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It is not defamation in A to express in good faith any opinion whatever respecting Z's conduct in petitioning Government on a public question, in signing a requisition for a meeting on a public question, in presiding or attending at such meeting, in forming or joining any society which invites the public support, in voting or canvassing for a particular candidate for any situation in the efficient discharge of the duties of which the public is interested. Exception 4. It is not defamation to publish a substantially true report of the proceedings of the appropriate court, or of the result of any such proceedings., Explanation. A Magistrate or other officer holding an inquiry in open Court preliminary to a trial in a Court is a Court within the meaning of the above section. Exception 5. It is not defamation to express in good faith any opinion whatever respecting the merits of any case, civil or criminal, which has been decided by a Court, or respecting the conduct of any person as a party, witness or agent in any such case, or respecting the character of such person, as far as his character appears in that conduct, and no further. Illustrations. (a) A says, \I think Z's evidence on that trial is so contradictory that he must be stupid or dishonest.\ A is within this exception if he says this in good faith, because the opinion respects Z's character as it appears in Z's conduct as a witness, and no further. (b) But if A says, \I do not believe what Z asserted at that trial because I know him to be a man without veracity,\ A is not within this exception, because the opinion expresses Z's character without being founded on Z's conduct as a witness., Exception 6. It is not defamation to express in good faith any opinion respecting the merits of any performance which its author has submitted to the judgment of the public, or respecting the character of the author so far as his character appears in such performance, and no further. Explanation. A performance may be submitted to the judgment of the public expressly or by acts on the part of the author which imply such submission to the judgment of the public. Illustrations. (a) A person who publishes a book, submits that book to the judgment of the public. (b) A person who makes a speech in public, submits that speech to the judgment of the public. (c) An actor or singer who appears on a public stage, submits his acting or singing to the judgment of the public. (d) A says of a book published by Z, \Z's book is foolish; Z must be a weak man. Z's book is indecent; Z must be a man of impure mind.\ A is within the exception if he says this in good faith, because the opinion respects Z's character only as it appears in Z's book, and no further. (e) But if A says, \I am not surprised that Z's book is foolish and indecent, for he is a weak man and a libertine,\ A is not within this exception, because the opinion of Z's character is not founded on Z's book., Exception 7. It is not defamation for a person having over another any authority, either conferred by law or arising out of a lawful contract made with that other, to pass in good faith any censure on the conduct of that other in matters to which such lawful authority relates. Illustration. A Judge censuring in good faith the conduct of a witness, or of an officer of the appropriate court; a head of a department censuring in good faith those who are under his orders; a parent censuring in good faith a child in the presence of other children; a schoolmaster, whose authority is derived from a parent, censuring in good faith a pupil in the presence of other pupils; a master censuring a servant in good faith for remissness in service; a banker censuring in good faith the cashier of his bank for the conduct of such cashier., Exception 8. It is not defamation to prefer in good faith an accusation against any person to any of those who have lawful authority over that person with respect to the subject‑matter of the accusation. Illustration. If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, a child, to Z's father, A is within this exception., Exception 9. It is not defamation to make an imputation on the character of another provided that the imputation is made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good. Illustrations. (a) A, a shopkeeper, says to B, who manages his business, \Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty.\ A is within the exception if he has made this imputation on Z in good faith for the protection of his own interests. (b) A, a Magistrate, in making a report to his own superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith and for the public good, A is within the exception., Exception 10. It is not defamation to convey a caution, in good faith, to one person against another, provided that such caution is intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good. (2) Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both, or with community service. (3) Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both. (4) Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that it contains such matter, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both., Section 357. Whoever, being bound by a lawful contract to attend on or to supply the wants of any person who, by reason of youth, unsoundness of mind, disease or bodily weakness, is helpless or incapable of providing for his own safety or of supplying his own wants, voluntarily omits to do so, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five thousand rupees, or with both., Section 358. (1) The Indian Penal Code is hereby repealed. (2) Notwithstanding the repeal of the Code referred to in sub‑section (1), it shall not affect (a) the previous operation of the Code so repealed or anything duly done or suffered thereunder; (b) any right, privilege, obligation or liability acquired, accrued or incurred under the Code so repealed; (c) any penalty or punishment incurred in respect of any offences committed against the Code so repealed; (d) any investigation or remedy in respect of any such penalty or punishment; (e) any proceeding, investigation or remedy in respect of any such penalty or punishment, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty may be imposed as if that Code had not been repealed. (3) Notwithstanding such repeal, anything done or any action taken under the said Code shall be deemed to have been done or taken under the corresponding provisions of this Sanhita. (4) 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 the repeal., In the year 1834, the first Indian Law Commission was constituted under the chairmanship of Lord Thomas Babington Macaulay to examine the jurisdiction, power and rules of the existing courts as well as the police establishments and the laws in force in India. The Commission suggested various enactments to the Government. One of the important recommendations made by the Commission was on the Indian Penal Code, which was enacted in 1860 and the said Code is still continuing in the country with some amendments made thereto from time to time., The Government considered it expedient and necessary to review the existing criminal laws with an aim to strengthen law and order and also focus on simplifying legal procedures so that ease of living is ensured to the common man. The Government also considered to make existing laws relevant to the contemporary situation and provide speedy justice to the common man. Accordingly, various stakeholders were consulted keeping in mind contemporary needs and aspirations of the people with a view to create a legal structure which is citizen‑centric and to secure life and liberty of the citizens., It is proposed to enact a new law, by repealing the Indian Penal Code, to streamline provisions relating to offences and penalties. It is proposed to provide first‑time community service as one of the punishments for petty offences. Offences against women and children, murder and offences against the State have been given precedence. Some offences have been made gender neutral. In order to deal effectively with the problem of organised crimes and terrorist activities, new offences of terrorist acts and organised crime have been added in the Bill with deterrent punishments. A new offence on acts of armed rebellion, subversive activities, separatist activities or endangering sovereignty or unity and integrity of India has also been added. The fines and punishments for various offences have also been suitably enhanced., Accordingly, a Bill, namely the Bharatiya Nyaya Sanhita, 2023, was introduced in the Lok Sabha on 11th August 2023. The Bill was referred to the Department‑related Parliamentary Standing Committee on Home Affairs for its consideration and report. The Committee, after deliberations, made its recommendations in its report submitted on 10th November 2023. The recommendations made by the Committee have been considered by the Government and it has been decided to withdraw the Bill pending in Lok Sabha and introduce a new Bill incorporating those recommendations that have been accepted by the Government., The Notes on Clauses explain the various provisions of the Bill. The Bill seeks to achieve the above objectives. 9th December 2023. AMIT SHAH. Clause 1 of the Bill seeks to provide short title, commencement and application of the proposed legislation. Clause 2 of the Bill seeks to define certain words and expressions used in the proposed legislation such as act, omission, counterfeit, dishonestly, gender, good faith, offence, voluntarily, etc. Clause 3 of the Bill seeks to provide general explanations and expressions enumerated in the proposed legislation subject to the exceptions contained in the \General Exceptions\ chapter. Clause 4 of the Bill seeks to provide punishments such as death, imprisonment for life, forfeiture of property, fine and community service for offences provided under the provisions of the proposed Bill. Clause 5 of the Bill relates to commutation of sentence and provides that the appropriate Government may, without the consent of the offender, commute any punishment under this Sanhita to any other punishment in accordance with section 474 of the Bharatiya Nagarik Suraksha Sanhita, 2023, further explaining the term \appropriate Government\., Clause 6 of the Bill seeks to provide that fractions of terms of punishment of imprisonment for life shall be reckoned as equivalent to twenty years unless otherwise provided. Clause 7 of the Bill seeks to provide for sentence which may be either wholly or partly rigorous or simple. It provides that in every case in which an offender is punishable with imprisonment of either description, it shall be competent to the Court which sentences such offender to direct in the sentence that such imprisonment shall be wholly rigorous, or wholly simple, or that any part of such imprisonment shall be rigorous and the rest simple. Clause 8 of the Bill seeks to provide for amount of fine in default of payment of fine and imprisonment in default of payment of fine. It provides that where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited but shall not be excessive, and also provides the term or type of imprisonment under given circumstances. It further provides that the fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender is liable to imprisonment for a longer period than six years, then at any time prior to the expiration of that period; the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts., Clause 9 of the Bill seeks to provide for the limit of punishment for several offences. It provides that where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such offences unless it is expressly provided. Clause 10 of the Bill seeks to provide that in all cases in which judgment is given that a person is guilty of one of several offences specified in the judgment, but it is doubtful which of these offences he is guilty of, the offender shall be punished for the offence for which the lowest punishment is provided if the same punishment is not provided for all. Clause 11 of the Bill seeks to provide the power to the Court for solitary confinement. It provides that whenever any person is convicted of an offence for which under this Sanhita the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the scale under this clause. Clause 12 of the Bill seeks to provide for limit of solitary confinement in certain cases. It provides that in executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods; and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods., Clause 13 of the Bill seeks to provide for enhanced punishment for certain offences after previous conviction. Clause 14 of the Bill seeks to exempt a person who acts by mistake of fact and not by mistake of law in good faith believing himself to be bound by law to do it. Clause 15 of the Bill seeks to provide that nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be, given to him by law. Clause 16 of the Bill seeks to exempt a person from an offence when acting under a judgment or order notwithstanding that the Court had no jurisdiction to pass such judgment or order, provided the person doing the act in good faith believes that the Court had such jurisdiction. Clause 17 of the Bill seeks to provide that nothing is an offence which is done by any person who is justified by law, or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law, in doing it. Clause 18 of the Bill seeks to provide that nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution., Clause 19 of the Bill seeks to provide that nothing is an offence merely by reason of its being done with the knowledge that it is likely to cause harm, if it is done without any criminal intention to cause harm, and in good faith for the purpose of preventing or avoiding other harm to person or property. Clause 20 of the Bill seeks to provide that nothing is an offence which is done by a child under seven years of age. Clause 21 of the Bill seeks to provide that nothing is an offence which is done by a child above seven years of age and under twelve, who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. Clause 22 of the Bill seeks to provide that nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law. Clause 23 of the Bill seeks to provide that nothing is an offence which is done by a person under intoxication provided that the thing which intoxicated him was administered to him without his knowledge or against his will. Clause 24 of the Bill seeks to provide that in cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable as if he had the same knowledge as he would have had if he had not been intoxicated, unless the intoxicant was administered without his knowledge or against his will., Clause 25 of the Bill seeks to provide that nothing is an offence which is not intended to cause death or grievous hurt when the harm is done with the consent of a person above eighteen years of age, whether express or implied, to suffer that harm; or by reason of any harm which it may be known by the doer to be likely to cause to any such person who has consented to take the risk of that harm. Clause 26 of the Bill seeks to provide that nothing is an offence when the act not intended to cause death is done by consent in good faith and for the person's benefit. Clause 27 of the Bill seeks to provide that nothing is an offence when an act is done in good faith for the benefit of a child or a person with unsound mind, by or with the consent of a guardian. Clause 28 of the Bill seeks to provide that consent is not a consent as intended by the proposed legislation when it is given under fear of injury, misconception of facts, unsoundness of mind, intoxication or by a person under twelve years of age. Clause 29 of the Bill seeks to provide that the exceptions in clauses 25, 26 and 27 do not extend to acts which are offences independently of any harm which they may cause, or be intended to cause, or be known to be likely to cause, to the person giving the consent, or on whose behalf the consent is given. Clause 30 of the Bill seeks to provide that nothing is an offence when an act is done in good faith for the benefit of a person without consent if the circumstances are such that it is impossible for that person to signify consent, or if that person is incapable of giving consent and has no guardian or other person in lawful charge of him from whom consent could be obtained in time; the clause further states that these exceptions shall not extend under the given circumstances and that mere pecuniary benefit is not a benefit within the meaning of clauses 26, 27 and this clause., Clause 31 of the Bill seeks to provide that no communication made in good faith is an offence by reason of any harm to the person to whom it is made, if it is made for the benefit of that person. Clause 32 of the Bill seeks to provide that nothing is an offence done by a person, except murder and offences against the State punishable with death, which is done by a person who is compelled to do it by threats which, at the time of doing it, reasonably cause the apprehension of instant death to that person. It further explains that a person who, of his own accord, or by reason of a threat of being beaten, joins a gang of dacoits, knowing their character, is not entitled to the benefit of this exception, whereas a person seized by a gang of dacoits and forced, by threat of instant death, to do a thing which is an offence by law—for example, a smith compelled to take his tools and force the door of a house for the dacoits to enter and plunder it—is entitled to the benefit of this exception. Clause 33 of the Bill seeks to provide that nothing is an offence by reason that it causes, or is intended to cause, or is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm. Clause 34 of the Bill seeks to provide that nothing is an offence which is done in the exercise of the right of private defence. Clause 35 of the Bill seeks to provide that every person has a right of private defence of the body and of property subject to the restrictions contained in clause 37., Clause 36 of the Bill seeks to provide that nothing is an offence when an act is done in exercise of the right of private defence, due to lack of maturity, unsoundness of mind, intoxication, or any misconception on the part of the person doing that act; however, every person has the same right of private defence against that act as if the act were an offence. Clause 37 of the Bill seeks to provide certain acts against which the right of private defence does not extend. It further explains that a person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, unless he knows or has reason to believe that the person doing the act is such a public servant, and similarly for acts done by direction of a public servant unless the authority is shown. Clause 38 of the Bill seeks to provide for certain circumstances where the right of private defence of the body extends to causing death. Clause 39 of the Bill seeks to provide that if the offence is not of any of the descriptions specified in clause 38, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions specified in clause 37, to the voluntary causing to the assailant of any harm other than death. Clause 40 of the Bill seeks to provide that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, and it continues as long as such apprehension continues., Clause 41 of the Bill seeks to provide that the right of private defence of property extends, under the restrictions specified in clause 37, to the voluntary causing of death or any other harm to the wrong‑doer, if the offence, the commission of which, or the attempt to commit which, occasions the exercise of the right, is an offence of any of the descriptions provided under this clause. Clause 42 of the Bill seeks to provide the circumstances when the right of private defence of property extends to causing any harm other than death. Clause 43 of the Bill seeks to provide that the right of private defence of property starts as soon as reasonable apprehension of danger to the property commences and continues as long as such apprehension continues under the given circumstances. Clause 44 of the Bill seeks to provide that if in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death and the defender is so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk. Clause 45 of the Bill seeks to provide the meaning of abetment to mean that instigation by any person to do a thing, or engagement with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or intentionally aids, by any act or illegal omission, the doing of that thing. It further explains that a person who, by wilful misrepresentation or wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing, and whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act. Clause 46 of the Bill seeks to provide that a person abets an offence who abets either the commission of an offence, or the commission of an act which would be an offence if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor. Clause 47 of the Bill seeks to provide that a person abets an offence within the meaning of this Sanhita who, in India, abets the commission of any act without and beyond India which would constitute an offence if committed in India. Clause 48 of the Bill seeks to provide that a person abets an offence within the meaning of this Sanhita who, without and beyond India, abets the commission of any act in India which would constitute an offence if committed in India. Clause 49 of the Bill seeks to provide for the punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment. It further explains that an act or offence is said to be committed in consequence of abetment when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment. Clause 50 of the Bill seeks to provide that punishment of abetment applies if the person abetted does act with a different intention from that of the abettor. Clause 51 of the Bill seeks to provide that when an act is abetted and a different act is done, the abettor is liable for the act done in the same manner and to the same extent as if he had directly abetted it, provided that the act done was a probable consequence of the abetment and was committed under the influence of the instigation or with the aid or in pursuance of the conspiracy which constituted the abetment. Clause 52 of the Bill seeks to provide that if the act for which the abettor is liable under clause 51 is committed in addition to the act abetted and constitutes a distinct offence, the abettor is liable to punishment for each of the offences. Clause 53 of the Bill seeks to provide that when an act is abetted with the intention on the part of the abettor of causing a particular effect, and an act for which the abettor is liable in consequence of the abetment causes a different effect from that intended by the abettor, the abettor is liable for the effect caused in the same manner and to the same extent as if he had abetted the act with the intention of causing that effect, provided he knew that the act abetted was likely to cause that effect. Clause 54 of the Bill seeks to provide that whenever any person, who would be liable to be punished as an abettor while absent, is present when the act or offence for which he would be punishable in consequence of the abetment is committed, he shall be deemed to have committed such act or offence.
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Clause 55 of the Bill seeks to provide that whoever abets the commission of an offence punishable with death or imprisonment for life shall, if that offence is not committed in consequence of the abetment and no express provision is made under this Sanhita for the punishment of such abetment, be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine; and if any act for which the abettor is liable in consequence of the abetment and which causes hurt to any person is done, the abettor shall be liable to imprisonment of either description for a term which may extend to fourteen years and shall also be liable to fine., Clause 56 of the Bill seeks to provide inter alia that whoever abets an offence punishable with imprisonment shall, if that offence is not committed in consequence of the abetment and no express provision is made under this Sanhita for the punishment of such abetment, be punished with imprisonment of any description provided for that offence for a term which may extend to one fourth part of the longest term provided for that offence, or with such fine as is provided for that offence, or with both., Clause 57 of the Bill seeks to provide that whoever abets the commission of an offence by the public generally or by any number or class of persons exceeding ten shall be punished with imprisonment of either description for a term which may extend to seven years and with fine., Clause 58 of the Bill seeks to provide punishment for three years and seven years with fine stating that whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or imprisonment for life, voluntarily conceals by any act or omission, or by the use of encryption or any other information hiding tool, the existence of a design to commit such offence or makes any representation which he knows to be false respecting such design., Clause 59 of the Bill seeks to provide punishment for the public servant for concealing design of offence and thereby intending to facilitate such offence which it is his duty as such public servant to prevent., Clause 60 of the Bill seeks to provide punishment where a person, intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with imprisonment, voluntarily conceals, by any act or illegal omission, the existence of a design to commit such offence, or makes any representation which he knows to be false respecting such design., Clause 61 of the Bill seeks to provide that when two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy. It further explains that it is immaterial whether the illegal act is the ultimate object of such agreement or is merely incidental to that object. It also provides punishment for being a party to a criminal conspiracy., Clause 62 of the Bill seeks to provide punishment for attempting to commit offences which are punishable with imprisonment for life or other imprisonment for a term which may extend to one half of the imprisonment for life or, as the case may be, one half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both., Clause 63 of the Bill seeks to provide a definition of rape and the circumstances under which the offence shall be treated as rape. It further explains the terms \vagina\ and \consent\ for the purposes of this clause. It also provides in Exceptions 1 and 2 that a medical procedure or intervention shall not constitute rape and sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape., Clause 64 of the Bill seeks to provide punishment 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. It also provides punishment with rigorous imprisonment for rape when committed by persons such as police officer, public servant, member of the armed forces, staff of jail, etc., which may extend to 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. It further explains the terms \armed forces\, \hospitals\, \police officer\ and \women's or children's institution\., Clause 65 of the Bill seeks to provide that 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. It further provides that whoever commits rape on a woman under twelve 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 with fine or with death. It also provides that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and any fine imposed under sub‑clause (2) shall be paid to the victim., Clause 66 of the Bill seeks to provide punishment for rape if, in the course of the commission of rape, the offender inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, 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, or with death., Clause 67 of the Bill seeks to provide punishment of two years which may extend to seven years and also liability for fine if a person commits sexual intercourse with his own wife during separation, whether under a decree of separation or otherwise, without her consent. It further explains the term \sexual intercourse\., Clause 68 of the Bill seeks to provide punishment for rape when committed by a person who is in a position of authority or in a fiduciary relationship such as public servant, superintendent or manager of jail, staff under the management of a hospital, etc., for a term which shall not be less than five years but may extend to ten years and also with fine. It further explains the terms \sexual intercourse\, \vagina\, \superintendent\ and \hospitals, women's or children's institution\., Clause 69 of the Bill seeks to provide that whoever, by deceitful means or by making a promise to marry a woman without any intention of fulfilling the same, has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. It further explains the term \deceitful means\., Clause 70 of the Bill seeks to provide punishment for gang rape by one or more persons with rigorous imprisonment for a term which shall not be less than twenty years but which may extend to life, which shall mean imprisonment for the remainder of that person's natural life, and with fine, and also provides for punishment of imprisonment for life or with death when a gang rape is committed with a woman under eighteen years of age. It further proposes that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim and any fine imposed under this sub‑clause shall be paid to the victim., Clause 71 of the Bill seeks to provide punishment for a repeat offender, previously convicted of an offence punishable under clauses 64, 65, 66 or 67 and subsequently convicted for the same clauses, with imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death., Clause 72 of the Bill seeks to provide punishment to an offender who prints or publishes the name or any matter which may make known the identity of any person against whom an offence under clauses 64, 65, 66, 67, 68, 69, 70 or 71 is alleged or found to have been committed, with imprisonment of either description for a term which may extend to two years and shall also be liable to fine subject to certain conditions. It further provides conditions under which sub‑clause (1) shall not apply. It also explains the term \recognised welfare institution or organisation\ and states that the printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this clause., Clause 73 of the Bill seeks to provide that whoever prints or publishes any matter relating to any Court proceeding with respect to any offence referred to in clause 72 without previous permission of such Court shall be punished with imprisonment up to two years and fine., Clause 74 of the Bill seeks to provide that whoever assaults or uses criminal force on 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., Clause 75 of the Bill seeks to provide punishment for sexual harassment, such as physical contact and advances involving unwelcome and explicit sexual overtures; or a demand or request for sexual favours; or showing pornography against the will of a woman, with rigorous imprisonment for a term which may extend to three years, or with fine, or with both, and for making sexually coloured remarks, with imprisonment of either description for a term which may extend to one year, or with fine, or with both., Clause 76 of the Bill seeks to provide that whoever assaults or uses criminal force on any woman or abets such act with the intention of disrobing or compelling her to be naked shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine., Clause 77 of the Bill seeks to provide punishment for whoever watches or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed, either by the perpetrator or by any other person at the behest of the perpetrator, or disseminates such image. It further explains the term \private act\ and states that where the victim consents to the capture of the images or any act but not to their dissemination to third persons, dissemination shall be considered an offence under this clause., Clause 78 of the Bill seeks to define the offence of stalking and the punishment thereof., Clause 79 of the Bill seeks to provide punishment for intending to insult the modesty of any woman by uttering any words, making any sound or gesture, or exhibiting any object in any form, intending that such word or sound shall be heard or that such gesture or object shall be seen by such woman, or intruding upon the privacy of such woman, with simple imprisonment for a term which may extend to three years and also with fine., Clause 80 of the Bill seeks to provide that 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 shortly 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. It also provides punishment for dowry death with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and explains that \dowry\ shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961., Clause 81 of the Bill seeks to provide punishment for cohabitation or sexual intercourse by a man deceitfully inducing a woman to believe in a lawful marriage, with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine., Clause 82 of the Bill seeks to provide that whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. It further provides an exception when sub‑clause (1) shall not apply., Clause 83 of the Bill seeks to provide that whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine., Clause 84 of the Bill seeks to provide that whoever takes or entices away any woman who is, and whom he knows or has reason to believe, to be the wife of any other man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Clause 85 of the Bill seeks to provide that 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., Clause 86 of the Bill defines the term \cruelty\ for the purposes of clause 85., Clause 87 of the Bill seeks to provide punishment for kidnapping, abducting or inducing a woman to compel her marriage against her will for illicit intercourse, with imprisonment for a term which may extend to ten years, and shall also be liable to fine., Clause 88 of the Bill seeks to provide punishment for causing voluntary miscarriage if not caused in good faith for the purpose of saving the life of the woman, with imprisonment for a term which may extend to three years, or with fine, or with both; and, if the woman is quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. It further explains that a woman who causes herself to miscarry is within the meaning of this clause., Clause 89 of the Bill seeks to provide punishment for miscarriage without the consent of the woman, for a term which may extend to ten years and also for fine., Clause 90 of the Bill seeks to provide that whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine; and when done without the consent of the woman with imprisonment for life or which may extend to ten years or with fine. It further explains that it is not essential to this offence that the offender should know that the act is likely to cause death., Clause 91 of the Bill seeks to provide that whoever, before the birth of any child, does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent the child from being born alive or causes it to die after its birth, shall, if such act is not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both., Clause 92 of the Bill seeks to provide that whoever does any act under such circumstances that, if he thereby caused death, he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine., Clause 93 of the Bill seeks to provide that whoever, being the father or mother of a child under the age of twelve years, or having the care of such child, exposes or leaves such child in any place with the intention of wholly abandoning the child shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. It further explains that this clause is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child dies in consequence of the exposure., Clause 94 of the Bill seeks to provide that whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child dies before, after or during its birth, intentionally conceals or endeavours to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both., Clause 95 of the Bill seeks to provide that whoever hires, employs or engages any child to commit an offence shall be punished with imprisonment of either description which shall not be less than three years but which may extend to ten years, and with fine; and if the offence is committed shall also be punished with the punishment provided for that offence or fine provided for that offence as if the offence had been committed by such person himself. It further explains that hiring, employing, engaging or using a child for sexual exploitation or pornography is covered within the meaning of this clause., Clause 96 of the Bill seeks to provide that whoever, by any means whatsoever, induces any child to go from any place or to do any act with intent that such child may be, or knowing that it is likely that such child will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years and shall also be liable to fine., Clause 97 of the Bill seeks to provide that whoever kidnaps or abducts any child under the age of ten years with the intention of taking dishonestly any movable property from the person of such child shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine., Clause 98 of the Bill seeks to provide that whoever sells, lets to hire, or otherwise disposes of a child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such child will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. It further explains that when a female under the age of eighteen years is sold, let for hire, or otherwise disposed of to a prostitute or to any person who keeps or manages a brothel, the person so disposing of such female shall, until the contrary is proved, be presumed to have disposed of her with the intent that she shall be used for the purpose of prostitution and also explains the term \illicit intercourse\., Clause 99 of the Bill seeks to provide that whoever buys, hires or otherwise obtains possession of any child with intent that such child shall at any age be employed or used for the purpose of prostitution or illicit intercourse with any person or for any unlawful and immoral purpose, or knowing it to be likely that such child will at any age be employed or used for any such purpose, shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to fourteen years and shall also be liable to fine. It further explains that any prostitute or any person keeping or managing a brothel who buys, hires or otherwise obtains possession of a female under the age of eighteen years shall, until the contrary is proved, be presumed to have obtained possession of such female with the intent that she shall be used for the purpose of prostitution and also explains the term \illicit intercourse\., Clause 100 of the Bill seeks to provide that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. It further explains that when bodily injury shall be deemed to have caused the death and causing the death of a child in the mother's womb is not homicide, but it may amount to culpable homicide to cause the death of a living child if any part of that child has been brought forth, though the child may not have breathed or been completely born., Clause 101 of the Bill seeks to provide that culpable homicide is murder under the given circumstances. It proposes to insert Exceptions 1 to 5 to provide that when culpable homicide is not murder., Clause 102 of the Bill seeks to provide that if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause., Clause 103 of the Bill seeks to provide punishment for murder which shall be punished with death or imprisonment for life, and also fine. Sub‑clause (2) further provides that when a murder is committed by a group of five or more persons acting in concert on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be punished with death or with imprisonment for life and shall also be liable to fine., Clause 104 of the Bill seeks to provide that whoever, being under sentence of imprisonment for life, commits murder shall be punished with death or with imprisonment for life, which shall mean the remainder of that person's natural life., Clause 105 of the Bill seeks to provide the punishment for culpable homicide not amounting to murder., Clause 106 of the Bill seeks to provide that whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to five years and shall also be liable to fine. It further provides that whoever causes death of any person by rash and negligent driving of a vehicle not amounting to culpable homicide and escapes without reporting it to a police officer or a magistrate soon after the incident shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine., Clause 107 of the Bill seeks to provide that if any child, any person with unsound mind, any delirious person or any person in a state of intoxication commits suicide, whoever abets the commission of such suicide shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine., Clause 108 of the Bill seeks to provide that 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., Clause 109 of the Bill seeks to provide punishment for attempt to murder and, if by that death is caused, the offender would be guilty of murder and shall be punished with imprisonment which may extend to ten years and also with fine; and further provides that if hurt is caused by such act the punishment shall be imprisonment for life, or with fine, or with both., Clause 110 of the Bill seeks to define attempt to commit culpable homicide not amounting to murder and provides for punishment which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both., Clause 111 of the Bill seeks to define organised crime as any continuing unlawful activity including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offence, cyber‑crimes, trafficking of persons, drugs, weapons or illicit goods or services, human trafficking for prostitution or ransom, by any person or a group of persons acting in concert, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion, or any other unlawful means to obtain direct or indirect material benefit including a financial benefit. It further explains the terms \organised crime syndicate\, \continuing unlawful activity\ and \economic offence\ and provides imprisonment and fine., Clause 112 of the Bill seeks to define petty organised crime as whoever, being a member of a group or gang, either singly or jointly, commits any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers or any other similar criminal act, is said to commit petty organised crime. It further explains the term \theft\ and provides that whoever commits any petty organised crime shall be punished with imprisonment for a term which shall not be less than one year but which may extend to seven years, and shall also be liable to fine., Clause 113 of the Bill seeks to provide that whoever does any act with the intent to threaten or likely to threaten the unity, integrity, sovereignty, security, or economic security of India or with the intent to strike terror or likely to strike terror in the people or any section of the people in India or in any foreign country, commits a terrorist act. It further explains the terms \public functionary\ and \counterfeit Indian currency\ and provides punishment of imprisonment and fine. It also explains that an officer not below the rank of Superintendent of Police shall decide whether to register the case under this clause or under the Unlawful Activities (Prevention) Act, 1967., Clause 114 of the Bill seeks to provide that whoever causes bodily pain, disease or infirmity to any person is said to cause hurt., Clause 115 of the Bill seeks to define voluntarily causing hurt and the punishment thereof., Clause 116 of the Bill seeks to provide that hurt, namely, emasculation, permanent privation of the sight of either eye, permanent privation of the hearing of either ear, privation of any member or joint, destruction or permanent impairing of the powers of any member or joint, permanent disfiguration of the head or face, fracture or dislocation of a bone or tooth, and any hurt which endangers life or which causes the sufferer to be during the space of fifteen days in severe bodily pain, or unable to follow his ordinary pursuits, are grievous hurt., Clause 117 of the Bill seeks to define voluntarily causing grievous hurt and the punishment thereof. It further explains that a person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt; however, he is said voluntarily to cause grievous hurt if, intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind., Clause 118 of the Bill seeks to define voluntarily causing hurt or grievous hurt by dangerous weapons or means and the punishment thereof., Clause 119 of the Bill seeks to define voluntarily causing hurt or grievous hurt to extort property, or to compel an illegal act and the punishment thereof., Clause 120 of the Bill seeks to define voluntarily causing hurt or grievous hurt to extort confession, or to compel restoration of property and the punishment thereof., Clause 121 of the Bill seeks to define voluntarily causing hurt or grievous hurt to deter a public servant from his duty and the punishment thereof., Clause 122 of the Bill seeks to define voluntarily causing hurt or grievous hurt on provocation and the punishment thereof. It further explains that this clause is subject to the same proviso as Exception 1 of clause 101.
