court personally, further commenting negatively upon the functioning of the judicial side. The Rajasthan High Court was aghast and stunned by such intimidating and defamatory acts and the scurrilous allegations aimed at cowing down the judicial system. The entire courtroom, including the Public Prosecutors of the State, Union and Court Staff, and the lady Court Master, were shocked to see such obnoxious behaviour. The conduct of the counsel has put a dent in the constitutional and judicial basic structure, diminished the mutual respect between the Bar and the Bench, and, if suitable actions are not taken, will breach public faith, trust and respect for the justice delivery system, injuring the self‑esteem of a sitting judge and encouraging other lawyers to behave similarly., The Rajasthan High Court therefore condemns the conduct and behaviour of Mr. Ramawatar Singh Choudhary, counsel appearing for the petitioner. Although the act warrants initiation of contempt proceedings, a lenient view is taken to maintain judicial dignity and decorum of the Rajasthan High Court. The facts are brought to the notice of the Bar Council of Rajasthan to take suitable action against counsel Mr. Ramawatar Singh Choudhary forthwith. The Registry is directed to send a copy of this order to the Chairman/Secretary, Bar Council of Rajasthan, Jodhpur, and the file may be placed before the Honorable Chief Justice of Rajasthan High Court for further action.

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