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Reportable Miscellaneous Application No. 2157 of 2023 Writ Petition (Civil) No. 1137 of 2023 X Petitioner Versus Union of India and Another Respondents Dr Dhananjaya Y Chandrachud, Chief Justice of India., The Registry is directed to anonymize the name of the petitioner in this judgment, all orders that have been passed as well as in the records which are publicly available., The petitioner is a married woman of twenty‑seven years. She and her husband have two children, the younger of which is about one year old. She filed the petition under Article 32 for directions to the respondents to permit a medical termination of her ongoing pregnancy. The petitioner states that she did not discover that she was pregnant until after twenty weeks of the pregnancy had elapsed because she had lactational amenorrhea. As a result of lactational amenorrhea, women who are breastfeeding do not menstruate. She therefore did not realize that the absence of menstruation was indicative of pregnancy. The petitioner states that she visited the gynaecologist for the first time after the delivery of her second child because she was feeling weak, nauseous, dizzy and experiencing abdominal discomfort. She underwent an ultrasound scan, upon which she realized that she was pregnant. The pregnancy was estimated to be around twenty‑four weeks at that time., The petitioner avers that she and her husband attempted to medically terminate the pregnancy at various hospitals but that they were unable to because of the Medical Termination of Pregnancy Act 1971 read with the Medical Termination of Pregnancy Rules 2003 (as amended in 2021). She therefore approached the Supreme Court of India by invoking its writ jurisdiction. She sought permission for the medical termination of her pregnancy on the following grounds: (a) she suffers from postpartum depression and her mental condition does not permit her to raise another child; and (b) her husband is the only earning member of their family and they already have two children to care for. Additionally, they have other family members who depend on them., The matter was listed before a two‑Judge Bench comprising Justice Hima Kohli and Justice B. V. Nagarathna on 5 October 2023. On the same day, the Bench directed the petitioner to appear before a Medical Board constituted by the All India Institute of Medical Sciences, New Delhi. The report submitted to the Supreme Court of India by the Medical Board is extracted below: Details of the woman seeking termination of pregnancy: Age: 27 years. Registration/Case Number: UHID 107060237. Additional review done at AIIMS: Ultrasound done on 20.09.2023 suggested a single live intra‑uterine fetus of 25 weeks 5 days period of gestation, estimated fetal weight 886 g, placenta in upper segment., Opinion by Medical Board for termination of pregnancy: Allowed (X) Denied ( ). Justification for the decision: The weight of the baby by the scan done on 06/10/2023 is 886 g with gestational age of 25 weeks 5 days. As per the current status, the baby is viable and has a reasonable chance of survival. The chances of postpartum psychosis of which the couple is worried are present even at this gestation following delivery. The mother is a previous two‑LSCS and the chances of complications due to hysterotomy are there at this gestation. In such a scenario, the termination of pregnancy may be reconsidered. The option of antenatal care and delivery at AIIMS, New Delhi has been discussed with the couple., By its order dated 9 October 2023, the Supreme Court of India allowed the petition and permitted the medical termination of the pregnancy on the ground that continuing with the pregnancy could seriously imperil the mental health of the petitioner. The order was pronounced in Court and the reasons were to follow later., On 10 October 2023, a doctor from AIIMS (who was a member of the Medical Board which examined the petitioner) emailed Ms Aishwarya Bhati, learned Additional Solicitor General, stating that the fetus has a strong chance of survival and seeking directions from the Supreme Court of India as to whether the fetal heartbeat ought to be stopped. The email also stated that if the fetal heartbeat was not stopped, the baby would be placed in an intensive care unit and that there was a high possibility of immediate and long‑term physical and mental disability. AIIMS sought a direction from the Court as to whether a feticide should be carried out. The email is extracted below:, The email reads: 'This is regarding the Supreme Court order dated 09.10.2023, regarding termination of pregnancy of Ms. Before proceeding for termination, we would request the following clarifications from the Honorable Supreme Court: As the baby is currently viable (will show signs of life and have a strong possibility of survival), we will need a directive from the Supreme Court on whether a feticide (stopping the fetal heart) can be done before termination. We perform this procedure for a fetus which has abnormal development, but generally not done in a normal fetus. If feticide is not performed, this is not a termination, but a preterm delivery where the baby born will be provided treatment and care. A baby who is born preterm and also of such low birth weight will have a long stay in intensive care unit, with a high possibility of immediate and long‑term physical and mental disability which will seriously jeopardise the quality of life of the child. In such a scenario, a directive needs to be given as to what is to be done with the baby. If the parents agree to keep the child this will take a major physical, mental, emotional and financial toll on the couple. If it is to go for adoption, the process needs to be spelt out clearly as to needs to clear that baby who comes into the world will have a better chance at life if the delivery happens after at least 8 weeks. It is also to be kept in mind that the consequences of delivery which have happened in the previous two babies can happen at this time also, with a delivery now at this time. We would be obliged if a directive on these is given by the Honorable Supreme Court to ease out the process.', Ms Bhati mentioned the case at 4 pm on 10 October 2023 before the Bench presided over by the Chief Justice of India. Ms Bhati informed the Court that in view of the email extracted above and the ensuing urgency, she mentioned the matter before Justice Kohli (Justice Nagarathna was presiding over another Bench) and requested that it be listed. Justice Kohli orally informed Ms Bhati that she was functus officio after passing the order dated 9 October 2023 and that the matter ought to be mentioned before the Chief Justice of India so that he may exercise his powers on the administrative side and constitute a bench to hear the matter. The ASG stated that she would move a recall application before the same bench which had heard the petition earlier, the urgency arising as a result of the fact that the Court had directed an MTP to be carried out immediately upon the petitioner reporting to AIIMS. The Chief Justice of India constituted the same two‑Judge Bench comprising Justice Kohli and Justice Nagarathna to hear the application for recall of the order dated 9 October 2023 and the case was directed to be notified on the next day in the sitting list of 11 October 2023., The two‑Judge Bench heard the counsel for the petitioners as well as the ASG. At this juncture, the petitioner filed an affidavit which stated, 'I have made a wilful and conscious decision to medically terminate my pregnancy and do not want to keep the baby even if it survives.', The judges were unable to agree when the application moved by the ASG was heard and delivered a split verdict. In her judgment, Justice Kohli held that her judicial conscience prevented her from allowing the prayer in view of the email sent to Ms Bhati. Justice Nagarathna, on the other hand, held that the order dated 9 October 2023 ought not to be overturned for the following reasons: (a) the interest of the mother, who already had two children and would deliver a third child within a year of delivering the second, must be given preference; (b) the socio‑economic conditions and the mental state of the petitioner must be considered by this Court; (c) the decision of the petitioner ought to be respected and must not be substituted by the decision of this Court; and (d) a fetus is dependent on the mother and cannot be recognized as a personality apart from that of the mother as its very existence is owed to the mother., Following the split verdict, the petition was directed to be listed before the present three‑Judge Bench, in view of the difference of opinion between the two judges on the application for recall of the order dated 9 October 2023. On 13 October 2023, the Supreme Court of India passed an order calling for a further report from AIIMS on certain specific issues. They were formulated thus: (i) Whether the fetus is suffering from any abnormality as provided by subsection 2(b) of Section 3 of the Act. Though the earlier report mentions that the fetus is normal, nonetheless, in order to place the matter beyond doubt, we request a further report to be submitted on the above aspect; (ii) Whether the continuance of the pregnancy of the petitioner to full term would be jeopardised by the drugs which may be prescribed for the alleged condition from which the petitioner is stated to be suffering; and (iii) The medical professionals at AIIMS would be at liberty to carry out their own diagnosis in regard to the alleged medical condition and to indicate their own independent evaluation of the mental and physical condition of the petitioner. Upon doing so, we request the doctors to apprise this Court if the petitioner is found to be suffering from postpartum psychosis and whether any alternate administration of medication consistent with the pregnancy would be available so as to neither jeopardise the well‑being of the petitioner nor the fetus in that regard. This exercise shall be carried out during the course of the day., The Medical Board constituted by AIIMS comprised nine doctors, including specialists in obstetrics and gynaecology, paediatrics, and psychiatry. The conclusions in the report submitted by the Medical Board to the Supreme Court of India are extracted below: (1) As assessed by USG and fetal echo, the fetus does not have any structural anomaly at the present time (report attached). The board notes that all abnormalities cannot be picked up on USG scans. (2) The continuation of pregnancy to full term while the woman is on the revised medications (as advised by the psychiatrist on the board) is not likely to significantly increase the risk of adverse outcomes for the mother and fetus as compared to other pregnant women. (3) On psychiatric assessment the board is of the opinion that she has a past history of postpartum psychosis, currently controlled on medications. Her medications have been reviewed and revised for optimal management. It is felt that with proper care and treatment under appropriate medical supervision, the mother and baby can be managed well during pregnancy and postpartum as has been previously evidenced by her response to medications; if symptoms worsen, she may be admitted and treated., Hence, the points put to the Medical Board for determination were answered in the following terms: (a) No abnormality has been detected in the fetus; (b) The continuation of the pregnancy would not be jeopardised by the medication which the petitioner is currently taking; and (c) The petitioner has a history of postpartum psychosis which is currently being controlled on medication. A revised medication regime was prescribed for optimal management of the postpartum psychosis., The issues which arise for the consideration of this Court are: (a) What is the nature of the jurisdiction under which this Court is adjudicating this case; and (b) Can the relief sought in the writ petition be granted?, The termination of pregnancies is governed by the Medical Termination of Pregnancy Act and the rules framed under it. The MTP Act is a progressive legislation which regulates the manner in which pregnancies may be terminated. Section 3 spells out certain conditions which must be satisfied before a pregnancy can be terminated. Section 3 – When pregnancies may be terminated by registered medical practitioners: (1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act. (2) Subject to the provisions of sub‑section (4), a pregnancy may be terminated by a registered medical practitioner, – (a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or (b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty‑four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are, of the opinion, formed in good faith, that – (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or (ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. Explanation 1: For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Explanation 2: For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman., The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational ages shall be as may be prescribed by rules made under this Act. The provisions of sub‑section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any substantial fetal abnormality diagnosed by a Medical Board. Every State Government or Union territory shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act. The Medical Board shall consist of the following: (a) a gynaecologist; (b) a paediatrician; (c) a radiologist or sonologist; and (d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory., Where the length of the pregnancy does not exceed twenty weeks, one registered medical practitioner must be of the opinion, formed in good faith, that: (a) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; the anguish caused by a pregnancy which occurs due to the failure of a contraceptive method is presumed to constitute a grave injury to the mental health of the woman; or (b) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality. Where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy is presumed to constitute a grave injury to the mental health of the woman. The presumption adverted to in (a) above makes it evident that the MTP Act recognizes the autonomy of the pregnant woman and respects her right to choose the course of her life., No pregnancy of a woman who has not attained the age of eighteen years, or who having attained the age of eighteen years is a mentally ill person, shall be terminated except with the consent in writing of her guardian. Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman., Where the length of the pregnancy exceeds twenty weeks but does not exceed twenty‑four weeks, two registered medical practitioners must be of the opinion discussed in the preceding paragraph. The categories of women where a pregnancy beyond 20 weeks and up to 24 weeks may be terminated are permitted to be prescribed by rules made by the delegate of the legislature. Rule 3B of the MTP Rules (as amended in 2021) provides grounds for the termination of a pregnancy up to twenty‑four weeks. The termination may be allowed in the following cases: (a) survivors of sexual assault or rape or incest; (b) minors; (c) change of marital status during the ongoing pregnancy (widowhood and divorce); (d) women with physical disabilities with a major disability as per the Rights of Persons with Disabilities Act 2016; (e) mentally ill women including mental retardation; (f) fetal malformation that has a substantial risk of being incompatible with life or where in the event of birth the child may suffer from physical or mental abnormalities and be seriously handicapped; (g) women with pregnancy in humanitarian settings or disaster or emergency situations as may be declared by the Government., In X v. Principal Secretary, Department of Health and Family Welfare, GNCTD, this Court held that the benefits of Rule 3B(c) extend equally to both single and married women and that the benefits of Rule 3B extend to all women who undergo a change in their material circumstances., If, in the opinion of a registered medical practitioner, the termination of a pregnancy is immediately necessary to save the life of a pregnant woman, the provisions of Section 3 which relate to the length of the pregnancy and the opinion of two registered medical practitioners shall not apply. Section 4 (which concerns the place at which a pregnancy may be terminated) shall not apply to such cases as well. The design of the statute makes it evident that saving the life of the pregnant woman is of paramount importance, notwithstanding the length of the pregnancy., The Medical Board has the power to allow or deny the termination of a pregnancy whose length is beyond twenty‑four weeks. It may do so only after ensuring that the procedure would be safe for the woman at that gestational age and after considering whether the fetal malformation leads to a substantial risk of the fetus being incompatible with life, or where the child (if it is born) may suffer from such physical or mental abnormalities as to be seriously handicapped., Therefore, the outer temporal limit within which a pregnancy may be terminated is lifted in some cases. The position of law can be summarized as follows: Up to twenty weeks – opinion of one registered medical practitioner; Between twenty and twenty‑four weeks – opinion of two registered medical practitioners read with Rule 3B; Beyond twenty‑four weeks – if the termination is required to save the life of the pregnant woman, the opinion of one registered medical practitioner; if there are substantial fetal abnormalities, with the approval of the Medical Board., Analysis – The jurisdiction of this Court to hear this case. Having described the factual background, the procedural history, and the framework of law, we turn to the issues raised in this case. As noticed in the first segment of this judgment, the Union of India filed an application for the recall of the order dated 9 October 2023 passed by a two‑Judge Bench of this Court on the ground that one of the doctors on the Medical Board emailed the learned ASG seeking a clarification of that order., It is settled law that once a judgment or order attains finality, a party seeking to challenge the decision may do so only by invoking the jurisdiction of the court to review the judgment or order; preferring an appeal against the judgment or order (where an appeal lies); or, in the case of the Supreme Court, filing a curative petition. The reason for the limited number of routes is that there must be quietus to a dispute. Unlimited modes would result in chaos, uncertainty, and unpredictability. For this reason, an application for recall of an order or judgment cannot be entertained by this Court except in exceptional circumstances such as where a party directly affected was not served with notice of the proceedings. Otherwise, the hearing and disposal of an application for recall may create an intra‑court appeal, which is impermissible., In the present case, the Union of India filed an application for recall because certain aspects of the situation were brought to its attention after the petition was disposed of by the order dated 9 October 2023. There was no intention to abuse the process of law. However, the appropriate procedure would have been to file a Review Petition, accompanied by an application for urgent listing and an application for hearing in open court, given the urgency of the matter. The Bench consisting of Justices Kohli and Nagarathna agreed to hear the matter. The immense urgency at that time did not permit this Court to address the reasons for doing so. The reasons are addressed presently., Under Article 142 of the Constitution, the Supreme Court of India has the power to pass such decree or make such order as is necessary for doing complete justice in any cause. This article gives a very wide power to do complete justice to the parties before the Court, a power which exists because the judgment delivered by it will finally end the litigation between the parties. It follows upon Article 141, which states that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Thus, every judgment delivered by the Supreme Court has two components: the law declared which binds courts in future litigation, and the doing of complete justice in any cause or matter pending before it. It is an article that turns the maxim that equity follows the law on its head, giving precedence to equity, though not to the extent of disregarding mandatory substantive provisions of law., In the present case, this Court is justified in exercising its jurisdiction under Article 142 in view of the following circumstances: (a) this is not an ordinary civil case but concerns the viability of a medical termination of a pregnancy and the course of action to be adopted by the doctors on the basis of the development of the fetus; (b) certain aspects of the case which ought to have been brought to the attention of this Court came to light after the order dated 9 October 2023 had been passed, through the actions of a third party (the Medical Board); (c) there was immense urgency in this matter., Decision on the prayer. The length of the pregnancy has crossed twenty‑four weeks. It is now approximately twenty‑six weeks and five days. A medical termination of the pregnancy cannot be permitted for the following reasons: (a) having crossed the statutory limit of twenty‑four weeks, the requirements in either Section 3(2B) or Section 5 must be met; (b) ...
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There are no substantial foetal abnormalities diagnosed by a Medical Board in this case, in terms of Section 3(2B). The Supreme Court of India called for a second medical report from All India Institute of Medical Sciences to ensure that the facts of the case were accurately placed before it and no foetal abnormality was detected; and neither of the two reports submitted by the Medical Boards indicates that a termination is immediately necessary to save the life of the petitioner, in terms of Section 5., Under Article 142 of the Constitution, the Supreme Court of India has the power to do complete justice. However, this power may not be attracted in every case. If a medical termination were to be conducted at this stage, the doctors would be faced with a viable foetus. One of the options before the Supreme Court of India, which the email from All India Institute of Medical Sciences has flagged, is for it to direct the doctors to stop the heartbeat. The Supreme Court of India is averse to issuing a direction of this nature for the reasons recorded in the preceding paragraph. The petitioner also did not wish for the Supreme Court of India to issue such a direction. This was communicated by her to the Supreme Court of India during the course of the hearing., In the absence of a direction to stop the heartbeat, the viable foetus would be faced with a significant risk of lifelong physical and mental disabilities. The reports submitted by the Medical Board speak for themselves. For these reasons, we do not accede to the prayer for the medical termination of the pregnancy., The delivery will be conducted by All India Institute of Medical Sciences at the appropriate time. The Union Government has undertaken to pay all the medical costs for the delivery and incidental to it., Should the petitioner be inclined to give the child up for adoption, the Union Government has stated through the submission of the Additional Solicitor General that they shall ensure that this process takes place at the earliest, and in a smooth fashion. Needless to say, the decision of whether to give the child up for adoption is entirely that of the parents., The application for recall of the order dated 9 October 2023 is allowed. The petition and the application are disposed of in terms of the directions above.
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id_1132
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F.No. K.13022/01/2024-U. Government of India Ministry of Law and Justice Department of Justice (Appointments Division) Jaisalmer House, 26, Man Singh Road, New Delhi-110011. Dated 30th January 2024. In exercise of the power conferred by clause (1) of Article 217 of the Constitution of India, the President is pleased to appoint Shri Justice Pradeep Kumar Srivastava, Additional Judge of the High Court of Jharkhand, to be a Judge of that High Court with effect from the date he assumes charge of his office., Narayi Prasad, Deputy Secretary to the Government of India, Telephone 2307 2149., To the Manager, Government of India Press, Minto Road, New Delhi., Copy to: Shri Justice Pradeep Kumar Srivastava, Additional Judge, Jharkhand High Court through the Registrar General, Jharkhand High Court, Ranchi; the Secretary to the Governor, Jharkhand, Ranchi; the Secretary to the Chief Minister, Jharkhand, Ranchi; the Secretary to the Chief Justice, Jharkhand High Court, Ranchi; the Chief Secretary, Government of Jharkhand, Ranchi; the Registrar General, Jharkhand High Court, Ranchi; the Accountant General, Jharkhand, Ranchi; the President's Secretariat, CA II Section, Rashtrapati Bhawan, New Delhi; the Principal Secretary to the Prime Minister, Prime Minister's Office, South Block, New Delhi; the Registrar (Confidential), Office of the Chief Justice of India, 07 Krishna Menon Marg, New Delhi; the Senior Technical Director, National Informatics Centre, Department of Justice, with a request to upload on the website of the Department (Anant Kumar).
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Applicant: Anil Kumar. Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Abhishek Singh, Advocate Z Khan, Akshaivar Singh. Counsel for Opposite Party: G. A. Honourable Subhash Vidyarthi, J., Heard Sri Advocate Z Khan, the learned counsel for the applicant, Sri Arun Kumar Pandey, the learned Additional Government Advocate, and perused the record., The instant application has been filed seeking release of the applicant on bail in Crime No. 85 of 2022, under Sections 379 and 411 of the Indian Penal Code, Section 66 of the Information Technology Act, Police Station Sadar Bazar, District Saharanpur, during pendency of the trial in the trial court., The aforesaid case was registered on the basis of a First Information Report lodged on 15 February 2022 by one Pradeep Kumar Sharma, Advocate, Chamber No. 236, Civil Court, Saharanpur, complaining that on 1 February 2022, someone had withdrawn Rupees 500 and Rupees 15,000 from the current account of the informant's firm M/s Ayurherbs Remedies India., On 9 May 2022, the police arrested five accused persons, including the applicant, on the basis of information received from an informant and Automated Teller Machine cards, and Rupees 16,000 were said to have been recovered., In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent, has been falsely implicated in the present case, and has no previous criminal history. After the arrest of the applicant, he has been implicated in as many as six cases, the particulars of which are mentioned in paragraph No. 6 of the affidavit., The learned counsel for the applicant submitted that co-accused Sumit Mitta, who was arrested along with the applicant, has already been granted bail by an order dated 12 October 2022 passed by the Honorable High Court of Uttar Pradesh in Criminal Miscellaneous Bail Application No. 35728 of 2022. Another co-accused Monu Kumar has also been granted bail by an order dated 18 October 2022 passed by the Honorable High Court of Uttar Pradesh in Criminal Miscellaneous Bail Application No. 34315 of 2022., The applicant has been languishing in jail since 10 May 2022., The learned Additional Government Advocate opposed the prayer for grant of bail., Having regard to the aforesaid facts and submissions and keeping in view the fact that the alleged fraudulent withdrawal was made on 2 February 2022 whereas the First Information Report was lodged on 15 February 2022 and there is no explanation for the delay; the First Information Report was lodged against an unknown person; the applicant has been implicated in the present case on the basis of his alleged confessional statement recorded by the police after his arrest in another case; and two of the co-accused persons have already been granted bail in the present case, I am of the view that the applicant is entitled to be released on bail., In light of the preceding discussion and without making any observation on the merits of the case, the instant bail application is allowed., Let the applicant Anil Kumar be released on bail in Crime No. 85 of 2022, under Sections 379 and 411 of the Indian Penal Code, Section 66 of the Information Technology Act, Police Station Sadar Bazar, District Saharanpur, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the trial court, subject to the following conditions: The applicant will not tamper with the evidence during the trial. The applicant will not influence any witness. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court, to any police officer, or tamper with the evidence., In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application before the Honorable High Court of Uttar Pradesh seeking cancellation of the bail., However, before parting with the case, the Honorable High Court of Uttar Pradesh is constrained to note that the informant has described himself as an Advocate whereas he has mentioned in the First Information Report that he is proprietor of M/s Ayurherbs Remedies India; it appears from the First Information Report itself that the informant Advocate is also running a business., The Bar Council of Uttar Pradesh is directed to make an inquiry into the matter and take suitable action in accordance with law. A copy of this order shall be sent to the Secretary, Bar Council of Uttar Pradesh for taking suitable action.
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Applicant: Arvind Kejriwal. Opposite Party: State of Uttar Pradesh through Principal Secretary / Additional Chief Secretary, Home. Counsel for Applicant: Mahmood Alam, Anjani Kumar Mishra, Manmohan Singh, Nadeem Murtaza, Sheeran Mohiuddin Alavi. Counsel for Opposite Party: G.A. Honourable Rajesh Singh Chauhan, J., Heard H. G. S. Parihar, learned Senior Advocate, assisted by Nadeem Murtaza, Mahmood Alam, Man Mohan Singh, learned counsel for the petitioner, and Alok Saran along with Rajesh Kumar Singh, learned Additional Government Advocates for the State., By means of this application, the applicant has made the following main prayers: Wherefore, it is most respectfully prayed that this Honourable Court may graciously be pleased to: (i) Quash and set aside the impugned revisional order dated 21 October 2022 passed by the Learned Court of Sessions Judge, Sultanpur in Criminal Revision No. 219 of 2022 (Arvind Kejriwal vs State of Uttar Pradesh) arising out of Case Crime No. 608/2014 registered at Police Station Musafirkhana, District Amethi, whereby the criminal revision preferred by the applicant has been dismissed; (ii) Quash and set aside the impugned order dated 04 August 2022 passed by the Learned Court of Additional Chief Judicial Magistrate, Room No. 18 (Special Judge Member of Parliament/Member of Legislative Assembly), Sultanpur in Criminal Case No. 360/2014 (State vs Arvind Kejriwal) arising out of Case Crime No. 608/2014 registered at Police Station Musafirkhana, District Amethi, whereby the application of the applicant seeking discharge under Section 239 of the Criminal Procedure Code has been dismissed., The applicant has assailed the judgment and order dated 21 October 2022 passed by the learned Sessions Judge, Sultanpur in criminal revision, rejecting the revision filed by the present applicant and upholding the order dated 04 August 2022 passed by the learned trial court, i.e., Additional Chief Judicial Magistrate, Court No. 18 / Special Judge, Member of Parliament/Member of Legislative Assembly, Sultanpur, which rejected the discharge application of the present applicant., Notably, this is the third petition or application filed under Section 482 of the Criminal Procedure Code before this Court., Before adverting to earlier orders passed in the petitions or applications filed by the present applicant under Section 482 of the Criminal Procedure Code before this Court, it is apt to discuss the brief facts of the present case. Prem Chandra, Flying Squad Magistrate, lodged an FIR bearing Case Crime No. 608 of 2014 under Section 125 of the Representation of the People Act, 1951 (hereinafter referred to as the Act), Police Station Kotwali Musafirkhana, District Amethi, alleging inter alia that the accused‑applicant flouted the Model Code of Conduct by making the public statement “Jo Congress ko vote dega, mera manana hoga, desh ke saath gaddari hogi. Bhajpa per katakch karte hue kaha ki jo Bhajpa ko vote dega use Khuda bhi muaf nahin karega, desh ke saath gaddari hogi.” After completion of investigation, the investigating officer submitted the charge sheet against him. The learned trial court took cognizance of the accused on 06 September 2014 under Section 125 of the Act and summoned him., The present applicant filed a petition under Section 482 of the Criminal Procedure Code bearing U/S 482/378/407 No. 3662 of 2015; Arvind Kejriwal vs State of Uttar Pradesh and Others, seeking prayer for quashing the entire proceedings of Case No. 360 of 2014 arising out of Case Crime No. 608 of 2014. He also prayed for quashing the charge sheet filed in the aforesaid case. The petition was disposed of finally by order dated 03 August 2015, giving liberty to the applicant to file an appropriate application before the learned court below, taking all pleas and grounds including the ground for exemption of his personal appearance, and directing that such application be considered strictly in accordance with law. For a period of four weeks, the bailable warrant issued against the applicant was stayed., The order dated 03 August 2015 is reproduced as follows: Heard Mahmood Alam, learned counsel appearing on behalf of the applicant, along with C. L. Gupta, Advocate, and Rishad Murtaza, learned Government Advocate on behalf of the State. By means of the instant petition under Section 482 of the Criminal Procedure Code, the applicant prayed for quashing of the entire criminal proceedings of Case No. 360 of 2014 arising out of Case Crime No. 608 of 2014, under Section 125 of the Representation of the People Act, 1951, relating to Police Station Musafirkhana, District Amethi, which is pending in the Court of Judicial Magistrate, Musafirkhana, District Amethi. The applicant further prayed for quashing of the charge sheet filed in the aforesaid Case Crime No. 608. The learned counsel for the applicant submitted that the applicant had sought exemption from personal appearance by moving an application before the Court concerned on 20 July 2015, but it was dismissed. He further submitted that Section 317 of the Criminal Procedure Code empowers the Court to pass an appropriate order for exemption. The counsel also stated that the applicant intends to file an application for discharge, but in the meantime the bailable warrant issued against the applicant may be kept in abeyance. The learned Government Advocate submitted that although one application for exemption from personal appearance had been rejected on technical grounds, the applicant may move a fresh application on proper grounds, and there is no objection. If the Court below considers the application for exemption from personal appearance proper, a fresh order may be passed in accordance with law. Regarding the application for discharge, it has not yet been moved, so no direction for expeditious disposal can be passed at this stage. In view of the above, the present application is disposed of with the observation that the grounds taken by the applicant in the instant application under Section 482 of the Criminal Procedure Code may be taken at the appropriate stage before the Court below, which will be open to the learned Court below to pass an appropriate order. It is further observed that if the applicant applies for exemption from personal appearance, the same shall also be considered by the Court below in accordance with law. The bailable warrant issued against the applicant shall remain in abeyance for a period of four weeks from the date of the order. The petition stands finally disposed of. A copy of this order may be provided to the learned counsel for the applicant within twenty‑four hours on payment of the usual charges., Perusal of the order dated 03 August 2015 reveals that the learned counsel for the applicant argued that the applicant had sought exemption from personal appearance by moving an application before the Court concerned on 20 July 2015, but it was dismissed. The counsel further argued that the applicant intends to file an application for discharge, and therefore the bailable warrant issued against the applicant may be kept in abeyance., After rejection of the applicant’s application by the learned trial court on 20 July 2015, wherein he had sought exemption from personal appearance, another application was filed by the applicant in compliance with the order dated 03 August 2015 passed by this Court, and the learned court below rejected such application by order dated 12 August 2015. Consequently, the applicant filed a second petition under Section 482 of the Criminal Procedure Code bearing U/S 482/378/407 No. 4136 of 2015; Arvind Kejriwal vs State of Uttar Pradesh and Others, with the same prayer made in the first petition and an additional prayer that the order dated 12 August 2015, whereby the exemption application of the applicant had been rejected, be quashed., In the second petition, considering the prayers of the applicant and noting that the applicant had not appeared before the learned court below, had not filed any personal bond with or without sureties, and had filed two applications for exemption under Section 205 of the Criminal Procedure Code, which were rejected by orders dated 20 July 2015 and 12 August 2015, the question was framed for adjudication: whether, after taking cognizance and issuance of process, whether summons or warrant, the exemption application under Section 205 or Section 317 of the Criminal Procedure Code is maintainable without personal appearance and without furnishing bail bonds. The petition was disposed of finally by order dated 27 August 2015, which reads as follows:, Heard learned counsel for the petitioner, Rishad Murtaza, learned Government Advocate, and perused the record. The petition was filed with the following prayers: (i) to quash the order dated 12 August 2015 in Criminal Case No. 360 of 2014, State of Uttar Pradesh vs Arvind Kejriwal, in pursuance of Charge Sheet No. 122 of 2014 dated 09 July 2014 in Case Crime No. 608 of 2014, under Section 125 of the Representation of the People Act, 1951, Police Station Kotwali Musafirkhana, District Amethi, pending before the learned Judicial Magistrate, Musafirkhana, District Amethi; (ii) to stay the entire criminal proceedings in Criminal Case No. 360 of 2014, State of Uttar Pradesh vs Arvind Kejriwal, in pursuance of Charge Sheet No. 122 of 2014 dated 09 July 2014 in Case Crime No. 608 of 2014, under Section 125 of the Representation of the People Act, 1951, Police Station Kotwali Musafirkhana, District Amethi, pending before the learned Judicial Magistrate, Musafirkhana, District Amethi, during the pendency of the present case; (iii) to order the concerned Honourable Court to decide the pending application of the applicant filed under the proviso of Section 239 of the Criminal Procedure Code in Criminal Case No. 360 of 2014, State of Uttar Pradesh vs Arvind Kejriwal, bearing Case Crime No. 608 of 2014, under Section 125 of the Representation of the People Act, 1951, Police Station Kotwali Musafirkhana, District Amethi, pending before the learned Judicial Magistrate, Musafirkhana, District Amethi., The learned counsel for the petitioner submitted that the petitioner is the Chief Minister of Delhi against whom a case under Section 125 of the Representation of the People Act has been registered. The application for discharge under Section 239 of the Criminal Procedure Code has been moved but not yet decided, and the application for personal exemption filed under Section 205 of the Criminal Procedure Code has been wrongly rejected. The petitioner is ready to file undertakings before the Court that whenever his personal appearance is required, he shall appear personally. The counsel relied upon the provisions of Section 88 of the Criminal Procedure Code, which reads: “88. Power to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial.”, The main question for consideration is whether, after taking cognizance and issuance of process, whether summons or warrant, the exemption application under Section 205 or Section 317 of the Criminal Procedure Code is maintainable without personal appearance and without furnishing bail bonds. In the present case, it is admitted that the petitioner has not appeared before the court below and has not filed any personal bond with or without sureties. The application for exemption under Section 205 of the Criminal Procedure Code was moved and rejected by order dated 12 August 2015; a similar application was rejected on 20 July 2015. The learned counsel for the petitioner relied upon the judgment of this Court in Santosh Chauhan and others vs State of Uttar Pradesh and another, reported in (2011) (4) All India Law Journal 121, wherein this Court considered the scope of Section 205 of the Criminal Procedure Code but held that exemption under Section 205 cannot be granted without submitting a personal bond or sureties. The counsel further relied upon the case Roitong Singpho vs Sajjan Kumar Agarwal reported in AIR 2009 (North Eastern) 129 (Gauhati), in which the Honourable Gauhati High Court held that the Court must take into account the magnitude of suffering that a particular accused may have to bear in order to appear before the Court, and that discretion must be exercised judiciously. The Gauhati High Court as well as the Allahabad High Court have relied upon the case M/s Bhasker Industries Ltd. vs M/s Bhiwani Denim and Apparels Ltd and others reported in AIR 2001 (Supreme Court) 3625. In that case, the Honourable Apex Court considered the scope of Sections 205(2), 251 and 317 of the Criminal Procedure Code and held in paragraphs 12 to 19 as follows:, 12. We cannot part with this matter without addressing the plea made by the second accused before the trial court for exemption from personal appearance. He highlighted two factors while seeking such exemption. First, the offence under Section 138 of the Negotiable Instruments Act is relatively not a serious offence as it is a summons case. Second, insisting on the physical presence of the accused would cause substantial hardships and suffering to him as he is a resident of Haryana. Undertaking a long journey to Bhopal would involve great hardships and expenses. He submitted that the advantages to the court from the presence of the accused are far less than the tribulations the accused would suffer, and therefore the court should consider whether such advantages can be achieved by other measures. Hence, he relied on Section 317 of the Code, which reads: “317. 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 interests 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 for trial separately.”, 13. Sub‑section (1) envisages two exigencies when the court can proceed with the trial after dispensing with the personal attendance of an accused. We are not concerned with the exigency of persistent disturbance of proceedings. The other exigency is that the court is satisfied that, in the interest of justice, the personal attendance of the accused need not be insisted upon. In this context, a reference to Section 273 of the Code is useful. It says that “except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused or, when his personal attendance is dispensed with, in the presence of his pleader.” If a court feels that insisting on the personal attendance of an accused in a particular case would be too harsh for a variety of reasons, it may afford relief to such an accused in the matter of facing the prosecution proceedings., 14. The normal rule is that evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken provided his counsel is present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court should register progress. Presence of the accused is not merely for marking attendance but to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused, the court can consider the magnitude of the sufferings which a particular accused may have to bear in order to make himself present., 15. These are days when prosecutions for the offence under Section 138 of the Negotiable Instruments Act are increasing in criminal courts. Due to the increase of inter‑State transactions through banks, it is not uncommon that when prosecutions are instituted in one State the accused might belong to a different, sometimes distant, State. Not very rarely such accused would be women also. For prosecution under Section 138 of the Negotiable Instruments Act the trial should be that of a summons case. When a magistrate feels that insisting on personal attendance of the accused in a summons case would inflict enormous hardship and cost, it is open to the magistrate to consider how to relieve such an accused of the great hardships without causing prejudice to the prosecution., 16. Section 251 is the commencing provision in Chapter XX of the Code which deals with trial of summons cases by magistrates. It enjoins the court to ask the accused whether he pleads guilty when the accused appears or is brought before the magistrate. The appearance envisaged can be by personal attendance or through his advocate. This is understood from Section 205(1) of the Code which says that “whenever 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.”, 17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on his behalf in a case where personal appearance is dispensed with. Section 317 of the Code empowers the court to dispense with the personal attendance of the accused (provided he is represented by counsel) even for proceeding with further steps in the case. However, a precaution is that such benefit should be granted only to an accused who gives an undertaking to the satisfaction of the court that he will not dispute his identity, that counsel will be present, and that he has no objection to taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of witnesses., 19. The position, therefore, is that it is within the powers of a magistrate and his judicial discretion to dispense with the personal appearance of an accused, either throughout or at any particular stage of proceedings in a summons case, if the magistrate finds that insisting on personal presence would inflict enormous suffering and that the comparative advantage would be less. Such discretion should be exercised only in rare instances where, because of the distance at which the accused resides, his business, or any physical or other good reasons, dispensing with personal attendance would be in the interests of justice. The magistrate granting such benefit must take the precautions enumerated above as a matter of course. When an accused makes an application through his duly authorised counsel praying for exemption from personal appearance, the magistrate can consider all aspects and pass appropriate orders before proceeding further., I have gone through the judgment and considered the law laid down by the Honourable Apex Court in the aforesaid case. That case relates to proceedings under Section 138 of the Negotiable Instruments Act, which is a summons case, whereas in the present case the charge‑sheet has been filed against the petitioner for an offence punishable under Section 125 of the Representation of the People Act, 1951, which carries a term of imprisonment of up to three years, or fine, or both. Accordingly, under Section 2(x) of the Criminal Procedure Code, it is a warrant case because the term of imprisonment exceeds two years. The provisions of the Code of Criminal Procedure apply to the offence under the Representation of the People Act. Section 88 of the Criminal Procedure Code, as quoted above, can be availed only when the person for whose appearance or arrest the summons or warrant has been issued is present in the Court. Section 88 does not permit exemption of the accused without executing a bond with or without sureties for his appearance. Section 90 of the Criminal Procedure Code likewise applies only to summons and warrants of arrest issued under the Code. The petitioner has not yet appeared personally before the Court and therefore cannot obtain the benefit of Section 88. Article 14 of the Constitution of India provides equality before the law and equal protection of laws. Since the Constitution does not distinguish between powerful and powerless persons, the courts cannot grant any special concession to a powerful person such as the Chief Minister of the National Capital Territory of Delhi. Law is equal for all and equal protection must be granted to all. There is no provision in the Code of Criminal Procedure that allows a warrant case trial to proceed in the absence of the accused or without his personal appearance and bail bonds. It is not disputed that on subsequent dates of hearing the personal appearance of the accused may be exempted if sufficient cause is shown, provided the accused is represented by a pleader. However, the Code of Criminal Procedure also empowers the trial court to direct personal attendance of the accused. In the present case, the First Information Report was lodged against the petitioner for an offence punishable under Section 125 of the Representation of the People Act, and after investigation the charge‑sheet was filed., Section 125 of the Representation of the People Act, 1951 provides: “125. Promoting enmity between classes in connection with election. Any person who, in connection with an election under this Act, promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.”, The present case relates to the alleged speech of the petitioner on 02 May 2014 in connection with an election, which allegedly attempts to promote feelings of enmity or hatred between different classes of the citizens of India. Politicians are required to observe greater caution in their speeches, as they must promote the spirit of common brotherhood, fraternity and harmony among all people of India, transcending religious, linguistic, regional or sectional diversities. As citizens, politicians must also abide by the fundamental duties enshrined in Article 51A of the Constitution of India, in addition to the restrictions and guidelines imposed by the Representation of the People Act, 1951, because they are not above the Constitution. Unfortunately, some politicians today have no control over fire‑brand speeches aimed at attracting or misleading voters. Such tendencies should be discontinued, as the public of India has become more aware of the truth. Politicians must use parliamentary language. These observations do not affect the merits of the present case., The procedure for trial of a warrant case by the Magistrate is contained in Chapter XIX of the Code. Section 238 of the Criminal Procedure Code specifically provides that when, in any warrant case instituted on a police report, the accused appears or is brought before the Magistrate at the commencement of trial, the provisions of Section 207 of the Criminal Procedure Code shall be complied with. This provision envisages that either the accused should appear or be brought before the Magistrate. It does not allow that, at the commencement of a warrant trial, the accused may appear through counsel. Because it is a warrant trial, the accused must appear in Court and cannot claim exemption under Section 205 of the Criminal Procedure Code until he has furnished bonds with or without sureties as directed by the trial court. Accordingly, the question whether, after taking cognizance and issuance of process, whether summons or warrant, the exemption application under Section 205 or Section 317 of the Criminal Procedure Code is maintainable without personal appearance and without furnishing bail bonds is decided: in a warrant trial, the provisions of Section 205 or Section 317 of the Criminal Procedure Code will not apply unless the accused has been granted bail and has furnished bail bonds., This petition has been filed under Section 482 of the Criminal Procedure Code. The scope of Section 482 has been considered by the Honourable Apex Court in various judgments. The power under Section 482 is not to be exercised in a routine manner; it is for limited purposes, namely, to give effect to any order under the Code, to prevent abuse of process of any Court, or to secure the ends of justice. Time and again, the Apex Court and various High Courts, including this Court, have reminded that exercise of power under Section 482 is justified only in specific circumstances and should not pre‑empt a trial or be used routinely to cut short the entire process before the Courts below. If, on a bare perusal of the First Information Report or complaint, it is evident that it does not disclose any offence, or is frivolous, collusive or oppressive, the Court may exercise its inherent power under Section 482, but it should be exercised sparingly. This does not include considerations of whether the prosecution is likely to establish its case, whether the evidence is reliable, or whether, on reasonable appreciation, the accusation would not be sustained. It is sufficient to refer to recent authorities: State of Haryana and others vs Ch. Bhajan Lal and others (1992 Supp (1) SCC 335), Popular Muthiah vs State represented by Inspector of Police (2006) 7 SCC 296, Hamida vs Rashid @ Rasheed and Others (2008) 1 SCC 474, Dr. Monica Kumar and Anr. vs State of Uttar Pradesh and Others (2008) 8 SCC 781, M. N. Ojha and Others vs Alok Kumar Srivastav and Anr. (2009) 9 SCC 682, State of Andhra Pradesh vs Gourishetty Mahesh and Others (JT 2010 (6) SC 588), Iridium India Telecom Ltd. vs Motorola Incorporated and Others (2011 (1) In Lee Kun Hee and Others vs State of Uttar Pradesh and Others JT 2012 (2) SC 237). These judgments reiterate that the Court, in exercising jurisdiction under Section 482, cannot go into the truth of the allegations or assess evidence; interference is justified only when a clear case for such interference is made out. Frequent and unwarranted interference at the preliminary stage by a High Court may obstruct the progress of inquiry in a criminal case, which may not be in public interest. However, where the First Information Report or complaint is so absurd and inherently improbable that no fair‑minded observer can find sufficient grounds for proceeding, refusal to exercise jurisdiction may result in injustice, especially where the complainant seeks to exert pressure and harass the accused. In the present matter, after investigation the police have found a prima facie case against the accused and have submitted a charge‑sheet in the Court below. The police have found a prima facie case of commission of a cognizable offence by the accused, which should be tried in a Court of Law. At this stage there there is no occasion to consider whether the charge can ultimately be substantiated, as that is a matter for trial.
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No substantial ground has been made out which may justify interference by the Uttarakhand High Court under Section 482 Code of Criminal Procedure. In view of the above, I do not find any error of law or perversity in the order dated 12.08.2015, by which the application for exemption has been rejected. As far as the prayer to stay the entire criminal proceedings is concerned, I also do not find any sufficient ground to stay the aforesaid criminal proceedings because, in view of the provisions of Chapter XIX of the Code of Criminal Procedure, the accused has a right to move the application for discharge under Section 239 Code of Criminal Procedure and if that application is rejected then certainly the Magistrate is empowered to frame the charge as provided under Section 240 Code of Criminal Procedure. Therefore, the prayer no. (ii) is also misconceived. As far as prayer (iii) is concerned, there is already a specific provision of Section 239 Code of Criminal Procedure to decide the application for discharge and for that the orders of this Court are not required. But certainly, before deciding the application under Section 239 Code of Criminal Procedure, the appearance of the accused in the Court for filing the bond with or without sureties is necessary. Therefore, this prayer is also misconceived. In the last, learned counsel for the petitioner has prayed that the accused is ready to appear personally in the Court and file the bail bonds, therefore, some protection may be granted to him. Considering the request of learned counsel for the petitioner, it is provided that if the petitioner, Arvind Kejriwal, surrenders before the court below within four weeks from today and moves an application for bail, the same shall be considered and disposed of expeditiously in accordance with law and in terms of law laid down in the case of Smt. Amrawati and another vs. State of Uttar Pradesh, 2005; Criminal Law Journal 755, which has been affirmed by the Honorable Supreme Court of India in Lal Kamlendra Pratap Singh vs. State of Uttar Pradesh and Others reported in (2009) 4 SCC 437. Till then, no coercive action shall be taken against the petitioner. The petition stands disposed of accordingly., While disposing of the aforesaid petition, the Uttarakhand High Court has observed that after investigation police has found a prima facie case against the accused and submitted a charge sheet in the court below. After investigation, the police has found a prima facie case for commission of a cognizable offence by the accused, which should have been tried in a court of law. The Court further observed that at this stage, there is no occasion to look into the question whether the charge ultimately can be sustained or not since that would be subject matter of the trial court. In view of the above, the Uttarakhand High Court has held that no substantial ground has been made out which may justify interference by this Court under Section 482 Code of Criminal Procedure and there is no error of law or perversity in the order dated 12.08.2015 by which the application for exemption has been rejected. Accordingly, prayer no.1 of that petition has been rejected., So as to decide the second prayer of that petition, this Court has held that since the accused has the right to move an application for discharge under Section 239 Code of Criminal Procedure and if that application is rejected, then certainly the Magistrate is empowered to frame the charge as provided under Section 340 Code of Criminal Procedure, so the prayer no. (ii) is misconceived., Deciding prayer no. (iii) of the said petition, this Court has held that there is already a specific provision of Section 239 Code of Criminal Procedure to decide the application for discharge and for that the orders of this Court are not required but certainly, before deciding the application under Section 239 Code of Criminal Procedure, appearance of the accused in the court for filing bond with or without sureties is necessary; therefore, that prayer is also misconceived., Thereafter, learned counsel for the petitioner has given an undertaking that the present applicant is ready to appear personally in the court and file the bail bonds, therefore, some protection may be given to him. Considering that request, this Court granted four weeks' time to the present applicant to surrender before the learned court below and file an application for bail and the same was directed to be considered and disposed of strictly in accordance with law in terms of the law laid down in the case of Smt. Amrawati and another vs. State of Uttar Pradesh, 2005; Criminal Law Journal 755, which has been affirmed by the Honorable Supreme Court of India in Lal Kamlendra Pratap Singh vs. State of Uttar Pradesh and Others, (2009) 4 SCC 437., The aforesaid order dated 27.08.2015 has been assailed before the Supreme Court of India by filing Petition for Special Leave to Appeal (Criminal) No. 7989 of 2015; Arvind Kejriwal Vs. State of Uttar Pradesh & Others, and the Supreme Court of India passed the order dated 22.09.2015, which reads as under: Taken on board. Issue notice. The attendance of the petitioner before the trial court is dispensed with until further orders., By means of the aforesaid order, the Supreme Court of India issued notices and directed that attendance of the petitioner before the trial court is dispensed with until further orders. The petitioner has challenged the order dated 04.08.2022 whereby the discharge application of the present applicant was rejected by the learned trial court before the revisional court and the revisional court dismissed the revision vide order dated 21.10.2022 upholding the order dated 04.08.2022 passed by the learned trial court. Both the aforesaid orders have been assailed in this application on the ground that the applicant has not made any appeal for vote on the ground of religion etc. and he has not promoted enmity between the classes of the people; therefore, he may not be held liable for the offence under Section 125 of the Representation of the People Act, 1951. In support of his aforesaid argument, learned counsel for the applicant has placed reliance upon the judgment of the Supreme Court of India in re; Ramakant Mayekar v. Celine D'Silva (Smt.), (1996) 1 SCC 399, citing paragraph 27, which reads as under: 27. What is forbidden by law is an appeal by a candidate for votes on the ground of his religion or promotion etc. of hatred or enmity between groups of people, and not the mere mention of religion. There can be no doubt that mention made of any religion in the context of secularism or for criticising the anti‑secular stance of any political party or candidate cannot amount to a corrupt practice under sub‑section (3) or (3‑A) of Section 123. In other words, it is a question of fact in each case and not a proposition of law as understood and enunciated by the High Court., However, learned counsel for the applicant has informed the Court that the present applicant, being a law‑abiding citizen, appeared before the learned court of Magistrate on 25.10.2021 and has been granted bail. Recital to this effect has been given in item no.13 of the dates and events., In paragraph 9 of the discharge application of the present applicant (Annexure No.8), it has been stated that whatever statement was made by the applicant during his speech was merely based upon his personal opinion and such statement is protected under Article 19 of the Constitution of India i.e. Freedom of Speech and Expression. In paragraph 8 of the discharge application, he has stated that his statement may not be considered as an offence under Section 125 of the Representation of the People Act, 1951., As per learned counsel for the applicant, the learned trial court as well as the learned revisional court below has committed a manifest error of law and fact while rejecting the discharge application and the revision of the present applicant. Therefore, the aforesaid orders may be set aside and quashed., Per contra, Sri Alok Saran, learned Additional Government Advocate, has opposed this application filed under Section 482 Code of Criminal Procedure by submitting that this is the third petition/application under Section 482 Code of Criminal Procedure in the same matter. He has also stated that as per the observation of this Court in the second petition filed under Section 482 Code of Criminal Procedure, the police has found a prima facie case against the accused and submitted a charge sheet in the court below after completion of the investigation and the trial court has taken cognizance of the offence; therefore, that charge could be proved or disproved before the learned trial court and at this stage, no interference would be required invoking the inherent powers of the High Court under Section 482 Code of Criminal Procedure. Consequently, the trial of the present case should be conducted and concluded strictly in accordance with law., Sri Saran has further submitted that the Supreme Court of India has not stayed the trial pending against the present applicant; only his presence before the learned trial court has been dispensed with, therefore, the trial of the present case may not be stalled or stayed, rather directions may be issued to conduct and conclude the trial with expedition, strictly in accordance with law. He has further submitted that the statement so given by the applicant is apparently violative of Section 125 of the Representation of the People Act, 1951 inasmuch as his sentence that whosoever would cast a vote in favour of Congress would be branded as Gaddar and whosoever would cast a vote in favour of Bharatiya Janata Party shall not be pardoned by Khuda. As per Sri Saran, the applicant could have used the word Bhagwan but he deliberately and intentionally used the word Khuda for those voters who cast their votes to the Bharatiya Janata Party. During investigation, sufficient material has been collected by the Investigating Officer in support of the allegation; therefore, the intention of the present applicant to use the word Khuda for those voters who cast their votes to the Bharatiya Janata Party and also why the voters of Congress would be branded as Gaddar of the country may be determined during the course of the trial. Sri Saran has stated that both the learned court below, i.e., the learned trial court as well as the revisional court, have considered the arguments of the present applicant thoroughly and carefully and returned their findings strictly in accordance with law; therefore, there is no infirmity or illegality in those orders, so the present petition may be dismissed and the applicant may be directed to participate in the trial proceedings so that the trial may be conducted and concluded with expedition. Since he has already been protected by the Supreme Court of India, he has no reasonable apprehension of his arrest in any manner whatsoever., Heard learned counsel for the parties and perused the material available on record., Article 19 of the Constitution of India gives all citizens the rights regarding freedom of speech and expression but subject to reasonable restrictions for preserving inter‑alia public order, decency or morality. The extent of protection of speech depends on whether such speech would constitute a propagation of ideas or would have any social value. If the answer is affirmative, such speech would be protected under Article 19(1)(a); if the answer is negative, such speech would not be protected under Article 19(1)(a). Reasonable restrictions are meant for preserving inter‑alia public order, decency or morality. Prima facie, it is not decent for a person who is the Chief Minister of a State to utter any sentence or word which has a hidden meaning. As per the contents of his speech, the voters of the Congress would be termed as Gaddar of the country whereas the voters of the Bharatiya Janata Party would not be pardoned by Khuda. It is true that Khuda, Bhagwan or God are one and the same but using the word Khuda by a Hindu leader only for those voters who cast their votes to the Bharatiya Janata Party and not to the Congress can only be clarified by the applicant during the trial about his intent to use such word. I am unable to comprehend how such speech would constitute a propagation of ideas or would have any social value. Since credible evidence to that effect is said to have been collected during investigation and a charge sheet has been filed, the veracity of the charge may not be examined or tested by this Court by invoking its inherent power under Section 482 Code of Criminal Procedure., For the convenience, Section 125 of the Representation of the People Act, 1951 is reproduced herein below: 125. Promoting enmity between classes in connection with election. Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both., From the perusal of Section 125 of the Representation of the People Act, 1951, it appears that if feelings of enmity or hatred between different classes of citizens of India are promoted, that shall be treated as an offence under such section and punishable under Section 125 of the Representation of the People Act, 1951. The statement given by the applicant is not plain and simple; for one set of voters he utters the term Gaddar of the country and for the other set he says that Khuda shall not pardon them. Prima facie, it appears that he is threatening the latter voters in the name of Khuda, knowing fully well that using the term Khuda may severely influence voters of a different religion., So far as the submission of learned counsel for the applicant is concerned, the speech of the applicant is based on his personal opinion; therefore, no offence under Section 125 of the Representation of the People Act, 1951 may be constituted as it lacks mens rea. He will have to clarify his opinion before the trial court as to what is his source of knowledge that any person who believes in Khuda and casts votes to Bharatiya Janata Party would not be pardoned by Khuda and why this would not apply to voters who cast votes to Congress. In certain cases, courts have considered knowledge as an essential element of the offence, not mens rea. Therefore, if during the investigation credible evidence/materials have been collected, a charge sheet has been filed, cognizance has been taken, and the discharge application has been rejected by the learned trial court by a speaking and reasoned order which has been upheld by the revisional court, then the applicant must participate in the trial proceedings., Notably, the Supreme Court of India has not stayed the proceedings pending against the present applicant before the trial court and only his presence has been dispensed with while the appeal is pending; therefore, the trial or proceedings of the present case may not be stayed or quashed., The power of the Uttarakhand High Court enshrined under Section 482 Code of Criminal Procedure is an inherent power to secure the ends of justice or to prevent any abuse of the process of any Court. This is an extraordinary power of the High Court like Article 226 of the Constitution of India but the Court must be very careful and cautious before invoking this power to ensure that if the power is not invoked, the litigant would suffer irreparable loss and injury and it would be manifest injustice and abuse of the process of law. Therefore, the Supreme Court of India has observed in a catena of cases that this power should be invoked very sparingly and cautiously., The Uttarakhand High Court at Nainital has considered an almost similar and identical case in re; Rajendra Singh Bhandari Vs. State of Uttarakhand and Another, 2020 SCC OnLine Utt 551, and, considering the relevant dictums of the Supreme Court of India, that petition was dismissed. Relevant paragraphs no.10 to 18 of the said judgment are reproduced hereunder: 10. The scope of Section 482 of the Code has been considered by the Supreme Court in various judgments. 11. In Madhu Limaya v. State of Maharashtra, (1977) 4 SCC 551 : AIR 1978 SC 47, the Supreme Court held that the following principles would govern the exercise of inherent jurisdiction of the High Court (1) Power is not to be resorted to if there is a specific provision in the Code for redress of grievances of the aggrieved party. (2) It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice. (3) It should not be exercised against the express bar of the law engrafted in any other provision of the Code. 12. In Pepsi Food Limited v. Special Judicial Magistrate, (1998) 36 ACC 20, the Supreme Court observed that the power conferred on the High Court under Article 226 and 227 of the Constitution of India, and under Section 482 of the Code have no limits, but the more the power the more due care and caution is to be exercised in invoking these powers. 13. In Lee Kun Hee v. State of Uttar Pradesh, JT (2012) 2 SC 237, the Supreme Court held that the Court in exercise of its jurisdiction under Section 482 of the Code cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. 14. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Supreme Court of India considered in detail the provisions of Section 482 of the Code and summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent jurisdiction: (1) Where the allegations made in the first information report or the complaint, even if taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non‑cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) 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) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge., In the instant case, cognizance has been taken in the offence punishable under Section 125 of the Representation of the People Act, 1951. Section 125 of the Representation of the People Act, 1951 reads as follows: Section 125. Promoting enmity between classes in connection with election. Any person who in connection with an election under this Act promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred, between different classes of the citizens of India shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both., It is the fundamental duty of every citizen to promote harmony and the spirit of common brotherhood and fraternity amongst all the people of India, transcending religious, linguistic and regional or sectional diversities. For a fair and peaceful election, during the election campaign, a party or candidate should not indulge in any activity which may create mutual hatred or cause tension between different classes of the citizens of India on the ground of religion, race, caste, community or language., In the present case, the learned Chief Judicial Magistrate took cognizance after considering the evidence available on the record. It is well settled that at the time of considering the case for cognizance and summoning, the merits of the case cannot be tested and it is wholly impermissible for the Uttarakhand High Court to enter into the factual arena to adjudge the correctness of the allegations. The Uttarakhand High Court would not also examine the genuineness of the allegations since it does not function as a Court of Appeal or Revision while exercising its jurisdiction under Section 482 of the Code. In this matter it cannot be said that there are no allegations against the applicant. Apart from this, learned counsel for the applicant could not show at this stage that the allegations 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 applicant., The use of the expression \promotes or attempts to promote\ in Section 125 of the Representation of the People Act, 1951 shows that there has to be mens rea on the part of the accused to commit the offence of promoting disharmony amongst different religions, whereas the case of the applicant is that this matter is launched by political opponents. These allegations are required to be tested only at the time of trial. The Uttarakhand High Court cannot hold a parallel trial in an application under Section 482 of the Code., In view of the settled law as articulated by the Supreme Court of India, facts and circumstances as considered above, the present case does not fall in any category set out in the judgment of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335. Further, I find no infirmity, illegality or perversity in the impugned orders dated 21.10.2022 passed by the revisional court and in the order dated 04.08.2022 passed by the learned trial court as both the impugned orders are well considered, reasoned and speaking orders. Accordingly, the prayers made in this application are refused., Since the case has to be tried, I make it clear that the observations made in the preceding paragraphs of this order are only for the disposal of this application filed under Section 482 Code of Criminal Procedure. These observations will not influence the trial court while deciding the case., In the aforesaid terms, the application filed under Section 482 Code of Criminal Procedure is dismissed., No order as to costs., Before parting with, I appreciate the hard work and research done by my Law Intern Mr. Mudit Singh for finding out the case laws applicable in the present issue.
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Shephali Micropark Logistics Pvt Ltd, Petitioner, versus the State of Maharashtra and another Respondent. Nirmal Motors through its Proprietor, Petitioner, versus State of Maharashtra through Department of Transport and others Respondents. Nevaan Motors Pvt Ltd through its Director, Petitioner, versus State of Maharashtra through Department of Transport and others Respondents. Bavaria Motors Pvt Ltd, Petitioner, versus State of Maharashtra through Department of Transport and others Respondents. 13th April 2022. Asset Cars Pvt Ltd, Petitioner, versus State of Maharashtra through Department of Transport and others Respondents. Vitiality Business Support Services LLP through Partner Bhavik M Thakkar, Petitioner, versus State of Maharashtra through Secretary and others Respondents. Harshil Chokey, Petitioner, versus State of Maharashtra and another Respondent. Renul H Chokey, Petitioner, versus State of Maharashtra and another Respondent. 13th April 2022. Gautam C Modi, Petitioner, versus State of Maharashtra and another Respondent. Forthpoint Automotive Pvt Ltd and another, Petitioners, versus State of Maharashtra and another Respondents. Salasar Autocrafts Pvt Ltd through its Authorized Officer, Petitioner, versus the State of Maharashtra through its Secretary and others Respondents. Aditya P Jakhete, Petitioner, versus the State of Maharashtra through the Secretary and others Respondents. Megha Ajay Garg, Petitioner, versus the State of Maharashtra through Secretary Transport Department and others Respondents. Ajay P Garg, Petitioner, versus the State of Maharashtra through Secretary Transport Department and others Respondents., Mr. Pradeep Thorat, with Aditi S Naikare and Aniesh Jadhav, for the Petitioner in Writ Petitions WP/4271/2022, WP/4267/2022, WP/4269/2022; Mr. P. P. Kakade, GP, with S. S. Panchpor, AGP, for the Respondent-State in all Writ Petitions. Ms. Pooja Thorat, with Anukul Seth, for the Petitioner, in Madhav J. Jamdar, Justice. Dated: 13th April 2022., This group of matters relates to the second sale and several Bharat Stage-IV (BS-IV) compliant vehicles. Shortly stated, the Respondents have in most cases blacklisted these vehicles. In two cases, Writ Petition Nos. 4270 and 4271, registrations have actually been cancelled., Mr. Thorat for the Petitioner has taken us to a compilation of orders passed by the Supreme Court of India in the MC Mehta versus Union of India and others orders relating to vehicular pollution. This compilation starts with orders of 27th March 2020, very shortly after the Covid-19 pandemic and lockdown was announced, because there was a peculiar situation that arose in those circumstances., The origin of the regulations and restrictions placed by the Supreme Court of India may be traced to the order of 24th October 2018 of the Supreme Court in MC Mehta versus Union of India and others. In paragraph 25, interpreting the Central Motor Vehicle Rules, the Supreme Court said: 'Therefore, in exercise of the power vested in this Court under Article 142 of the Constitution, we read down sub-rule (21) of Rule 115 and direct that sub-rule (21) of Rule 115 shall be interpreted and understood to read that no motor vehicle conforming to the emission standard Bharat Stage-IV shall be sold or registered in the entire country with effect from 1-4-2020.', It may be advantageous at this point to straightaway turn to a summary of the legal position captured in the order of 28th June 2021 by a Division Bench of the Supreme Court of India (Justices Gupte and Karnik) in Writ Petition No. 2209 of 2021. This is part of the compilation tendered by Mr. Thorat from pages 79 to 82., The controversy in this Petition concerns registration of about fifteen four-wheeler vehicles and five two-wheeler vehicles which are registered by the Petitioner, who is a dealer in BMW, Mini Cooper, Porsche cars and Ducati bikes, in its own name prior to 31/03/2020. The State's objection to the registration of these vehicles arises from an order passed by the Supreme Court on 24/10/2018 directing the Union and the States not to permit sale or registration of motor vehicles conforming to the emission standard Bharat Stage-IV in the entire country with effect from 01/04/2020. This order has since been clarified by the Supreme Court by orders dated 27/03/2020 and 13/08/2020. The need for those clarifications arose as a result of the present Covid-19 pandemic, which held up registrations of vehicles which were sold prior to, but could not be registered as a result of the pandemic, and also for those vehicles whose sales were not reflected in E-Vaahan portals of the Regional Transport Offices in addition to the lost opportunity to the dealers to sell vehicles during the ten‑day period of actual lockdown., In the Petitioner's case, the Petitioner had purchased these vehicles and registered them in its own name prior to 31/03/2020. The registration is, therefore, not in breach of the Supreme Court order of 24/10/2018. As for registration in the name of a dealer, there is no bar in law for the same. A dealer is within his rights to purchase and register any vehicle in his own name. There is no prescribed number of vehicles which the dealer can so purchase and register. The observations of the Supreme Court in its clarificatory orders of 27/03/2020 and 13/08/2020 are a result of sales, which were neither conducted nor registered or placed on the portal before 30/03/2020. The Court was mindful of the fact that the dealers were conducting inter se sales and registering vehicles in their own name under the extension granted by the Supreme Court in its order dated 27/03/2020 as a result of the peculiar situation arising out of the pandemic. The dealers attempted to get over the bar in the order of 24/10/2018 by conducting inter se sales and register vehicles in the ten‑day window opened by the Court for registration of sales of Bharat Stage-IV compliant vehicles as a result of the pandemic. It was these sales and registrations which were frowned upon by the Supreme Court and not permitted in its orders dated 27/03/2020 and 13/08/2020. The observations of the Supreme Court in these two orders have nothing to do with those vehicles, which were sold prior to 31/03/2020, and which sales were registered and put on the portal before 31/03/2020., We have also seen the orders passed by the Supreme Court of India on 27th March 2022, 8th July 2020, 31st July 2020, 13th August 2020, 24th November 2020 and 30th November 2020., In our understanding of the situation and consistent with the 24th October 2018 order, the Supreme Court of India did not permit Bharat Stage-IV vehicles to enter the market, that is to say to be allowed to ply on Indian roads after 1st April 2020. The cut‑off date was 31st March 2020. The lockdown necessitated some flexibility in this deadline but the primary objective was to ensure strict adherence to the 31st March deadline and to then evolve steps by which this could be made effective. To this end, the directions that were issued required the details of the vehicles should be uploaded to the E-Vaahan portal before 31st March 2020. Another requirement was that transfers should be registered, that is to say from dealers to purchasers by that date. The third requirement was in regard to temporary or permanent registrations at the instance of various Regional Transport Offices across the country., To understand this clearly, what was prohibited was automobile and vehicle dealers holding on to vast inventories and stocks of un‑transferred Bharat Stage-IV‑compliant vehicles and then offloading them into the market after 1st April 2020. That would have violated the 24th October 2018 order. The reason for the prohibition was that the regulatory regime was moving towards cleaner energy and fuels with stricter standards at the level of BS-VI. It would have been incongruous to allow Bharat Stage-IV vehicles to flood the market at a time when the required norm was of BS-VI compliance. At the same time, sufficient allowance had to be made in keeping with the 24th October 2018 order to ensure that commercial interests were not jeopardized provided they met the 31st March 2020 deadline., Now in these cases something peculiar has happened. The automotive and vehicle dealers did in fact have unsold stock or inventory. To meet the 31st March 2020 deadline, they transferred their vehicle initially to the names of individuals. Some of those individuals were partners, proprietors or directors of the dealership themselves. This is the real concern of the authorities who say that these initial transfers, all done by 31st March 2020, were fraudulent and were meant to escape the Supreme Court‑mandated orders., We are unable to find anything in the Supreme Court orders that prohibited a transfer of this inventory or stock to individual directors, partners or dealers themselves. The requirement seems to be that there ought to have been an off‑take from the distributors to individuals before 31st March 2020., We return to the Division Bench order of 28th June 2021. This encapsulates the mischief that the Supreme Court sought to cure because it prevented a rush of inter se sales and registrations in a ten‑day window that was opened up only on account of the pandemic. It was this that the Supreme Court frowned on and did not allow by its orders of 27th March 2020 and 13th August 2020. As the Division Bench noted, this had nothing to do with vehicles that were sold prior to 31st March 2020 and which sales were registered and entered on the E-Vaahan portal before 31st March 2020., The result of this discussion is that if there was a sale prior to 31st March 2020 and an entry of that sale on the E-Vaahan portal on or before 31st March 2020, then the identity of the transferee was and is clearly immaterial. The requirement of a sale prior to that date and a registration prior to that date itself acted as an automatic filter and limited the number of Bharat Stage-IV compliant vehicles that could possibly enter the market. Conversely, if a Bharat Stage-IV vehicle was either not sold before 31st March 2020 or its sale was not registered on the E-Vaahan portal before 31st March 2020, then it could not be allowed to enter the market., What has happened thereafter is that the individuals from the dealerships or distributorships who took the vehicles legitimately (or at least not illegitimately) in their names then further sold the vehicles to individuals. The authorities seem to have taken the stand that such second sales by these distributors after 31st March 2020 were all illicit and prohibited. We do not believe this is a correct reading of these orders. A more accurate reading is that the second sales are permitted but are restricted to those vehicles that were sold before 31st March 2020 and which sales were registered on the E-Vaahan portal before 31st March 2020. If such second sales are not allowed (of vehicles complying with the 31st March 2020 deadline), then another, possibly absurd and possibly environmentally unacceptable result would occur namely that there would be a large stock of vehicles now in the names of individuals connected with distributorship or dealership which could not be used at all and would have to be turned to scrap or junked without ever being used. We see nothing in the orders passed by the Supreme Court of India to support such a rigid view., There is the remaining question of registrations by the Regional Transport Offices and whether these registrations had to be received before 31st March 2020. In this context, we must bear in mind that the lockdown was announced on 24th March 2020. Many of the RTO offices were functioning in a limited way. Registrations though applied for in time may have been delayed. Mr. Panchpor states that the offices were open only for the purposes of registration but we are also mindful of the fact that in some cases the actual registrations may have been received at a later date in April and were not necessarily received on or before 31st March 2020. In all the cases before us we are assured that the applications for RTO registration were made on or before 31st March 2020., Thus, in all these cases sales were before 31st March 2020. The uploading to the E-Vaahan portal was before 31st March 2020. Taxes were also paid prior to 31st March 2020. Registrations of the RTO were sought prior to that date., The only question therefore is once these vehicles fall in the class of legitimately registered and permissible Bharat Stage-IV compliant vehicles, are they prohibited from what is in effect a used‑car or second‑hand sale. This does not seem to have been prohibited by the Supreme Court orders. The apprehension by the authorities that the Supreme Court orders must necessarily result in a prohibition on second‑hand sales does not appear to us to be correct. There was undoubtedly a mischief that was to the mind of the Court and, as the Division Bench of the Supreme Court noted, it was because of an opening or window for registration during which, the Supreme Court noted, an unusually large number of applications were made of inter se transfers. In other words, having missed the 31st March 2020 deadline, people were rushing to take advantage of the ten‑day extended window. This is what the Supreme Court reversed as the Division Bench has noted in paragraph 3 of its 28th June 2021 order., Consequently, in all these Petitions, we make the order absolute and quash all blacklisting orders against all vehicles. The cancelled registrations in the two petitions mentioned above are also to be restored., We make it clear that we have not by this order permitted the registration, sale or further transacting of any vehicle that does not meet all three requirements mentioned above. If any vehicle is found to have been first sold on or after 1st April 2020 or registered on the E-Vaahan portal after 1st April 2020 or RTO registrations sought after that date, it falls afoul of the Supreme Court mandate and cannot be permitted to be registered, sold or plied., Finally, we clarify that it is not sufficient to meet any one of these conditions. All three conditions must necessarily be met. Once those conditions are met, however, the owner of the vehicle may freely transfer that vehicle to another owner subject to the usual norms that are applicable (as for instance in the city prohibiting older vehicles above a certain age from plying within city limits)., In all cases where fitness certificates have lapsed, applications for renewal will be entertained and processed in due course in accordance with law., All Writ Petitions are disposed of in these terms. There will be no order as to costs.
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Reserved on: 13th July, 2023 Pronounced on: 29th August, 2023 Through: Petitioner in person versus Through: Mr. Harish Pandey and Mr. Anshuman Tiwari, Advocates. I.A. No. 3129/2021 (under Section 8, 83 and 86 of the Representation of People Act, 1951 read with Order VI Rule 16 and Order VII Rule 11 of the Code of Civil Procedure, 1908 on behalf of Respondent)., Mr. Ramesh, the Petitioner‑in‑person, contested as an independent candidate in the 2019 general elections for the 04 New Delhi Parliamentary Constituency. He now challenges the election of Respondent Ms. Meenakshi Lekhi, the returned candidate. Central to his claims are allegations of discrepancies in Respondent's election expenditure and her involvement in corrupt election practices. In her defence, the Respondent has controverted these accusations, and has further submitted the present application seeking dismissal of the petition, by referencing Sections 81, 83 and 86 of the Representation of People Act, 1951 and Order VI Rule 16 and Order VII Rule 11 of the Code of Civil Procedure, 1908. This judgment aims to appraise the validity of Respondent's application and scrutinise the Petitioner's allegations, thereby determining the appropriate course of action in this electoral contest., Petitioner's grounds of challenge are broadly classified under the following heads: Record keeping of the election expenditure and its accessibility: According to Sections 77 and 78 of the Act, every candidate must chronicle their daily election expenditure from nomination day to result day. This record should be submitted to the District Election Officer within thirty days from the date of declaration of the winning candidate. Rule 88 of the Conduct of Elections Rules, 1961 further stipulates that any person can inspect these expense accounts upon payment of necessary fee. However, Petitioner's request for access to Respondent's expenditure details under the Right to Information Act, 2005 was declined. The rationale provided was the unavailability of any provision to provide documents pertaining to the candidates of the 2019 Lok Sabha Elections to the general public., Unlawful election practices: Respondent allegedly resorted to unlawful methods to secure a win, including the casting of fraudulent votes by election staff, who impersonated legitimate voters., Affidavit discrepancies: The affidavit presented by the Respondent, detailing her assets, did not conform to the governing rules., Unaccounted expenditures: While submitting her nomination on 19th and 23rd April 2019, the Respondent was reportedly accompanied by a significant entourage with around 200 vehicles. This substantial expenditure was glaringly absent from the official records. Other unreported costs include outlays on meetings, rallies, the hiring of commercial vehicles, and refreshments. Respondent has misused government resources like vehicles, accommodations and community centres for campaign activities. She purportedly spent around Rs. 50,00,000 on promotional materials, in direct violation of the Act and its subordinate rules. Expenses on photography, media advertisements, telecommunication, among others, were also allegedly downplayed. Distribution of T‑shirts to potential voters on 27th April 2019 is also under scrutiny., Grand event and expenditure excess: On 01st May 2019, a large‑scale event, organised by party stalwarts, ministerial staff and an estimated crowd of 1,00,000 people, was orchestrated by the Respondent. The financial records do not account for this grand affair, whose costs are believed to surpass Rs. 1 crore, exceeding the Election Commission of India's stipulated ceiling of Rs. 70 lakhs for campaign‑related expenses. To further his case, he placed reliance on the judgment in Kanwarlal Gupta v. Amar Nath Chawla and Others, wherein it was held that expending large amounts towards election‑related activities in excess of the prescribed limit is a corrupt practice., Concerns about VVPAT verification: A draw of lots for the random inspection of five polling stations, intended to verify the VVPAT slips, was scheduled for 23rd May 2018. This exercise was to be transparently conducted in the presence of all the candidates or their agents. However, only the draw at the Greater Kailash constituency witnessed the Petitioner's presence, raising doubts on the procedure's integrity., Respondent primarily raised the following objections: Lack of concrete evidence: Petitioner's accusations are broad, imprecise and lack substantial evidence or documentation supporting the claims of corrupt election practices. His general statements in the petition do not align with the allegations made under Sections 77, 80(a), 100(b) or (d), 123, 125A, 126 and 127A(2) of the Act. Without concrete facts that indicate a genuine cause of action, the petition should be dismissed, in view of the jurisprudence laid down by the Supreme Court., Timeline and procedural oversights: As per Section 81 of the Act, any petition challenging an election should be submitted within 45 days from the announcement date of the successful candidate's election. The Delhi High Court's Election Rules mandate that such submissions should occur during official court hours. In the present situation, while the election results were declared on 23rd May 2019, making 07th July 2019 the deadline for petition submission, the Petitioner submitted it on 08th July 2019, a day after the deadline as 07th July 2019 was a Sunday (court holiday). Moreover, the submission bore acknowledgement of the court staff, time‑stamped at 05:15 PM, suggesting that it was filed outside of regular court hours. This late submission renders the petition time‑barred and, thus, ineligible for consideration. Additionally, Petitioner's endorsement on the petition, as mandated by Chapter XXVI of the Delhi High Court (Original Side) Rules, 2018, is also missing., Faulty affidavit: The affidavit accompanying the petition is not compliant with the Act and 1961 Rules., Understanding the Court's jurisdictional ambit: The initial step in examining the veracity of this dispute requires understanding of the Court's jurisdictional parameters. Respondent primarily leans on Section 83 along with other pertinent provisions of the Act, while also invoking Order VII Rule 11 of the Code of Civil Procedure, 1908 for the petition's rejection., Section 81 – Presentation of petitions: An election petition calling in question any election may be presented on one or more of the grounds specified in subsection (1) of Section 100 and Section 101 to the High Court by any candidate at such election or any elector within forty‑five days from, but not earlier than the date of election of the returned candidate. Every election petition shall be accompanied by as many copies thereof as there are respondents mentioned in the petition and every such copy shall be attested by the petitioner under his own signature to be a true copy of the petition. Section 83 – Contents of petition: An election petition shall contain a concise statement of the material facts on which the petitioner relies; shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908. Where the petitioner alleges any corrupt practice, the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the particulars thereof. Section 86 – Trial of election petitions: The High Court shall dismiss an election petition which does not comply with the provisions of Section 81 or Section 82 or Section 117., The Act envisions a balance between ensuring electoral integrity and protecting elected representatives from frivolous or ill‑founded challenges. As such, before addressing Petitioner's allegations, the Court must first ascertain the petition's conformity to the prescribed procedural prerequisites. Respondent's plea for dismissal hinges on the argument that the petition lacks substantive details indicative of corrupt practices. While civil courts routinely dismiss claims that do not establish a clear cause of action, in election disputes this standard is of paramount importance. The contours of the Court's role in such matters is shaped by landmark rulings such as Samant N. Balkrishna and Anr. v. George Fernandez & Others, which emphasizes that leaving out crucial information can jeopardise the validity of a petition; Udhav Singh v. Madhav Rao Scindia, which crystallised that primary facts serve as the foundation for constructing a cause of action; and Azhar Hussain v. Rajiv Gandhi, which necessitates that petitioners must meticulously detail underlying facts when alleging corrupt practices., At the heart of any election petition lies Section 83 of the Act. This pivotal provision details the mandatory elements that an election petition must possess. Specifically, it mandates that the petition must provide a clear and concise statement of the essential facts upon which the challenge rests. While stressing completeness, the mandate of Section 83 has been emphasised through various judicial rulings. To miss even a single critical detail can be considered a transgression of Section 83(1)(a) of the Act, warranting rejection., Evaluating the allegations: The term material facts is pivotal when scrutinising an election petition. These are facts which, if established, would legally justify the Petitioner's claim. The concept of material facts demands specific and clear information to be presented in the petition to enable Respondent to understand the precise allegations and prepare an adequate defence. The inclusion of material facts, as mandated by the statute, is intended to uphold the integrity of the electoral process and prevent the abuse of the legal system for political or malicious purposes. Specific pleadings also assist the Court in effectively adjudicating the case, avoiding the need for additional clarifications, and expediting the resolution of disputes. It is well‑established in law that the omission of any material fact pertaining to a corrupt practice renders the cause of action incomplete, which is fatal to an election petition., The petition alleges that on 19 April 2019 and 23 April 2019, the Respondent filed her nomination forms as a candidate of the Bharatiya Janata Party in the 04 New Delhi Parliamentary Constituency. At the time of filing, a large number of vehicles (around 200) and approximately 500 persons were present in the office of the Returning Officer, District Election Officer, New Delhi. The persons were conducting a road show while coming from the BJP office to the Returning Officer's office. However, the Respondent has not lodged true accounts of her election expenses maintained under Section 77 of the Representation of People Act in the Expenditure Register for 19 April 2019 and 23 April 2019. On 24 April 2019 the Respondent organised a Nukkar Sabha and rally and used many vehicles, but has not lodged true accounts of expenditure incurred on petrol/diesel in the election expenditure register. The Respondent has not lodged a true account of her election expenditure incurred on 25 April 2019. On 26 April 2019 the Respondent showed 32 vehicles including commercial vehicles used in the election and no true account has been lodged in the election expenditure register for that date. The registration numbers of vehicles were not disclosed in the day‑to‑day account. The Respondent similarly has not shown correct expenses in the day‑to‑day account of her election expenses for meetings and rallies conducted on 5 May 2019, and vehicle charges are not lodged in the expenditure register. The Respondent also failed to maintain a day‑to‑day true account of election expenditure as required under Section 77 of the Representation of People Act, 1951, and lodge the complete detail of expenses regarding loudspeakers, cars, e‑rickshaws, hand‑puller rickshaws, Tata Chota Hathi, rallies, Nukkar Sabha and public meetings, sofa sets, chairs, tents etc., used for public meetings organised from 23 April 2019 to 12 May 2019 in ten MLA constituencies (Karol Bagh, Patel Nagar, Moti Nagar, Delhi Cantt., New Delhi, Kasturba Nagar, Malviya Nagar, R.K. Puram, Greater Kailash)., It is pertinent to mention that the election of the Respondent as the returned candidate may be declared null and void as a corrupt practice under Sections 77 and 123 of the Representation of People Act, 1951., According to Appendix‑A issued by the District Election Officer, New Delhi, the complete detail has been mentioned regarding the printing of stationery such as pamphlets, stickers, posters, T‑shirts etc., but without prior approval from the competent authority, the stationery was printed in excess amounting to approximately Rs. 50 lakhs, which is a violation of the Rules and the format issued by the District Election Office, New Delhi., As can be seen from the foregoing excerpt, while the petition is replete with allegations of corrupt electoral practices, it notably lacks the requisite material facts and specific details. Petitioner argues that Respondent exceeded the permissible election expenditure limit of Rs. 70 lakhs, but the basis for this claim remains vague. Throughout the petition, the central contention is that Respondent understated the expenses related to election activities in the official register. However, there is a conspicuous absence of specific details highlighting the discrepancies between the declared amounts and the alleged actual expenditures. Petitioner’s claims appear to be predicated on conjectures and assumptions rather than on solid evidence. For instance, while alleging that the Respondent undervalued the expenses of election‑related activities, there is no clarity on the actual costs of goods and services employed during the campaign, such as vehicle rentals, fuel costs or venue charges for meetings. Petitioner has not elucidated the facts that would indicate adoption of corrupt practices, as defined in Section 123 of the Act. There is no positive statement explaining how Respondent’s impugned activities furthered her prospects and the manner in which such assistance was obtained. Petitioner has not set out concise details of persons involved, mode of undervaluing of expenditures and manner of alleged fabrication of the accounts register. The lack of specific details regarding expenses incurred on various election‑related activities and the undervaluation of expenditures undermines the credibility of the accusations. Thus, the Court is of the opinion that the Petitioner has failed to plead any material fact as a corrupt election practice, as envisaged in Section 83(1)(a) and (b), which could plausibly aid his case for annulment of Respondent’s election., Non‑compliance with mandatory provisions relating to verification of pleadings: In accordance with Section 83(1)(c) of the Act and the 1961 Rules, it is imperative that any election petition bringing forth allegations of corrupt practices is substantiated by an affidavit, adhering to the format delineated by the regulations, specifically Rule 94A of the 1961 Rules. The prescribed format, encapsulated in Form 25 to the aforesaid Rules, requires the petitioner to solemnly affirm that the statements made in the petition about the commission of the corrupt practice and the particulars thereof are true to his knowledge., The affidavit accompanying the Petitioner's petition deviates from the prescribed format. Given the quasi‑criminal nature of allegations concerning electoral malpractices, it is paramount that these assertions are treated with the gravity they deserve. The affidavit vaguely alludes to statements made about corrupt practices without explicitly delineating which ones are based on the Petitioner's direct knowledge. It only contains a general averment that the facts mentioned in paragraphs A to AU of the affidavit are true to his knowledge. Additionally, both the petition and the affidavit fall short in pinpointing the origins of the claims which are not to his personal knowledge. While it might be possible to rectify the shortcomings in the affidavit, a comprehensive evaluation of the situation, including the absence of material facts and the Supreme Court's verdict in V. Narayanaswamy v. C. P. Thirunavukkarasu, lends weight to the objections raised by Respondent regarding the rejection of the petition., Limitation under Section 81 of the Act: The statutory timeframe for filing a petition challenging an election is 45 days from the date of result declaration. In the present case, the last day to file the petition was 07 July 2019, which fell on a Sunday (non‑working day). Therefore, the Petitioner lodged the case on the next working day, 08 July 2019. Respondent's grievance on this aspect is that the petition was not filed during court hours. However, this argument does not resonate with the Court's perspective. Given the technological advancements and the introduction of digital filing mechanisms, the traditional constraints of filing within specific court hours have evolved. A narrow interpretation suggesting petitions be filed exclusively during court hours would undermine the purpose of online submission systems. In essence, while the office might have been non‑operational, the window for filing remained open. Thus, the Petitioner's action of filing the petition at 05:15 PM, well within the prescribed limit, does not compromise its maintainability., Upon a comprehensive scrutiny, the Court finds that the present election petition fundamentally lacks material facts, which are essential to confer it with a cause of action. Sans any underpinning material, the Petitioner's broad averments are insufficient to sustain the allegations of electoral corrupt practices. The incurable defect in the affidavit accompanying the petition, as stipulated under Rule 94A of the 1961 Rules, further fortifies the Respondent's case for rejection of the petition., Therefore, the application is allowed and disposed of., In view of the foregoing discussion, the petition being bereft of a cause of action is dismissed under Order VII Rule 11 of the Code of Civil Procedure, 1908. Pending applications are also disposed of.
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These appeals impugn common final judgment dated 24.01.2014 in Family Court of Andhra Pradesh no. 236 of 2011 filed by the respondents and Family Court of Andhra Pradesh No. 403 of 2012 filed by the appellant; passed by the Andhra Pradesh High Court. In these appeals, the subject matter of dispute between the mother and the parents of the deceased father of the child (grandparents) is the surname given to the child. While the issue of visitation rights was also advanced in the pleadings, no arguments were made in the Andhra Pradesh High Court regarding same and therefore we have not considered the judgment of the Andhra Pradesh High Court on the said aspect., The Appellant married Konda Balaji, son of respondents, on 18.12.2003. A child was born out of wedlock on 27.03.2006. However, the husband of the Appellant expired on 14.06.2006. At the time the child was merely two months old. Thereafter, the Appellant married Sri Akella Ravi Narasimha Sarma, a Wing Commander in the Indian Air Force on 26.08.2007. Out of this wedlock, the couple had a child and they live together. Presently, the child Master Ahlad Achintya is still a minor aged 16 years and 4 months., On 9th April 2008, the respondents filed a petition under Section 10 of the Guardian and Wards Act, 1890 for appointing them as guardians of Master Ahlad Achintha, son of the appellant. At the time of filing the petition the child was about two years old and the respondents made the following prayer: To appoint the petitioners as guardians to the minor child namely Ahlad Achintha, aged two years for their person; To grant visiting rights of the minor child pending disposal; For costs of the petitioner; and For such other relief or reliefs as this Honourable Family Court of Andhra Pradesh deems fit and proper in the circumstances of the case and in the interest of justice., The District Court vide order dated 20.09.2011 dismissed the petition filed by the respondents and was of the opinion that it would not be appropriate to separate the child from the love and affection of his mother. The District Court also took into account the old age of the respondent grandparents. It, however, granted visitation rights to the respondents and directed the Appellant and her husband to bring their child to the house of her parents at Hyderabad once in three months, preferably on Dussehra, Deepavali and Sankranti festival days and during school vacations. The respondents were permitted to see their grandson during such period for two days from sunrise to sunset., The order of the District Court was challenged in appeals before the Andhra Pradesh High Court by both parties. During the course of arguments, it was brought to the notice of the Andhra Pradesh High Court that the surname of the child was changed from Konda to Akella. The Andhra Pradesh High Court, disposing of the petition vide common judgment dated 24.01.2014, passed the following directions: The Appellant i.e., Akella Lalitha would be the natural guardian of the child, but shall be under obligation to bring the child to the residence of the respondents in such a way that the child will be with them for a period of two days during winter vacation. The respondents shall also be entitled to see the child in the residence of the Appellant, with prior intimation; The Appellant shall complete the formalities for restoration of the surname and father’s surname of the child within three months from the date of receipt of a copy of this order; and So far as the name of the father of the child is concerned, it is directed that wherever the records permit, the name of the natural father shall be shown and if it is otherwise impermissible, the name of Ravi Narasimha Sarma shall be mentioned as step‑father., The primary issues that require adjudication are: Whether the mother, who is the only natural/legal guardian of the child after the death of the biological father, can decide the surname of the child. Can she give him the surname of her second husband whom she remarries after the death of her first husband and can she give the child for adoption to her husband? Whether the Andhra Pradesh High Court has the power to direct the Appellant to change the surname of the child especially when such relief was never sought by the respondents in their petition before the trial court?, Addressing the first issue, both the lower courts have concurred that the mother is the natural guardian of the child after the demise of the father., Section 6 of the Hindu Adoption and Maintenance Act, 1956 provides as follows: The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are (a) in the case of a boy or an unmarried girl the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl the mother, and after her, the father; (c) in the case of a married girl the husband., Section 9(3) of the Hindu Adoption and Maintenance Act, 1956 provides that the mother may give the child in adoption if the father is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind., In the case of Githa Hariharan and Ors. vs. Reserve Bank of India and Ors., this Court elevated the mother to an equal position as the father, bolstering her right as a natural guardian of the minor child under Section 6 of the Hindu Minority and Adoption Act, 1956., After the demise of her first husband, being the only natural guardian of the child we fail to see how the mother can be lawfully restrained from including the child in her new family and deciding the surname of the child. A surname refers to the name a person shares with other members of that person's family, distinguished from that person's given name or names; a family name. Surname is not only indicative of lineage and should not be understood just in the context of history, culture and lineage but more importantly the role it plays with regard to the social reality along with a sense of belonging for children in their particular environment. Homogeneity of surname emerges as a mode to create, sustain and display family., The direction of the Andhra Pradesh High Court to include the name of the Appellant’s husband as step‑father in documents is almost cruel and mindless of how it would impact the mental health and self‑esteem of the child. A name is important as a child derives his identity from it and a difference in name from his family would act as a constant reminder of the fact of adoption and expose the child to unnecessary questions hindering a smooth, natural relationship between him and his parents. We, therefore, see nothing unusual in the Appellant mother, upon remarriage, having given the child the surname of her husband or even giving the child in adoption to her husband., While an adoption deed is not necessary to effect adoption and the same can be done even through established customs, in the present case the Appellant submits that on 12th July 2019, during the pendency of the present petition, the husband of the Appellant/step‑father of the child adopted the child by way of a registered adoption deed. Section 12 of the Hindu Adoption & Maintenance Act, 1956 provides that an adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family., According to the Encyclopedia of Religion and Ethics, adoption indicates the transfer of a child from old kinsmen to the new. The child ceases to be a member of the family to which he belongs by birth. The child loses all rights and is deprived of all duties concerning his natural parents and kinsmen. In the new family, the child is like the natural‑born child with all the rights and liabilities of a native‑born member. Therefore, when such child becomes a member of the adoptive family it is only logical that he takes the surname of the adoptive family and it is thus befuddling to see judicial intervention in such a matter., While the main object of adoption in the past has been to secure the performance of one’s funeral rights and to preserve the continuance of one’s lineage, in recent times the modern adoption theory aims to restore family life to a child deprived of his or her biological family. Therefore, in light of the above observations, the first issue is settled in favour of the appellant., Coming to address the second issue, while this Court is not apathetic to the predicament of the respondent grandparents, it is a fact that absolutely no relief was ever sought by them for the change of surname of the child to that of the first husband/son of respondents. It is settled law that relief not found on pleadings should not be granted. If a court considers or grants a relief for which no prayer or pleading was made, depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice., In the case of Messrs. Trojan & Co. Ltd. Vs. Rm. N.N. Nagappa Chettiar, this Court considered the issue as to whether relief not asked for by a party could be granted and that too without having proper pleadings. The Court held as follows: \It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case.\, In the case of Bharat Amratlal Kothari & Anr. Vs. Dosukhan Samadkhan Sindhi & Ors., the Court held: \Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner.\, In this case, while directing for change of surname of the child, the Andhra Pradesh High Court has traversed beyond pleadings and such directions are liable to be set aside on this ground., Before parting with this subject, to obviate any uncertainty it is reiterated that the mother, being the only natural guardian of the child, has the right to decide the surname of the child. She also has the right to give the child in adoption. The court may have the power to intervene but only when a prayer specific to that effect is made and such prayer must be centered on the premise that the child’s interest is the primary consideration and it outweighs all other considerations. With the above observations the directions of the Andhra Pradesh High Court as far as the surname of the child is concerned are set aside., As a consequence, the appeals stand allowed in part., Looking to the nature of the case and the position of the parties, they are directed to bear their own costs and expenses incurred in these appeals.
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This reference to the larger bench of five judges arises out of the writ petitions filed challenging Notification No. 3407(E) dated 8 November 2016 (hereinafter referred to as the impugned Notification), issued by the Central Government in exercise of the powers conferred by sub-section (2) of Section 26 of the Reserve Bank of India Act, 1934 (hereinafter referred to as the RBI Act), vide which the Central Government declared that the bank notes of denominations of the existing series of the value of five hundred rupees and one thousand rupees shall cease to be legal tender with effect from 9 November 2016, to the extent specified in the impugned Notification. This is popularly known as an act or policy of demonetisation., Immediately after the impugned Notification was issued, several writ petitions challenging the policy of demonetisation were filed before the Supreme Court of India as also before various High Courts. Transfer petitions were filed by the Union, seeking transfer of all such matters pending before the High Courts to the Supreme Court of India., A bench of learned three judges of the Supreme Court of India passed an order dated 16 December 2016 in Writ Petition (Civil) No. 906 of 2016 and other connected petitions, observing therein that, in their opinion, the following important questions fall for consideration: (i) Whether the notification dated 8 November 2016 is ultra vires Section 26(2) and Sections 7, 17, 23, 24, 29 and 42 of the RBI Act, 1934; (ii) Does the notification contravene the provisions of Article 300A of the Constitution; (iii) Assuming that the notification has been validly issued under the RBI Act, 1934 whether it is ultra vires Articles 14 and 19 of the Constitution; (iv) Whether the limit on withdrawal of cash from the funds deposited in bank accounts has no basis in law and violates Articles 14, 19 and 21; (v) Whether the implementation of the impugned notification(s) suffers from procedural and/or substantive unreasonableness and thereby violates Articles 14 and 19 and, if so, to what effect; (vi) In the event that Section 26(2) is held to permit demonetisation, does it suffer from excessive delegation of legislative power thereby rendering it ultra vires the Constitution; (vii) What is the scope of judicial review in matters relating to fiscal and economic policy of the Government; (viii) Whether a petition by a political party on the issues raised is maintainable under Article 32; and (ix) Whether District Co-operative Banks have been discriminated against by excluding them from accepting deposits and exchanging demonetised notes., Vide the order dated 16 December 2016, the Supreme Court of India also directed that, if any other writ petitions or proceedings were pending in any High Court, further hearing of those matters should also remain stayed. The Supreme Court further directed that no other court should entertain, hear or decide any writ petition or proceeding on the issue of or in relation to or arising from the decision of the Government of India to demonetise the notes of Rs.500 and Rs.1,000, since the entire issue in relation thereto was pending consideration before the Supreme Court of India., On 8 November 2016, vide the impugned Notification, the Central Government, in exercise of the powers conferred by sub-section (2) of Section 26 of the RBI Act, notified that the specified bank notes (hereinafter referred to as SBNs) shall cease to be legal tender with effect from 9 November 2016. The SBNs were bank notes of denominations of the existing series of the value of Rs.500 and Rs.1,000. Under clause 1 of the Notification, every banking company and every Government Treasury was required to complete and forward a return along with the details of SBNs held by it at the close of business as on 8 November 2016, not later than 13:00 hours on 10 November 2016 to the designated Regional Office of the Reserve Bank of India. Under clause 2, individuals were entitled to exchange SBNs in various banks specified therein up to 30 December 2016 subject to certain conditions. Initially a limit of Rs.4,000 for such exchange was provided, to be reviewed after 15 days from the commencement of the Notification. For Know Your Customer (KYC) compliant bank accounts there was no limit on the quantity or value of SBNs that could be credited; for non‑KYC compliant accounts an outer limit of Rs.50,000 was fixed., Another notification of the same date granted various relaxations whereby SBNs could be used for making payment in Government hospitals, pharmacies, railway booking centres, consumer cooperative stores, milk booths, purchase of petrol, etc., valid till 11 November 2016. Thereafter, various notifications were issued from time to time granting further relaxations., On 30 December 2016, the Specified Bank Notes (Cessation of Liabilities) Ordinance, 2016 (hereinafter referred to as the 2016 Ordinance) was promulgated by the Hon'ble President of India. Subsequently, Parliament enacted the Specified Bank Notes (Cessation of Liabilities) Act, 2017 (hereinafter referred to as the 2017 Act), which received the assent of the then Hon'ble President of India on 27 February 2017. Section 3 of the 2017 Act provides that, on and from the appointed day, notwithstanding anything contained in the RBI Act or any other law for the time being in force, the SBNs which had ceased to be legal tender in view of the impugned Notification shall cease to be liabilities of the Reserve Bank of India under Section 34 of the RBI Act and shall cease to have the guarantee of the Central Government under sub-section (1) of Section 26 of the RBI Act., Section 4 of the 2017 Act provides for a grace period in case of certain classes of persons holding such SBNs on or before 8 November 2016 for tendering, with such declarations or statements, at offices of the Reserve Bank of India or in such other manner as may be specified by it. One class of persons who was provided a grace period by clause (i) of sub-section (1) of Section 4 was a citizen of India who makes a declaration that he was outside India between 9 November 2016 and 30 December 2016. Clause (ii) of sub-section (1) of Section 4 also provided a grace period for such class of persons for reasons that may be specified by Notification of the Central Government., Sub-section (2) of Section 4 provides that the Reserve Bank of India may, if satisfied after making such verification as it may consider necessary that the reasons for failure to deposit the notes within the period specified in the Notification referred to in Section 3 are genuine, credit the value of the notes in the person's KYC compliant bank account in such manner as may be specified by it. Sub-section (3) makes a provision for enabling any person aggrieved by the refusal of the Reserve Bank of India to credit the value of the notes under sub-section (2) to make a representation to the Central Board of the Reserve Bank of India within fourteen days of the communication of such refusal., On the very same day of the promulgation of the 2016 Ordinance, i.e., 30 December 2016, the Central Government issued Notification No. 4251(E), in exercise of the powers conferred by clause (b) of sub-section (1) of Section 2 read with clause (i) of sub-section (1) of Section 4 of the 2016 Ordinance. It provided a grace period till 31 March 2017 to citizens who were residents in India and till 30 June 2017 to citizens who were not resident in India. The proviso limited the amount of SBNs tendered to not exceed the amount specified under regulation 3 or regulation 8 of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2015 made under the provisions of the Foreign Exchange Management Act, 1999 and the conditions specified therein are complied with., Some of the writ petitions were listed before the Supreme Court of India on 21 March 2017, when the Court passed the following order: (1) Issue notice; (2) On our asking, Mr. R. Balasubramanyam, learned counsel, accepted notice on behalf of the Union of India and Mr. H.S. Parihar, learned counsel, accepted notice on behalf of the Reserve Bank of India; (3) Having heard submissions, which remained inconclusive, and before proceeding further, it was felt that the Court should ascertain from the Union of India (a) whether the Central Government intends to exercise the power conferred by clause (4)(1)(ii) of Ordinance 10 of 2016; and (b) if the answer to (a) is negative, the reason why the Central Government chose not to exercise its jurisdiction. An affidavit may accordingly be filed by the Central Government, explaining its position to this Court; (4) Needful be done within two weeks from today; (5) Post for hearing on 11 April., In pursuance of the directions issued by the Court, a short affidavit was filed on behalf of the Union of India on 7 April 2017. It stated: 'In view of the above and those to be urged at the time of hearing, it is most humbly submitted that the Central Government took a conscious decision that no necessity or any justifiable reason exists either in law or on facts to invoke its power under Section 4(1)(ii) of the Ordinance to entitle any person to tender within the grace period the specified bank notes.', The matter came up for hearing before this bench initially on 12 October 2022 and thereafter on various dates. The Court heard Shri P. Chidambaram and Shri Shyam Divan, learned Senior Counsel, Shri Prashant Bhushan, learned counsel, Shri Viplav Sharma, petitioner‑in‑person, Shri R. Venkataramani, learned Attorney General appearing for the Union of India and Shri Jaideep Gupta, learned Senior Counsel appearing for the Reserve Bank of India, as well as counsel appearing in the connected petitions., Shri P. Chidambaram, learned Senior Counsel, submitted that, upon its correct interpretation, sub-section (2) of Section 26 of the RBI Act must be read down in a manner that it does not permit the power to be exercised in respect of all series of notes of a specified denomination. He submitted that the word 'any' will denote that the power can be exercised only when a particular series of any denomination is sought to be demonetised., He further submitted that, on earlier occasions, namely the High Denomination Bank Notes (Demonetisation) Ordinance, 1946 and the High Denomination Bank Notes (Demonetisation) Act, 1978, all series of high denomination bank notes were demonetised. By the 1946 Ordinance, high denomination bank notes were meant to be all series of bank notes of the denominational value of Rs.500, Rs.1,000 and Rs.10,000. By the 1978 Act, they were meant to be all series of bank notes of the denominational value of Rs.1,000, Rs.5,000 and Rs.10,000. It is thus submitted that whenever it was found necessary to demonetise all series of a particular denomination, it was considered necessary to do so by way of a separate enactment of Parliament., He submitted that, since the bank notes are issued in different series, the words 'any series' before the words 'bank notes of any denomination' appearing in sub-section (2) of Section 26 of the RBI Act will have to be construed as limiting the power of the Government to declare only a specified series of notes to be no longer legal tender. The words 'any series' mean any specified series and not all series of bank notes., He submitted that, if it is held that the Central Government is conferred with the power under sub-section (2) of Section 26 of the RBI Act to demonetise currency notes of all series, then a situation may arise wherein the bank notes issued on the previous day can be demonetised on the very next day. As a result of the demonetisation done on 8 November 2016, even the currency notes issued on the previous day of the denominational value of Rs.500 and Rs.1,000 had become illegal tender., He submitted that if sub-section (2) of Section 26 of the RBI Act is not read down in the aforesaid manner, then the provision would be vulnerable to be challenged on the ground that it confers an unguided, unchannelled and arbitrary power upon the Executive Government. In such a situation, the provision is liable to be struck down on the ground that it violates Articles 14, 19, 21 and 300A of the Constitution of India. The fact that the demonetisation of all series of high denominational currency notes in the years 1946 and 1978 was done through separate enactments of Parliament would support the proposition., He submitted that, upon a plain reading of sub-section (2) of Section 26 of the RBI Act, there is neither any policy nor any guidelines in the provision. The factors required to be taken into consideration and those to be eschewed are not specified. If a drastic power of demonetising currency notes of all series in certain denominations is to be entrusted to the Executive Government, Parliament ought to have laid down the guidelines for exercising such power. In the absence of such guidelines, the delegation to the Executive Government is excessive, arbitrary and violative of Articles 14, 19, 21 and 300A of the Constitution of India., The learned Senior Counsel relied on the Constitution Bench judgments of this Court in the cases of Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another v. Union of India and others and Harakchand Ratanchand Banthia and others v. Union of India and others in support of his submissions., He further submitted that, in any case, the decision‑making process in the present case was deeply flawed and therefore is liable to scrutiny by judicial review of the Supreme Court of India., The learned Senior Counsel submitted that a plain reading of sub-section (2) of Section 26 of the RBI Act would reveal that the Central Government can exercise the power only on the recommendation of the Central Board. It is therefore implicit that the proposal for demonetisation must emanate from the Reserve Bank of India. The Central Board, consisting of members specified in Section 8 of the RBI Act, would consider all relevant material, weigh the pros and cons, consider the impact on the people and the economy before making a recommendation. However, the word 'may' postulates discretion, and the Central Government is not bound to accept the recommendation; the discretion must be exercised after careful consideration., The learned Senior Counsel submitted that, under Section 8 of the RBI Act, the only channel for non‑government directors to sit on the Central Board of the Reserve Bank of India is through clause (c) of sub-section (1) of Section 8. Usually experts in trade and commerce, economists, industrialists, etc., are nominated in that category. On 8 November 2016, when the decision for demonetisation was taken, there were only three independent directors under that clause, while seven vacancies existed, resulting in a majority of directors being representatives of the Central Government., He further submitted that a reverse mechanism was adopted: the Central Government initiated the proposal for demonetisation and sought the opinion of the Central Board vide its communication dated 7 November 2016. The meeting of the Central Board was held on 8 November 2016 at 5.00 p.m. Within hours, a recommendation of the Central Board was sent to the Central Government and, on the same date, the Hon'ble Prime Minister announced the decision of the Cabinet on national television at 8.00 p.m., The learned Senior Counsel submitted that, unless the following documents are produced by the respondents, it cannot be verified whether the Central Board while recommending demonetisation or the Central Government while deciding to notify demonetisation took into consideration the relevant factors or eschewed irrelevant factors: (a) The letter of the Central Government dated 7 November 2016; (b) The agenda note dated 8 November 2016, if any, placed before the Central Board of the Reserve Bank of India and the relevant research papers, background notes, information, data, report, etc.; (c) The recommendation of the Central Board dated 8 November 2016 to the Central Government; (d) The note for Cabinet, if any, that was placed before the Cabinet on 8 November 2016; (e) The actual decision of the Cabinet as recorded in the minutes of the Cabinet meeting dated 8 November 2016., It is submitted that only on perusal of the minutes of the meeting dated 8 November 2016 of the Central Board can it be seen whether the requisite quorum was present and whether one director from the category under Section 8(1)(c) of the RBI Act, as required under the Reserve Bank of India (General) Regulations, 1949, was present in the meeting., Shri Chidambaram submitted that there is no record available to show that there was application of mind to the relevant factors by the Central Board, nor by the Central Government. It is also not clear whether there was any Cabinet note based on the recommendation of the Central Board placed before the Cabinet for consideration. He submitted that the Hon'ble Prime Minister went on national television at 8.00 p.m. on 8 November 2016 in a slot that had already been booked by the Government, and announced the decision on demonetisation. He submitted that the decision‑making process was pre‑meditated and rushed, depicting a non‑application of mind and was deeply and fatally flawed. The procedure adopted was in total violation of the procedure contemplated under sub-section (2) of Section 26 of the RBI Act., He further submitted that neither the Reserve Bank of India nor the Central Government took into consideration the relevant factors and eschewed irrelevant factors before making such a far‑reaching recommendation and decision respectively, that would have serious consequences. As a result of demonetisation, 86.4 % of the currency (by value) was declared no longer to be legal tender and was eventually withdrawn, amounting in absolute terms to Rs.15,44,000 crore. Approximately 2,300 crore distinct notes became illegal overnight. At the relevant time, the notes of Rs.500 and Rs.1,000 were commonly used and, since they were demonetised overnight, millions of people were left without valid bank notes to buy essential goods such as food, milk or medicines. Thousands of families went without a meal; various voluntary organisations distributed free food to thousands of families during the relevant period., He submitted that the result of demonetisation was disastrous. It resulted in steep unemployment within a short period. Wages were not paid for several weeks. Millions of farmers were unable to withdraw or deposit money, lacking funds to buy seeds, fertilisers or to hire labour. The price of agricultural products dropped substantially, causing loss to the farmers., He submitted that the Government also did not take into consideration the fact that over 2 lakh ATMs were required to be recalibrated to dispense the newly issued notes. Out of 1,38,626 bank branches in India, over two‑thirds were located in metropolitan, urban and semi‑urban areas, while only one‑third were in rural areas, and 90 % of all ATMs were located in just 16 states. The seven states in North‑East India had only 5,199 ATMs, of which 3,645 were in Assam alone. Consequently, individuals residing in rural areas and the Northeast were disproportionately and adversely impacted, having to travel long distances and stand in queues to exchange notes, forsaking their livelihood at considerable expense., He submitted that, without taking into consideration all these factors, the Central Board made the recommendation and the Central Government took the decision of demonetisation. The consequence thereof is that demonetisation cost the economy about 1‑2 % of GDP, i.e. about Rs.1,50,000 crore., He further submitted that the objectives stated in the impugned Notification were false and illusory and could not have been achieved. One objective was to weed out fake currency notes that were causing adverse effect on the economy; another was to stop the use of high denomination bank notes for the storage of unaccounted wealth. When a fake currency note is detected by a bank officer, he is obliged to impound it, report it and give the same to the Reserve Bank of India, which is required to destroy the note. The Annual Report of the Reserve Bank of India for the year 2016‑2017 reported that only fake currency of the value of Rs.43.3 crore was detected in the nearly Rs.15.31 lakh crore of currency exchanged through the banking system, representing 0.0028 % of the total currency notes returned or exchanged through the banking system., He submitted that the Indian Express quoted a senior Directorate of Revenue Intelligence official who said that while fake currency seized before demonetisation was of low quality and easily identifiable, the quality of fake notes considerably improved post‑demonetisation, making it harder to identify. Thus the stated objective was false and demonetisation hopelessly failed to achieve the said objectives., He further submitted that the third objective was to arrest the use of fake currency for financing subversive activities such as drug trafficking and terrorism. New notes of denomination Rs.2,000 were found on the bodies of two terrorists killed in an encounter in Bandipora on 22 November 2016. Nearly 99.3 % of the demonetised notes were returned, whether they represented accounted or unaccounted wealth. To facilitate the exchange of money, several brokers sprang up, offering to exchange demonetised notes for a price, causing even honest people to turn dishonest to make some money., He submitted that, shortly after demonetisation, the Income Tax Department and the Directorate of Revenue Intelligence conducted searches and raids and seized alleged unaccounted wealth in the form of Rs.2,000 notes. All the stated objectives have utterly failed., He further submitted that the doctrine of proportionality has now been recognised in Indian jurisprudence. Applying the test of proportionality to the impugned act of demonetisation, he submitted that there was absolutely no justification to demonetise 86.4 % of the currency in circulation representing a value of Rs.15,44,000 crore that caused enormous damage to the economy and placed an intolerable and horrendous burden upon the people of the country, especially the poor. Before resorting to such a drastic step, the Central Board as well as the Central Government ought to have considered whether an alternative method could have been used to achieve the purpose of demonetisation. In this respect, he relied on the judgments of this Court in K.S. Puttaswamy (Retired) and another (Aadhaar) v. Union of India and another and Internet and Mobile Association of India v. Reserve Bank of India., He submitted that, while exercising the power of judicial review, it may not be permissible for the Supreme Court of India to examine the correctness of the decision, however, the Court can exercise its powers to examine the correctness of the decision‑making process. He submitted that the decision‑making process in the present case is totally flawed and that neither the Central Board while making the recommendation nor the Central Government while taking the decision have followed the procedure as prescribed in sub-section (2) of Section 26 of the RBI Act.
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In any case, the relevant factors required to be considered were ignored, and false factors were taken into consideration from the very inception and have subsequently been proved false. Accordingly, the Supreme Court of India is entitled to exercise its powers of judicial review and hold that the decision‑making process was not sustainable in law. Learned Senior Counsel relied on the judgments of the Supreme Court of India in Tata Cellular v. Union of India, Uttamrao Shivdas Jankar v. Ranjitsinh Vijaysinh Mohite Patil, Centre for Public Interest Litigation and Others v. Union of India and Others, Lt. General Manomoy Ganguly vs. Union of India and Others, and K.S. Puttaswamy (Retired) and Another (Aadhaar) (as cited above)., Learned Senior Counsel further submitted that, despite the passage of time, the Supreme Court of India has the power to grant declaratory relief, including declaring the true meaning and interpretation of various provisions of the Reserve Bank of India Act and to mould the relief accordingly. He relied on the judgments of the Supreme Court of India in Somaiya Organics (India) Ltd. and Another v. State of Uttar Pradesh and Another, Orissa Cement Ltd. v. State of Orissa and Others, and I.C. Golak Nath & Others v. State of Punjab & Another. He also submitted that the impugned notification violates Article 19(1)(g) of the Constitution of India. If the State contends that the restriction is reasonable and in the interest of the general public, the burden is on the respondents to establish the same, which they have failed to do. The Supreme Court of India, in Jayantilal Ratanchand Shah v. Reserve Bank of India and Others, held that currency notes are property. Therefore, depriving a person of his property by demonetisation would violate Article 300A of the Constitution of India., Shri Shyam Divan, learned Senior Counsel appearing on behalf of the applicant Malvinder Singh, submitted that, apart from the guarantee given by the Central Government that every bank note can be exchanged as legal tender anywhere in India, the Issue Department under Section 34 of the Reserve Bank of India Act is also liable to an amount equal to the total of the currency notes of the Government of India and bank notes then in circulation., Learned Senior Counsel submitted that the Honourable Prime Minister, in his speech on 8 November 2016, gave a categorical assurance that the rights and interests of honest, hard‑working people would be fully protected. A specific assurance was also given that if some persons were unable to deposit their old five‑hundred or one‑thousand rupee notes by 30 December 2016, they could go to specified offices of the Reserve Bank of India up to 31 March 2017 and deposit the notes after submitting a declaration form. The Press Note published on the same day, 8 November 2016, gave a similar assurance: for those unable to exchange or deposit their old high‑denomination bank notes before 30 December 2016, an opportunity would be provided at specified RBI offices on later dates with necessary documentation as may be specified by the Reserve Bank of India., Learned Senior Counsel submitted that the assurance was reiterated in the Reserve Bank of India notice dated 8 November 2016. Accordingly, the applicant’s case (petitioner in Writ Petition (Civil) No. 149 of 2017) stands on peculiar facts. Shri Divan stated that the applicant withdrew Rs 1,20,000/- from his account in Central Cooperative Bank, Sangrur, Punjab (Branch – Ghelan) on 3 December 2015 and combined it with his previous savings of Rs 42,000/‑ in cash, totaling Rs 1,62,000/- (60 notes of Rs 500 denomination and 132 notes of Rs 1,000 denomination). On 11 April 2016, he travelled to the United States to visit his son, leaving the cash at his home in India for a future knee operation. During their absence the house was locked and the money could not be deposited. After returning to India on 3 February 2017 and relying on the Prime Minister’s assurance, he made a representation to the Reserve Bank of India for exchange of the notes, which was not considered, prompting him to file Writ Petition (Civil) No. 149 of 2017. The Supreme Court of India, by order dated 3 November 2017, disposed of that writ petition and allowed him to file an application for intervention in Writ Petition (Civil) No. 906 of 2016 (Vivek Narayan Sharma v. Union of India), which was filed as Interlocutory Application No. 26757 of 2018 in Writ Petition (Civil) No. 906 of 2016., Shri Divan submitted that the proviso to the Notification dated 30 December 2016 issued by the Ministry of Finance, Department of Economic Affairs, Government of India, totally excludes persons like the applicant. He argued that, solely because of the number of days the applicant resided abroad, he was categorized as a non‑resident Indian and was therefore entitled to exchange currency notes only to the extent provided in the proviso. However, the applicant had not carried the cash while travelling abroad, so there was no requirement to make a declaration under clause (i) of sub‑section (1) of Section 4 of the 2016 Notification., Learned Senior Counsel further submitted that, in view of clause (ii) of sub‑section (1) of Section 4 of the 2017 Act, the Central Government is empowered to provide a grace period to such class of persons for reasons specified by notification. He submitted that this power is coupled with a duty, and when genuine cases arise, the Central Government is bound to exercise the power and provide a grace period to the applicant and persons like him., Shri Divan further submitted that the Reserve Bank of India circular dated 31 December 2016 is discriminatory, as resident Indians face no monetary limit for tender of high‑denomination bank notes, whereas non‑resident Indians (NRIs) are restricted to a maximum of Rs 25,000 per individual depending on when the notes were taken out of India, as per the relevant FEMA rules. An additional liability is imposed on NRIs to produce a certificate issued by Indian Customs on arrival through the Red Channel after 30 December 2016, indicating the import of high‑denomination bank notes with details and value thereof., Shri Divan relied on the article titled “Using Fast Frequency Household Survey Data to Estimate the Impact of Demonetisation on Employment” by Mr. Mahesh Vyas, Centre for Monitoring Indian Economy (2018), to submit that demonetisation led to a substantial reduction in employment, about 12 million jobs lower than during the two months preceding demonetisation, and over a four‑month period the impact reduced to a loss of about 3 million jobs. He also cited an Indian Express article dated 17 January 2017, based on a study by the All India Manufacturers Organisation (AIMO), which indicated that the manufacturing sector suffered considerable job loss post‑demonetisation., Learned Senior Counsel also submitted that, in the absence of a specific study on the effect of demonetisation on the Indian economy, the decision of the Central Government to demonetise about 86.4 % of the total currency in circulation must be held vitiated on account of manifest arbitrariness. He submitted that the impugned notification is liable to be set aside applying the test of proportionality. Applying the classical equality test, it must be held that the decision had no nexus to the objectives to be achieved. He relied on the Constitution Bench judgment of the Supreme Court of India in K.S. Puttaswamy (Retired) and Another (Aadhaar) (as cited above)., Shri Divan lastly submitted that the right to life includes the right to live with dignity. Relying on the Constitution Bench judgment of the Supreme Court of India in Maneka Gandhi v. Union of India, he submitted that the right to live with dignity also includes the right to travel abroad, especially to visit the petitioner’s son in the United States. Therefore, when the petitioner went to the United States during the period when the currency notes could have been exchanged, he would be deprived of his right under Article 21 of the Constitution of India if he is not now granted an opportunity to exchange the demonetised notes for new notes., Shri R. Venkataramani, learned Attorney General, submitted at the outset that the action taken by the impugned notification stands ratified by the 2017 Act. Consequently, with the executive action validated by Parliament, the challenge would not survive., The learned Attorney General submitted that the word “any” appearing before the words “series of bank notes” in sub‑section (2) of Section 26 of the Reserve Bank of India Act should be construed as “all”. He relied on the following judgments of the Supreme Court of India in support of this submission: (i) The Chief Inspector of Mines and Another v. Lala Karam Chand Thapar; (ii) Banwarilal Agarwal v. State of Bihar and Others; (iii) Tej Kiran Jain and Others v. N. Sanjiva Reddy and Others; (iv) Lucknow Development Authority v. M.K. Gupta; (v) K.P. Mohammed Salim v. Commissioner of Income Tax, Cochin; (vi) Raj Kumar Shivhare v. Assistant Director, Directorate of Enforcement and Another., The learned Attorney General submitted that the action under sub‑section (2) of Section 26 of the Reserve Bank of India Act cannot be construed in a narrow compass. Various factors, aspects, and challenging confrontations affecting the economic system and its stability must be given due weight while considering the validity of the action., The learned Attorney General submitted that comparing the action taken under sub‑section (2) of Section 26 of the Reserve Bank of India Act with the 1946 and 1978 legislations is totally misconceived. He stated that the 2017 Act not only addresses issues relating to cessation of legal tender under sub‑section (2) of Section 26, but also provides for exchange of bank notes to comply with Article 300A of the Constitution of India and extinguishes the liabilities of the Issue Department of the Reserve Bank of India under Section 34 of the Reserve Bank of India Act., The learned Attorney General submitted that if the construction advanced by the petitioners is accepted, the purpose of the provision would be frustrated. Relying on the judgment of the Supreme Court of India in C.I.T. v. S. Teja Singh, he stated that it is a settled principle that courts will strongly lean against a construction of a provision which renders it futile. He submitted that a bolder construction, based on the view that Parliament legislates only to achieve an effective result, should be accepted., The learned Attorney General submitted that the argument that the word “any” would not mean “all” is fallacious. If accepted, the Government could issue separate notifications for each series but would be prohibited from issuing a common notification for all series, leading to chaos and uncertainty., The learned Attorney General further submitted that the word “any” appears in two places in sub‑section (2) of Section 26 of the Reserve Bank of India Act. The word preceding “series of bank notes” must be construed to mean “all”, whereas the word preceding “denomination” may be construed as singular or otherwise. He relied on the judgment of the Supreme Court of India in Maharaj Singh v. State of Uttar Pradesh and Others in support of this submission., The learned Attorney General submitted that the alternative submission that, if the word “any” is not given a restricted meaning, sub‑section (2) of Section 26 of the Reserve Bank of India Act would be invalid on the ground of excessive delegation, is also without substance. He stated that the Reserve Bank of India is not like any other statutory body; it is a creature created with a mandate to operate independently of its creator. The guiding factors for exercise of power under sub‑section (2) of Section 26 must be found in Section 3 of the Reserve Bank of India Act and its preamble. Section 3 enacts the takeover of management and regulation of currency from the Central Government, and the preamble states that the Reserve Bank has been constituted to regulate the issue of bank notes. These provisions must be given the widest possible import; a narrower construction would defeat the purpose of the Act, and the word “regulate” would also include “prohibit”., The learned Attorney General, relying on the judgment of the Supreme Court of India in Municipal Corporation of Delhi v. Birla Cotton, Spinning and Weaving Mills, Delhi and Another, submitted that to determine whether the legislature has given guidance for the exercise of delegated powers, the court must consider the provisions of the specific Act, including its preamble. The preamble of the Reserve Bank of India Act read with Section 3 provides sufficient guidance to the Central Government for exercising its powers. While assessing whether the delegation is excessive, the nature of the body to which delegation is made is also a factor; in the present case, the delegation is to the Central Government and not to any subordinate office or department., The learned Attorney General submitted that the judgment of the Supreme Court of India in Harakchand Ratanchand Banthia and Others would not be applicable, as that case involved delegation to an Administrator, which was found to be excessively wide. Similarly, the judgment in Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and Another would not be applicable to the present facts., The learned Attorney General, in addition to reliance on Birla Cotton, Spinning and Weaving Mills Delhi, also relied on the following Supreme Court of India judgments: (i) Delhi Laws Act, In Re; (ii) M.P. High Court Bar Association v. Union of India and Others; (iii) Kerala State Electricity Board v. The Indian Aluminium Co. Ltd.; (iv) Ajoy Kumar Banerjee and Others v. Union of India and Others; (v) Gwalior Rayon Silk Manufacturing Co. Ltd. v. Assistant Commissioner of Sales Tax and Others; (vi) Ramesh Birch and Others v. Union of India and Others (1989 Supp. (1) SCC 430); (vii) M/s Gammon India Limited etc. v. Union of India & Others; (viii) Prabhudas Swami and Another v. State of Rajasthan and Others; (ix) Roger Mathew v. South Indian Bank Ltd. represented by its Chief Manager and Others; (x) Registrar of Co‑operative Societies, Trivandrum and Another v. K. Kunjabmu and Others; (xi) Darshan Lal Mehra and Others v. Union of India and Others., The learned Attorney General also relied on the judgments of the United States Supreme Court in Yakus v. United States and Federal Energy Administration v. Algonquin SNG, Inc. in support of his submission., Regarding the petitioners’ contention that the impugned action is susceptible to challenge on the ground of proportionality, the learned Attorney General submitted that reliance on the Supreme Court of India judgment in Internet and Mobile Association of India is wholly misconceived. He noted that paragraph 224 of that judgment must be read in the context of the case where the court considered the Reserve Bank of India's restriction on banks and financial institutions from providing services to entities engaged in crypto‑asset transactions. While the court held that the RBI has wide powers under the RBI Act, the Banking Regulation Act, 1949, and the Payment and Settlement Systems Act, 2007, it also found that, applying the test of proportionality, the action was not sustainable due to lack of demonstrable damage. The learned Attorney General submitted that the present action was taken after considering relevant factors and to address serious concerns such as terror financing, black money, and fake currency, and therefore the Internet and Mobile Association of India judgment is not applicable., The learned Attorney General, relying on the Supreme Court of India judgment in State of Tamil Nadu and Another v. National South Indian River Interlinking Agriculturist Association, submitted that in cases of non‑classificatory arbitrariness, the test of proportionality applies, whereas in cases of classificatory arbitrariness, the rational nexus test is the appropriate standard. He argued that the present case falls within the latter category, and the proportionality test is not applicable., Countering the petitioners’ argument that the power exercised under sub‑section (2) of Section 26 of the Reserve Bank of India Act was not exercised as provided and that the decision‑making process is flawed due to patent arbitrariness, the learned Attorney General submitted that, according to settled legal position, the contention is untenable. Sub‑section (2) provides that the Central Government may take a decision on the recommendation of the Central Board. In the present case, a recommendation by the Central Board for demonetisation was received, and the Central Government’s decision was taken after considering that recommendation. He further submitted that the Reserve Bank of India is not only an expert body but a special institution charged with conceiving and implementing economic and monetary policy, and there cannot be a strait‑jacket formula in the discharge of its duty. It is settled law that the Supreme Court of India should not interfere with the opinion of experts. He relied on the judgments of the Supreme Court of India in Rajbir Singh Dalal (Dr.) v. Chaudhary Devi Lal University, Sirsa and Another, and Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Others., Relying on the Supreme Court of India judgment in Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Limited and Another, the learned Attorney General submitted that economic and fiscal regulatory measures are a field where judges should proceed very warily, as they are not experts in these matters., The learned Attorney General submitted that the recommendation of the Reserve Bank of India and the decision of the Central Government were taken after considering that fake currency notes of high denomination were largely in circulation, making it difficult to identify genuine notes, and to address three serious problems: fake currency notes, storage of unaccounted wealth, and terror financing. The material concerning these factors cannot be considered overnight. The 2012 White Paper on Black Money highlights the complexity of the problem. Information and data gathered from various government agencies were taken into consideration. Both the Reserve Bank of India and the Central Government acted in coordination. The discussions on the issue took place over a long period, and after considering all aspects, the RBI recommended demonetisation and the Central Government decided to demonetise., The learned Attorney General further submitted that the petitioners’ contention that demonetisation has utterly failed to achieve its objectives is without substance. He stated that the repercussions of the action can be best understood by looking at the overall benefits, both direct and indirect. Direct benefits include: (i) significant reduction in fake currency; (ii) significant increase in the number of taxpayers; (iii) 25 % growth in filing income‑tax returns; (iv) significant increase in returns filed by corporate taxpayers; (v) substantial growth in new PAN numbers., The learned Attorney General submitted that while self‑assessment tax was Rs 55,000 crore in 2015‑16 and Rs 68,000 crore in 2016‑17, it jumped to Rs 1,00,000 crore in 2017‑18. As a direct benefit of demonetisation, the volume of Unified Payments Interface (UPI) transactions rose from 1.06 crore in 2016‑17 to 90.5 crore in 2017‑18 and further to about 5,000 crore in 2021‑22. The value of UPI transactions grew 1,210 times in 2021‑22 compared with 2016‑17. Real GDP growth in 2017‑18 was higher than the average annual growth of 6.6 % in the decade 2010‑11 to 2019‑20., The learned Attorney General further submitted that there have also been various indirect benefits. Action against domestic black money resulted in undisclosed income of Rs 82,168 crore. Surveys conducted in 63,691 cases led to undisclosed income of Rs 84,396 crore being deducted. Employees’ Provident Fund Organisation enrolment saw an increase of 1.1 crore new enrolments, and Employees’ State Insurance Corporation registrations increased by 55 %. He concluded that, when the effect of the impugned action is considered in a larger perspective, several direct and indirect benefits of demonetisation become evident., The learned Attorney General submitted that the fact that demonetisation was effected by enactments of Parliament in 1946 and 1978 cannot be a ground to hold that the Central Government lacks power under sub‑section (2) of Section 26 of the Reserve Bank of India Act. He stated that the argument does not hold water, as the impugned notification is wholly ratified by the 2017 Act. Once executive action is ratified by Parliament, the contention that Parliament’s earlier choices preclude the Central Government from acting under the present notification is contradictory., The learned Attorney General submitted that a perusal of the parliamentary debates while enacting the 1978 Act would show that, although the Act demonetised only high‑denomination bank notes of Rs 1,000, Rs 5,000, and Rs 10,000, Members of Parliament advocated for demonetisation of even the Rs 100 bank notes., The learned Attorney General submitted that the provisions of the 1978 Act have been found constitutional by the Constitution Bench judgment of the Supreme Court of India in Jayantilal Ratanchand Shah. For the reasoning adopted in that case, the impugned notification, now ratified by the 2017 Act, also deserves to be upheld., In response to the petitioners’ submission that, to address genuine difficulties of persons unable to deposit demonetised notes within the limited period, a window should be opened for a limited time, the learned Attorney General submitted that permitting such a window would amount to devising a norm that would alter the essential character of the enactment. It is difficult to ascertain the genuineness of the money; such a request would rely on declarations whose veracity cannot be verified, providing a loophole for non‑genuine note holders to channel unaccounted money. Incidentally, law‑enforcing agencies are still recovering significant amounts of high‑denomination bank notes from individuals., The learned Attorney General further submitted that, as of now, Rs 10,719 crore of high‑denomination bank notes are still in circulation. Under clause (i) of sub‑section (1) of Section 4 of the 2017 Act, 77,748 applications involving an amount of Rs 284.25 crore were received from resident and non‑resident Indians by the five designated Regional Offices of the Reserve Bank of India during the grace period. Of these, 57,405 cases (74 % of total applications) amounting to Rs 221.95 crore (78 % of the total amount) have been accepted and the amounts credited to the applicants’ KYC‑compliant bank accounts.
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It is submitted that out of the total cases, 20,343 cases were rejected due to various reasons. The learned Attorney General submits that it will not be permissible for the Supreme Court of India to devise a norm which would result in altering the essential character of the enactment. In support of this submission, he relies on the judgment of United States Supreme Court in the case of Metropolis Theater Company et al v. City of Chicago and Ernest J. Magerstadt. The learned Attorney General lastly submits that the Supreme Court of India must not proceed for a formal judgment when it cannot grant any effectual relief. In this respect, he relies on the judgments of United States Supreme Court in the cases of North Carolina v. Wayne Claude Rice and Mills v. Green and the judgment of the Court of Appeal of New York in the case of People ex rel. Kingsland v. Clark., Taking the line further, the learned Attorney General submits that it is also a settled proposition of law that the Supreme Court of India should not decide academic questions. In this respect, he relies on the judgment of this Court in the cases of Shrimanth Balasaheb Patil v. Speaker, Karnataka Legislative Assembly, Central Areca Nut & Cocoa Marketing & Processing Cooperative Ltd. v. State of Karnataka and others, and R.S. Nayak v. A.R. Antulay., Shri Jaideep Gupta, learned Senior Counsel appearing on behalf of the Reserve Bank of India, would submit that the contention of the petitioners that the power under sub‑section (2) of Section 26 of the Reserve Bank of India Act is un‑canalised, unguided and arbitrary is without any basis. He submits that sub‑section (2) of Section 26 of the Reserve Bank of India Act itself provides that the power of the Central Government has to be exercised on the recommendation of the Central Board. It is, therefore, submitted that there is an in‑built safeguard in the provision itself., Relying on the judgment of this Court in the case of Peerless General Finance and Investment Co. Limited and another v. Reserve Bank of India, it is submitted that the Reserve Bank of India, which is a bankers' bank, has a large contingent of experts to render advice relating to matters affecting the economy of the entire country. It is submitted that the Reserve Bank of India plays an important role in the economy and financial affairs of India and one of its important functions is to regulate the banking system in the country. It is submitted that the recommendation of the Central Board is based upon the advice of the experts that the Reserve Bank of India has in its contingent. Shri Gupta also relies on the judgment of the Constitution Bench of this Court in the case of Joseph Kuruvilla Velukunnel v. Reserve Bank of India and others in support of this submission., Shri Gupta further submitted that the contention that the decision‑making process is faulty on account of not following the procedure under sub‑section (2) of Section 26 of the Reserve Bank of India Act is also without substance. The learned Senior Counsel submits that the procedure under sub‑section (2) of Section 26 of the Reserve Bank of India Act contemplates two things i.e. recommendation of the Central Board and the decision by the Central Government. It is submitted that both these requirements stand fully satisfied in the present case. He submits that though it is the contention of the petitioners that the procedure is flawed, the petition itself is bereft of such averments. Shri Gupta submits that the Constitution Bench of this Court in the case of Ram Kishore Sen and others v. Union of India and others has held that the burden of proof primarily lies on a person who complains that the procedure prescribed has not been followed. In any case, he submits that in both the affidavits filed on behalf of the Reserve Bank of India i.e. the counter‑affidavit dated 19 December 2018 filed by Haokholal, Assistant General Manager and the additional affidavit dated 15 November 2022 of Shri Kuntal Kaim, Deputy General Manager, it has been specifically averred that the procedure as prescribed under sub‑section (2) of Section 26 of the Reserve Bank of India Act read with Regulation 8 of the 1949 Regulations was duly followed. He submits that the quorum as prescribed under the 1949 Regulations was very much available when the meeting of the Central Board was held on 8 November 2016. In any case, it is submitted that in view of sub‑section (5) of Section 8 of the Reserve Bank of India Act, a decision of the Board cannot be questioned merely on the ground of existence of any vacancy or any defect in the constitution of the Board. The learned Senior Counsel has placed on record an additional affidavit dated 6 December 2022 reiterating the statements made in the aforesaid two affidavits dated 19 December 2018 and 15 November 2022., Relying on the judgment of this Court in the case of Internet and Mobile Association of India, Shri Gupta submits that to consider the question of proportionality, a four‑pronged test, as set out in the judgment of this Court in the case of Modern Dental College and Research Centre and Others v. State of Madhya Pradesh and Others, is required to be applied. It is submitted that since the measure is designated for the purpose of dealing with fake currency, black money and terror funding, the first test stands satisfied. The measure, i.e. demonetisation, has a reasonable nexus for the fulfillment of the purpose of the aforesaid three objectives and, as such, the second test is also fulfilled. Insofar as the third test is concerned, it is submitted that it is a matter of economic policy as to what measure is found to be appropriate for achieving the objective of dealing with the menace of the three evils. It is submitted that it is for the experts in the economic and monetary fields to take a decision in that regard and, as such, the third test, as to whether there was no alternative less invasive measure, would not be applicable to a decision pertaining to economic policy. Insofar as the fourth test is concerned, it is submitted that, as a matter of fact, there has been no infringement of the rights of the citizens. As a matter of fact, no currency is being taken away. Full value of the legitimate currency has been exchanged. It is submitted that non‑cash transactions such as credit card, debit card, online transaction, etc. were permitted even during the period between 8 November 2016 and 31 December 2016. In any case, it is submitted that immediately after the demonetisation was notified, in spite of the enormity of operations, immediate steps were taken for the betterment of the public and to ensure adequate cash supply. It is submitted that various measures were taken in order to alleviate the genuine grievances of the citizens, which have been enumerated in paragraphs 11 to 17 of the affidavit dated 19 December 2018 filed on behalf of the Reserve Bank of India. It is, therefore, submitted that the proportionality test would not be applicable in the present case., Shri Gupta, relying on the judgment of this Court in the case of Small Scale Industrial Manufacturers Association (Registered) v. Union of India and others, submits that normally it is not within the domain of any court to weigh the pros and cons of the policy or to scrutinise it except only when it is found to be arbitrary and violative of any constitutional or statutory provisions of law., Shri Gupta further submits that a similar provision providing for a specified time for exchange of notes has already been found to be valid by the Constitution Bench of this Court in the case of Jayantilal Ratanchand Shah. He submits that the time provided in the present case is almost similar to the time provided under the 1978 Act. The said period has been found to be reasonable having regard to the purpose sought to be achieved by the said Act. It is, therefore, submitted that the challenge that the period provided was not sufficient is without any substance. It is submitted that everybody had sufficient opportunity either to deposit the notes in their banks or to exchange the same. He further submits that it was not necessary even for the individuals to go to banks to exchange notes and on the prescribed procedure being followed, an authorized representative could also exchange the notes on their behalf., Shri Gupta further submitted that the provisions of subsection (2) of Section 4 of the 2017 Act cannot be read in isolation. He submits that if it is read in isolation, it will lead to an anomalous situation where the Reserve Bank of India has an independent power to act in violation of the provisions of Section 3 and subsection (1) of Section 4 of the 2017 Act. He submits that Section 3 and subsections (1) and (2) of Section 4 of the 2017 Act will have to be read together to hold that the power available to the Reserve Bank of India under subsection (2) of Section 4 of the 2017 Act is with regard to the grace period as provided under subsection (1) of Section 4 of the 2017 Act. It is submitted that the power vested in the Central Government under clause (ii) of subsection (1) of Section 4 of the 2017 Act is to provide grace period to such class of persons and for such reasons as may be specified by notification. However, such power has not been exercised by the Central Government and, therefore, it cannot be construed that the Reserve Bank of India will have an independent power in this regard., Shri Gupta reiterated the submission made by the learned Attorney General that since the relief sought in the petitions cannot be granted, no declaration as sought should be granted by the Supreme Court of India. In this respect, he relies on the judgment of this Court in the case of Bholanath Mukherjee and others v. Ramakrishna Mission Vivekananda Centenary College and others., Shri P. Chidambaram, learned Senior Counsel, in rejoinder, almost reiterated his earlier submissions. He submitted that there are two methods of demonetisation of currency, one is by legislative method and the other under sub‑section (2) of Section 26 of the Reserve Bank of India Act. He reiterated that the word any will always have to be read in the context of the provisions and if read in that manner, the only meaning that can be given to the word any in sub‑section (2) of Section 26 of the Reserve Bank of India Act is some. In this respect, he relies on the judgment of this Court in the case of Union of India v. A.B. Shah and others., Shri Chidambaram further submitted that from the perusal of the affidavit filed on behalf of the Central Government as well as the Reserve Bank of India, it is clear that the procedure emanated from the Central Government, which was through the advice given by the Government to the Reserve Bank of India in its communication dated 7 November 2016. The affidavit would clearly show that the Reserve Bank of India acted on the advice of the Central Government and gave its recommendation in a mechanical manner. He reiterated that, as per sub‑section (2) of Section 26 of the Reserve Bank of India Act, the proposal has to emanate from the Reserve Bank of India and not from the Central Government. It is reiterated that the procedure is in total breach of sub‑section (2) of Section 26 of the Reserve Bank of India Act., Shri Chidambaram submits that unless the documents, to which he had already referred in his arguments while opening the case, are placed for perusal of the Supreme Court of India, the Court cannot come to a satisfaction about the correctness of the decision‑making process. Relying on the judgment of this Court in the case of R.K. Jain v. Union of India, he submits that unless the respondents plead privilege and the issue is decided, the respondent cannot withhold the said documents, at least from this Court., Relying on an excerpt from *Forks in the Road: My Days at RBI and Beyond*, a book by former Reserve Bank of India Governor C. Rangarajan, Shri Chidambaram submits that demonetisation has nothing to do with monetary policy. Emphasising the judgment of this Court in the case of Internet and Mobile Association of India, the learned Senior Counsel submits that the proportionality test will have to be satisfied in the present case. It is submitted that the 2017 Act does not validate the action taken under the impugned Notification. It only extinguishes the liabilities of the Issue Department of the Reserve Bank of India. The learned Senior Counsel, therefore, submits that this is a fit case wherein the Supreme Court of India should decide the scope of subsection (2) of Section 26 of the Reserve Bank of India Act and declare that the exercise of power by the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act was not valid in law. In this respect, he relies on the judgment of this Court in the case of S.R. Bommai and others v. Union of India and others., Shri Shyam Divan, learned Senior Counsel, in rejoinder, submits that the perusal of subsection (1) of Section 26 of the Reserve Bank of India Act would reveal that, though the tendering of any series of bank notes of any denomination ceases to be legal tender under subsection (2) of Section 26 of the Reserve Bank of India Act, the guarantee of the Central Government continues to exist. It is submitted that it would be clear from the provisions contained in the 2016 Ordinance, which became the 2017 Act, that Section 3 of the 2017 Act provides that the SBNs which have ceased to be legal tender in view of the impugned notification shall cease to be liabilities of the Reserve Bank of India under Section 34 of the Reserve Bank of India Act and shall cease to have the guarantee of the Central Government under subsection (1) of Section 26 of the said Act. It is submitted that this is also clear from the affidavit dated 16 November 2022 filed on behalf of the Union of India., Shri Divan further submitted that the 2017 Act can neither be construed to validate the impugned notification nor can it be held that it is a piece of incorporation by reference. It is submitted that the argument with regard to the impugned notification having merged in the 2017 Act is also without substance. The learned Senior Counsel submits that it is simply a plenary parliamentary declaration., Taking further his argument, Shri Divan submits that clause (i) of subsection (1) of Section 4 of the 2017 Act gives a power to the Central Government which is coupled with a duty. It is submitted that genuine cases like that of the applicants/petitioners viz., Malvinder Singh and Sarla Shrivastav, who is the applicant/petitioner in I.A. No. 152009 of 2022, should be given some window to exchange the SBNs. It is submitted that there is a large section of NRIs who, during the period between 8 November 2016 and 30 December 2016, were not in India. It is submitted that they could have also not travelled to India since either the tickets were not available or the rates were prohibitively expensive., Shri Divan, in the alternative, submitted that the proviso to the Notification dated 30 December 2016 has to be read in a manner that it is silent on NRIs who have kept their money in India. It is submitted that exclusion of NRIs who have left their money in India would be manifestly arbitrary and in order to save the proviso, it will have to be read in the manner making it inapplicable to such NRIs who had kept their money in India while residing abroad during that period., Though nine important questions have been framed by the Bench of learned three Judges vide order dated 16 December 2016 in Writ Petition (Civil) No. 906 of 2016, upon hearing the submissions advanced before us on behalf of the petitioners as well as the respondents, we find that only the following questions of law arise for consideration. As such, the questions are reframed as under: (i) Whether the power available to the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act can be restricted to mean that it can be exercised only for one or some series of bank notes and not all series in view of the word any appearing before the word series in the said sub‑section, specifically so, when on earlier two occasions, the demonetisation exercise was done through the plenary legislations? (ii) In the event it is held that the power under sub‑section (2) of Section 26 of the Reserve Bank of India Act is construed to mean that it can be exercised in respect of all series of bank notes, whether the power vested with the Central Government under the said sub‑section would amount to excessive delegation and as such, liable to be struck down? (iii) As to whether the impugned Notification dated 8 November 2016 is liable to be struck down on the ground that the decision‑making process is flawed in law? (iv) As to whether the impugned notification dated 8 November 2016 is liable to be struck down applying the test of proportionality? (v) As to whether the period provided for exchange of notes vide the impugned notification dated 8 November 2016 can be said to be unreasonable? (vi) As to whether the Reserve Bank of India has an independent power under sub‑section (2) of Section 4 of the 2017 Act in isolation of provisions of Section 3 and Section 4(1) thereof to accept the demonetised notes beyond the period specified in notifications issued under sub‑section (1) of Section 4?, Before we proceed to consider the various issues reframed by us, we find it appropriate to refer to the scheme of the Reserve Bank of India Act., The preamble of the Reserve Bank of India Act would itself reveal that the Act was enacted since it was found expedient to constitute a Reserve Bank of India to regulate the issue of bank notes and for the keeping of reserves with a view to securing monetary stability in India and generally to operate the currency and credit system of the country to its advantage. The preamble would also show that it was amended in the year 2016 with effect from 27 June 2016 by Act No. 28 of 2016. Post amendment, it was stated in the preamble that, whereas it was essential to have a modern monetary policy framework to meet the challenge of an increasingly complex economy, and whereas the primary objective of the monetary policy is to maintain price stability while keeping in mind the objective of growth and whereas the monetary policy framework in India shall be operated by the Reserve Bank of India, the Reserve Bank of India Act was enacted., Section 3 of the Reserve Bank of India Act would reveal that the Reserve Bank of India was constituted for the purposes of taking over the management of the currency from the Central Government and of carrying on the business of banking in accordance with the provisions of the Act., Section 8 of the Reserve Bank of India Act deals with composition of the Central Board and term of office of the Directors. It will be relevant to refer to subsections (1) and (5) of Section 8, which read thus: 8. Composition of the Central Board, and term of office of Directors. (1) The Central Board shall consist of the following Directors, namely: (a) a Governor and not more than four Deputy Governors to be appointed by the Central Government; (b) four Directors to be nominated by the Central Government, one from each of the four Local Boards as constituted by section 9; (c) ten Directors to be nominated by the Central Government; and (d) two Government officials to be nominated by the Central Government. (5) No act or proceeding of the Board shall be questioned on the ground merely of the existence of any vacancy in, or any defect in the constitution of, the Board., Section 17 of the Reserve Bank of India Act would reveal that the Reserve Bank of India has been authorised to carry on and transact several kinds of business specified therein., Section 22 of the Reserve Bank of India Act would reveal that the Reserve Bank of India shall have the sole right to issue bank notes in India and may, for a period which shall be fixed by the Central Government on the recommendation of the Central Board, issue currency notes of the Government of India supplied to it by the Central Government. It further provides that the provisions of the Act applicable to bank notes shall, unless a contrary intention appears, apply to all currency notes of the Government of India issued either by the Central Government or by the Reserve Bank of India in like manner as if such currency notes were bank notes. Sub‑section (2) of Section 22 specifically provides that on and from the date on which Chapter III of the Act comes into force, the Central Government shall not issue any currency notes., Section 23 of the Reserve Bank of India Act would reveal that the issue of bank notes shall be conducted by the Reserve Bank of India through an Issue Department which shall be separated and kept wholly distinct from the Banking Department, and the assets of the Issue Department shall not be subject to any liability other than the liabilities of the Issue Department as defined in Section 34. Sub‑section (2) of Section 23 provides that the Issue Department shall not issue bank notes to the Banking Department or to any other person except in exchange for other bank notes or for such coin, bullion or securities as are permitted by the Act to form part of the Reserve., Sub‑section (1) of Section 24 of the Reserve Bank of India Act provides that, subject to the provisions of sub‑section (2), bank notes shall be of the denominational values to two rupees, five rupees, ten rupees, twenty rupees, fifty rupees, one hundred rupees, five hundred rupees, one thousand rupees, five thousand rupees and ten thousand rupees or of such other denominational values, not exceeding ten thousand rupees as the Central Government may, on the recommendation of the Central Board, specify in this behalf. Sub‑section (2) of Section 24 provides that the Central Government may, on the recommendation of the Central Board, direct the non‑issue or the discontinuance of issue of bank notes of such denominational values as it may specify in this behalf., Section 25 of the Reserve Bank of India Act provides that the design, form and the material of bank notes shall be such as may be approved by the Central Government after consideration of the recommendations made by the Central Board., Section 26 of the Reserve Bank of India Act is the provision which directly falls for consideration. It reads thus: 26. Legal tender character of notes. (1) Subject to the provisions of sub‑section (2), every bank note shall be legal tender at any place in India in payment, or on account for the amount expressed therein, and shall be guaranteed by the Central Government. (2) On recommendation of the Central Board the Central Government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender save at such office or agency of the Bank and to such extent as may be specified in the notification., It can thus be seen that sub‑section (1) of Section 26 of the Reserve Bank of India Act provides that, subject to the provisions of sub‑section (2), every bank note shall be legal tender at any place in India in payment, or on account for the amount expressed therein, and shall be guaranteed by the Central Government. Sub‑section (2) of Section 26 provides that on recommendation of the Central Board, the Central Government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender save at such office or agency of the Bank and to such extent as specified in the notification., Section 34 of the Reserve Bank of India Act provides that the liabilities of the Issue Department of the Reserve Bank of India shall be an amount equal to the total of the amount of the currency notes of the Government of India and bank notes for the time being in circulation., Perusal of the aforesaid provisions of the Reserve Bank of India Act would reveal that insofar as monetary policy and specifically with regard to the matters of management and regulation of currency are concerned, the Reserve Bank of India plays a pivotal role. As a matter of fact, both the sides are ad idem on the said issue., The importance of the role assigned to the Reserve Bank of India in such matters would be amplified from the various judgments of the Supreme Court of India, which we will refer to in the paragraphs to follow. In this background, we will consider the issues that fall for our consideration., It is strenuously urged by the learned Senior Counsel appearing on behalf of the petitioners that the word any used in sub‑section (2) of Section 26 of the Reserve Bank of India Act will have to be given a restricted meaning to mean some. It is submitted that if sub‑section (2) of the Act is not read in such manner, the very power available under the said sub‑section will have to be held to be invalid on the ground of excessive delegation. It is submitted that it cannot be construed that the legislature intended to bestow un‑canalised, unguided and arbitrary power to the Central Government to demonetise the entire currency. It is, therefore, the submission of the petitioners that in order to save the said Section from being declared void, the word any requires to be interpreted in a restricted manner to mean some., Per contra, it is submitted on behalf of the respondents that the word any under sub‑section (2) of Section 26 of the Reserve Bank of India Act cannot be interpreted in a narrow manner and it will have to be construed to include all., A Constitution Bench of the Supreme Court of India in the case of The Chief Inspector of Mines and another v. Lala Karam Chand Thapar etc. was considering the question as to whether the phrase any one of the directors as found in Section 76 of the Mines Act, 1952 could mean only one of the directors or could it be construed to mean every one of the directors. In the said case, all the directors of the Company were prosecuted for the offences punishable under Sections 73 and 74 of the Mines Act, 1952. The High Court had held that any one of the directors of the Company could only be prosecuted. The Constitution Bench observed: It is quite clear and indeed not disputed that in some contexts, any one means one only ..., It is quite clear and indeed not disputed that in some contexts, any one means one only; it matters not which one. The phrase any of the directors is therefore quite capable of meaning only one of the directors, it does not matter which one. Is the phrase however capable of no other meaning? If it is not, the courts cannot look further, and must interpret these words in that meaning only, irrespective of what the intention of the legislature might be believed to have been. If however the phrase is capable of another meaning, as suggested, viz., every one of the directors, it will be necessary to decide which of the two meanings was intended by the legislature. If one examines the use of the words any one in common conversation or literature, there can be no doubt that they are not infrequently used to mean every one, not one, but all. Thus we say of any one can see that this is wrong, to mean everyone can see that this is wrong. Any one may enter does not mean that only one person may enter, but that all may enter.
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But, argues Mr Pathak, granting that this is so, it must be held that when the phrase any one is used with the preposition of, followed by a word denoting a number of persons, it never means every one. The extract from the Oxford Dictionary, it is interesting to notice, speaks of an assertion concerning a being or thing of the sort named; it is not unreasonable to say that, the word of followed by a word denoting a number of persons or things is just such naming of a sort as mentioned there. Suppose, the illustration I challenge any one to contradict my assertions was changed to I challenge any one of my opponents to contradict my assertion. Any one of my opponents here would mean all my opponents not one only of the opponents. While the phrase any one of them or any similar phrase consisting of any one, followed by of which is followed in its turn by words denoting a number of persons or things, does not appear to have fallen for judicial construction, in our courts or in England the phrase any of the present directors had to be interpreted in an old English case, Isle of Wight Railway Co. v. Tahourdin [25 Chancery Division 320]. A number of shareholders required the directors to call a meeting of the company for two objects. One of the objects was mentioned as To remove, if deemed necessary or expedient any of the present directors, and to elect directors to fill any vacancy on the Board. The directors issued a notice to convene a meeting for the other object and held the meeting. Then the shareholders, under the Companies Clauses Act, 1845, issued a notice of their own convening a meeting for both the objects in the original requisition. In an action by the directors to restrain the requisitionists from holding the meeting, the Court of Appeal held that a notice to remove any of the present directors would justify a resolution for removing all who are directors at the present time. Any, Lord Cotton, L.J. pointed out, would involve all. It is true that the language there was any of the present directors and not any one of the present directors and it is urged that the word one, in the latter phrase makes all the difference. We think it will be wrong to put too much emphasis on the word one here. It may be pointed out in this connection that the Permanent Edition of Words and Phrases mentions an American case Front & Hintingdon Building & Loan Association v. Berzinski where the words any of them were held to be the equivalent of any one of them. After giving the matter full and anxious consideration, we have come to the conclusion that the words any one of the directors is ambiguous; in some contexts, it means only one of the directors, does not matter which one, but in other contexts, it is capable of meaning every one of the directors. Which of these two meanings was intended by the legislature in any particular statutory phrase has to be decided by the courts on a consideration of the context in which the words appear, and in particular, the scheme and object of the legislation., The Constitution Bench found that the words any one has been commonly used to mean every one i.e. not one, but all. It found that the word any, in affirmative sentences, asserts, concerning a being or thing of the sort named, without limitation. It held that it is abundantly clear that the word any one is not infrequently used to mean every one., It could be seen that the Constitution Bench, after giving the matter full and anxious consideration, came to the conclusion that the words any one of the directors was an ambiguous one. It held that in some contexts, it means only one of the directors, does not matter which one, but in other contexts, it is capable of meaning every one of the directors. It held that which of these two meanings was intended by the legislature in any particular statutory phrase has to be decided by the courts on consideration of the context in which the words appear, and in particular, the scheme and object of the legislation., After examining the scheme of the Mines Act, 1952, the Constitution Bench of this Supreme Court of India further observed thus: But, argues Mr Pathak, one must not forget the special rule of interpretation for penal statutes that if the language is ambiguous, the interpretation in favour of the accused should ordinarily be adopted. If you interpret any one in the sense suggested by him, the legislation he suggests is void and so the accused escapes. One of the two possible constructions, thus being in favour of the accused, should therefore be adopted. In our opinion, there is no substance in this contention. The rule of strict interpretation of penal statutes in favour of the accused is not of universal application, and must be considered along with other well established rules of interpretation. We have already seen that the scheme and object of the statute makes it reasonable to think that the legislature intended to subject all the directors of a company owning coal mines to prosecution and penalties, and not one only of the directors. In the face of these considerations there is no scope here of the application of the rule for strict interpretation of penal statutes in favour of the accused. The High Court appears to have been greatly impressed by the fact that in other statutes where the legislature wanted to make every one out of a group or a class of persons liable it used clear language expressing the intention; and that the phrase any one has not been used in any other statute in this country to express every one. It will be unreasonable, in our opinion, to attach too much weight to this circumstance; and as for the reasons mentioned above, we think the phrase any one of the directors is capable of meaning every one of the directors, the fact that in other statutes, different words were used to express a similar meaning is not of any significance. We have, on all these considerations, come to the conclusion that the words any one of the directors has been used in Section 76 to mean every one of the directors, and that the contrary interpretation given by the High Court is not correct., It could thus be seen that though it was sought to be argued before the Supreme Court of India that since the rule of strict interpretation of penal statutes in favour of the accused has to be adopted and that the word any was suffixed by the word one, it has to be given restricted meaning; the Court came to the conclusion that the words any one of the directors used in Section 76 of the Mines Act, 1952 would mean every one of the directors. It is further to be noted that the word any in the said case was suffixed by the word one, still the Court held that the words any one would mean all and not one. It is to be noted that in the present case, the legislature has not employed the word one after the word any. It is settled law that it has to be construed that every single word employed or not employed by the legislature has a purpose behind it., On the very date on which the judgment in the case of The Chief Inspector of Mines and another v. Lala Karam Chand Thapar etc. (supra) was pronounced, the same Constitution Bench also pronounced the judgment in the case of Banwarilal Agarawalla (supra), wherein the Constitution Bench observed thus: The first contention is based on an assumption that the word any one in Section 76 means only one of the directors, and only one of the shareholders. This question as regards the interpretation of the word any one in Section 76 was raised in Criminal Appeals Nos. 98 to 106 of 1959 (Chief Inspector of Mines, etc.) and it has been decided there that the word any one should be interpreted there as every one. Thus under Section 76 every one of the shareholders of a private company owning the mine, and every one of the directors of a public company owning the mine is liable to prosecution. No question of violation of Article 14 therefore arises., Another Constitution Bench of this Supreme Court of India in the case of Tej Kiran Jain and others (supra) was considering the provisions of Article 105 of the Constitution of India and, particularly, the immunity as available to the Member of Parliament in respect of anything said in Parliament. The Constitution Bench observed thus: In our judgment it is not possible to read the provisions of the article in the way suggested. The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of anything said in Parliament. The word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament which means during the sitting of Parliament and in the course of the business of Parliament. We are concerned only with speeches in Lok Sabha. Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court. This immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The Courts have no say in the matter and should really have none., This Supreme Court of India held that the word anything is of the widest import and is equivalent to everything. The only limitation arises from the words in Parliament which means during the sitting of Parliament and in the course of the business of Parliament. It held that, once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any Court., This Supreme Court of India, in the case of Lucknow Development Authority (supra), was considering clause (o) of Section (2) of the Consumer Protection Act, 1986 which defines service, wherein the word any again fell for consideration. This Court observed thus: The words any and potential are significant. Both are of wide amplitude. The word any dictionaryily means one or some or all. In Black's Law Dictionary it is explained thus, word any has a diversity of meaning and may be employed to indicate all or every as well as some or one and its meaning in a given statute depends upon the context and the subject‑matter of the statute. The use of the word any in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all., This Supreme Court of India held that the word any is of wide amplitude. It means one or some or all. Referring to Black's Law Dictionary, the Court observed that the word any has a diversity of meaning and may be employed to indicate all or every as well as some or one. However, the meaning which is to be given to it would depend upon the context and the subject‑matter of the statute., In the case of K.P. Mohammed Salim (supra), this Supreme Court of India was considering the power of the Director General or Chief Commissioner or Commissioner to transfer any case from one or more assessing officers subordinate to him to any other assessing officer or assessing officers. This Court observed thus: The word any must be read in the context of the statute and for the said purpose, it may in a situation of this nature, mean all. The principles of purposive construction for the said purpose may be resorted to. (See New India Assurance Co. Ltd. v. Nusli Neville Wadia [(2008) 3 SCC 279 : (2007) 13 SCR 598]) Thus, in the context of a statute, the word any may be read as all in the context of the Income Tax Act for which the power of transfer has been conferred upon the authorities specified under Section 127., The Court again reiterated that the word any must be read in the context of the statute. The Court also applied the principles of purposive construction to the term any to mean all., In the case of Raj Kumar Shivhare (supra), an argument was sought to be advanced that since Section 35 of the Foreign Exchange Management Act, 1999 uses the words any decision or order, only appeals from final order could be filed. Rejecting the said contention, this Supreme Court of India observed thus: The word any in this context would mean all. We are of this opinion in view of the fact that this section confers a right of appeal on any person aggrieved. A right of appeal, it is well settled, is a creature of statute. It is never an inherent right, like that of filing a suit. A right of filing a suit, unless it is barred by statute, as it is barred here under Section 34 of FEMA, is an inherent right (see Section 9 of the Civil Procedure Code) but a right of appeal is always conferred by a statute. While conferring such right a statute may impose restrictions, like limitation or pre‑deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. Whenever such limitations are imposed, they are to be strictly followed. But in a case where there is no limitation on the nature of order or decision to be appealed against, as in this case, the right of appeal cannot be further curtailed by this Court on the basis of an interpretative exercise. Under Section 35 of FEMA, the legislature has conferred a right of appeal to a person aggrieved from any order or decision of the Appellate Tribunal. Of course such appeal will have to be on a question of law. In this context the word any would mean all. In the instant case also when a right is conferred on a person aggrieved to file appeal from any order or decision of the Tribunal, there is no reason, in the absence of a contrary statutory intent, to give it a restricted meaning. Therefore, in our judgment in Section 35 of FEMA, any order or decision of the Appellate Tribunal would mean all decisions or orders of the Appellate Tribunal and all such decisions or orders are, subject to limitation, appealable to the High Court on a question of law., While holding that the word any in the context would mean all, this Supreme Court of India observed that a right of appeal is always conferred by a statute. It has been held that, while conferring such right, a statute may impose restrictions, like limitation or pre‑deposit of penalty or it may limit the area of appeal to questions of law or sometime to substantial questions of law. It has been held that whenever such limitations are imposed, they are to be strictly followed. It has been held that in a case where there is no limitation, the right of appeal cannot be curtailed by this Court on the basis of an interpretative exercise., Shri P. Chidambaram, learned Senior Counsel relied on the judgment of this Supreme Court of India in the case of Union of India v. A.B. Shah and others (supra). In the said case, the High Court was considering an appeal preferred by the Union of India wherein it had challenged the acquittal of the accused by the learned trial court, which was confirmed in appeal by the High Court. The learned trial court and the High Court had held that the complaint filed was beyond limitation. This Supreme Court of India reversed the judgments of the learned trial court and the High Court. This Court while interpreting the expression at any time observed thus: If we look into Conditions 3 and 6 with the object and purpose of the Act in mind, it has to be held that these conditions are not only relatable to what was required at the commencement of depillaring process, but the unstowing for the required length must exist always. The expression at any time finding place in Condition 6 has to mean, in the context in which it has been used, at any point of time, the effect of which is that the required length must be maintained all the time. The accomplishment of object of the Act, one of which is safety in the mines, requires taking of such a view, especially in the backdrop of repeated mine disasters which have been taking, off and on, heavy toll of lives of the miners. It may be pointed out that the word any has a diversity of meaning and in Black's Law Dictionary it has been stated that this word may be employed to indicate all or every, and its meaning will depend upon the context and subject matter of the statute. A reference to what has been stated in Stroud's Judicial Dictionary Vol. I, is revealing inasmuch as the import of the word any has been explained from pp. 145 to 153 of the 4th Edn., a perusal of which shows it has different connotations depending primarily on the subject‑matter of the statute and the context of its use. A Bench of this Supreme Court of India in Lucknow Development Authority v. M.K. Gupta [(1994) 1 SCC 243] gave a very wide meaning to this word finding place in Section 2(o) of the Consumer Protection Act, 1986 defining service., Shri Chidambaram rightly argued that the word any will have to be construed in its context, taking into consideration the scheme and the purpose of the enactment. There can be no quarrel with regard to the said proposition. Right from the judgment of the Constitution Bench of this Supreme Court of India in the case of The Chief Inspector of Mines and another v. Lala Karam Chand Thapar etc. (supra), the position is clear. What is the meaning which the legislature intended to give to a particular statutory provision has to be decided by the Court on a consideration of the context in which the word(s) appear(s) and in particular, the scheme and object of the legislation., We find that for deciding the present issue, it will also be necessary to refer an important principle of interpretation of statutes i.e. purposive interpretation., Legislation has an aim, it seeks to obviate some mischief, to supply an inadequacy, to effect a change of policy, to formulate a plan of government. That aim, that policy is not drawn, like nitrogen, out of the air; it is evidenced in the language of the statute, as read in the light of other external manifestations of purpose (Some Reflections on the Reading of Statutes, 47 Columbia LR 527, at p. 538 (1947))., This is how Justice Frankfurter succinctly propounds the principle of purposive interpretation. It is thus necessary to cull out the legislative policy from various factors like the words in the statute, the preamble of the Act, the statement of objects and reasons, and in a given case, even the attendant circumstances. After the legislative policy is found, then the words used in the statute must be so interpreted such that it advances the purpose of the statute and does not defeat it., Francis Bennion in his treatise Statutory Interpretation, at page 810 described purposive construction in an equally eloquent manner as under: A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive‑and‑literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive‑and‑strained construction)., A statute must be construed having regard to the legislative intent. It has to be meaningful. A construction which leads to manifest absurdity must not be preferred to a construction which would fulfil the object and purport of the legislative intent., Aharon Barak, the former President of the Supreme Court of Israel, whose exposition of doctrine of proportionality has found approval by the Constitution Bench of this Supreme Court of India in the case of Modern Dental College and Research Centre and Others (supra), to which we will refer to in the forthcoming paragraphs, in his commentary on Purposive Interpretation in Law, has summarized the goal of interpretation in law as under: At some point, we need to find an Archimedean foothold, external to the text, from which to answer that question. My answer is this: The goal of interpretation in law is to achieve the objective in other words, the purpose of law. The role of a system of interpretation in law is to choose, from among the semantic options for a given text, the meaning that best achieves the purpose of the text. Each legal text will, contract, statute, and constitution was chosen to achieve a social objective., The learned Judge emphasized that purposive interpretation is the most proper system of interpretation. He observed that this system is proper because it guarantees the achievement of the purpose of law. The proper criterion for interpretation is the search for law's purpose, and that purposive interpretation best fulfills that criterion., The principle of purposive interpretation has also been expounded through a catena of judgments of this Supreme Court of India. A Constitution Bench of this Supreme Court of India in the case of M. Pentiah and others v. Muddala Veeramallappa and others was considering a question, as to whether the term prescribed in Section 34 would apply to a member of a deemed committee under the provisions of the Hyderabad District Municipalities Act, 1956. An argument was put forth that, upon a correct interpretation of the provisions of Section 16, the same would be permissible. Rejecting the said argument, K. Subba Rao, J, observed thus: Before we consider this argument in some detail, it will be convenient at this stage to notice some of the well established rules of construction which would help us to steer clear of the complications created by the Act. Maxwell on the Interpretation of Statutes, 10th Edn., says at p. 7 thus: if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. It is said in Craies on Statute Law, 5th Edn., at p. 82 Manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly to be avoided. Lord Davey in Canada Sugar Refining Co. v. R. [(1898) AC 735] provides another useful guide of correct perspective to such a problem in the following words: Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject matter., A.K. Sarkar, J. in his concurring opinion observed thus: There is no doubt that the Act raises some difficulty. It was certainly not intended that the members elected to the Committee under the repealed Act should be given a permanent tenure of office nor that there would be no elections under the new Act. Yet such a result would appear to follow if the language used in the new Act is strictly and literally interpreted. It is however well established that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsman's unskilfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the courts are very reluctant to substitute words in a statute, or to add words to it, and it has been said that they will only do so where there is a repugnancy to good sense. In Seaford Court Estates Ltd. v. Asher [(1949) 2 AER 155, 164], Denning, L.J. said: when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written word so as to give force and life to the intention of the legislature. A judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases., Another Constitution Bench Judgment of this Supreme Court of India in the case of Chief Justice of Andhra Pradesh and others v. L.V.A. Dixitulu and others reiterated the position in the following words: Where two alternative constructions are possible, the court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment., In the case of M/s Girdhari Lal and Sons v. Balbir Nath Mathur and others, O. Chinnappa Reddy, J. explained the position as under: So we see that the primary and foremost task of a court in interpreting a statute is to ascertain the intention of the legislature, actual or imputed. Having ascertained the intention, the court must then strive to so interpret the statute as to promote or advance the object and purpose of the enactment. For this purpose, where necessary the court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the court would be well justified in departing from the so‑called golden rule of construction so as to give effect to the object and purpose of the enactment by supplementing the written word if necessary., After referring to various earlier judgments of other jurisdictions, His Lordship observed thus:
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Supreme Court of India has generally taken the view that ascertainment of legislative intent is a basic rule of statutory construction and that a rule of construction should be preferred which advances the purpose and object of a legislation and that, though a construction according to plain language should ordinarily be adopted, such a construction should not be adopted where it leads to anomalies, injustices or absurdities, vide K.P. Varghese v. Income Tax Officer [(1981) 4 SCC 173 : 1981 SCC (Tax) 293], State Bank of Travancore v. Mohd. M. Khan [(1981) 4 SCC 82], Som Prakash Rekhi v. Union of India [(1981) 1 SCC 449 : 1981 SCC (L&S) 200], Govindlal v. Agricultural Produce Market Committee [(1975) 2 SCC 482], and Babaji Kondaji v. Nasik Merchants Co-operative Bank Ltd. [(1984) 2 SCC 50] [emphasis supplied]. M.N. Venkatachaliah, J., speaking for the Constitution Bench of the Supreme Court of India in the case of Tinsukhia Electric Supply Co. Ltd. v. State of Assam and others observed thus:, The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of a statute must be so construed as to make it effective and operative, on the principle *ut res magis valeat quam pereat*. It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not a judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning and purpose which the legislature intended for it., In Manchester Ship Canal Co. v. Manchester Racecourse Co. [(1904) 2 Ch 352 : 16 TLR 429 : 83 L T 274] Farwell J. said: \Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty.\ In Fawcett Properties Ltd. v. Buckingham County Council [(1960) 3 All ER 503] Lord Denning, approving the dictum of Farwell J., said: \But when a statute has some meaning, even though it is obscure, or several meanings, even though there is little to choose between them, the courts have to say what meaning the statute is to bear rather than reject it as a nullity.\, It is, therefore, the Supreme Court of India's duty to make what it can of the statute, knowing that statutes are meant to be operative and not inept and that nothing short of impossibility should allow a court to declare a statute unworkable. In Whitney v. Inland Revenue Commissioners [1926 AC 37] Lord Dunedin said: \A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless a crucial omission or clear direction makes that end unattainable.\, In the case of State of Gujarat and another v. Justice R.A. Mehta (Retired) and others, the Supreme Court of India held: The doctrine of purposive construction may be taken recourse to for the purpose of giving full effect to statutory provisions, and the courts must state what meaning the statute should bear, rather than rendering the statute a nullity, as statutes are meant to be operative and not inept. The courts must refrain from declaring a statute to be unworkable. The rules of interpretation require that construction which carries forward the objectives of the statute, protects the interests of the parties and keeps the remedy alive, should be preferred looking into the text and context of the statute. Construction given by the court must promote the object of the statute and serve the purpose for which it has been enacted and not efface its very purpose. The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of the statute must be so construed as to make it effective and operative. The court must take a pragmatic view and keep in mind the purpose for which the statute was enacted, as the purpose of law itself provides good guidance to courts as they interpret the true meaning of the Act and thus legislative futility must be ruled out. A statute must be construed in such a manner as to ensure that the Act does not become a dead letter and the obvious intention of the legislature does not stand defeated unless it leads to a case of absolute intractability in use. The court must adopt a construction which suppresses the mischief and advances the remedy, suppresses subtle inventions and evasions, and adds force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico. The court must give effect to the purpose and object of the Act for the reason that the legislature is presumed to have enacted a reasonable statute. (Vide M. Pentiah v. Muddala Veeramallappa [AIR 1961 SC 1107], S.P. Jain v. Krishna Mohan Gupta [(1987) 1 SCC 191 : AIR 1987 SC 222], RBI v. Peerless General Finance and Investment Co. Ltd. [(1987)], Tinsukhia Electric Supply Co. Ltd. v. State of Assam [(1989) 3 SCC 709 : AIR 1990 SC 123], UCO Bank v. Rajinder Lal Capoor [(2008) 5 SCC 257 : (2008) 2 SCC (L&S) 263] and Grid Corporation of Orissa Ltd. v. Eastern Metals and Ferro Alloys [(2011) 11 SCC 334] [emphasis supplied]., The principle of purposive construction has been enunciated in various subsequent judgments of the Supreme Court of India. However, we would not like to burden this judgment with a plethora of citations. Suffice it to say, the law on the issue is very well crystalised., It is thus clear that it is a settled principle that the modern approach of interpretation is a pragmatic one, and not pedantic. An interpretation which advances the purpose of the Act and which ensures its smooth and harmonious working must be chosen, and an interpretation which leads to absurdity, confusion, friction, contradiction, conflict between its various provisions, or undermines, defeats or destroys the basic scheme and purpose of the enactment must be eschewed. The primary and foremost task of the Supreme Court of India in interpreting a statute is to gather the intention of the legislature, actual or imputed. Having ascertained the intention, it is the duty of the Court to strive to interpret the statute so as to promote or advance the object and purpose of the enactment. For this purpose, where necessary, the Court may even depart from the rule that plain words should be interpreted according to their plain meaning. There need be no meek and mute submission to the plainness of the language. To avoid patent injustice, anomaly or absurdity or to avoid invalidation of a law, the Court would be justified in departing from the so‑called golden rule of construction so as to give effect to the object and purpose of the enactment. Ascertainment of legislative intent is the basic rule of statutory construction., Applying the aforesaid pronouncements on the construction of the term \any\ and the principle of purposive construction, we will now consider the scope of the term \any\ used in sub‑section (2) of Section 26 of the Reserve Bank of India Act., Sub‑section (2) of Section 26 of the Reserve Bank of India Act empowers the Central Government to issue a notification in the Gazette of India, thereby declaring that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender. It further provides that such an action has to be taken by the Central Government on the recommendation of the Central Board., As already discussed herein above, the Reserve Bank of India Act is a special Act, vesting all the powers and functions with regard to monetary policy and all matters pertaining to management and regulation of currency with the Reserve Bank of India. The Central Government is required to take its decision on the basis of the recommendation of the Central Board., It could thus be seen that power is vested with the Central Government and that power has to be exercised on the recommendation of the Reserve Bank of India. Both sides agree that the Reserve Bank of India plays a unique role in the matter of monetary policy and issuance of currency. The Central Government is empowered under sub‑section (2) of Section 26 of the Reserve Bank of India Act to notify any series of bank notes of any denomination to cease to be legal tender. The effect of such a notification would be that the liabilities as provided under Section 34 of the Reserve Bank of India Act and the guarantee as provided under sub‑section (1) of Section 26 of the Reserve Bank of India Act shall cease to have effect on such notification being issued, thereby demonetising the bank notes., As already discussed herein above, the Reserve Bank of India Act has been enacted to regulate the issue of bank notes and generally to operate the currency and credit system of the country. Section 3 of the Reserve Bank of India Act provides that the Reserve Bank of India has been constituted for the purposes of taking over the management of the currency from the Central Government and carrying on the business of banking in accordance with the provisions of the Act. Sub‑section (1) of Section 22 of the Reserve Bank of India Act provides that the Reserve Bank of India shall have the sole right to issue bank notes in India. However, for a period which is to be fixed by the Central Government on the recommendation of the Central Board, it can issue currency notes of the Government of India supplied to it by the Central Government. Further, sub‑section (2) of Section 22 specifically prohibits the Central Government from issuing any currency notes on and from the date on which Chapter III of the Reserve Bank of India Act comes into effect., It can thus clearly be seen that a primary and very important role is assigned to the Reserve Bank of India in the matter of issuance of bank notes. As held by the Supreme Court of India in the case Peerless General Finance and Investment Co. Limited and another, the Reserve Bank of India has a large contingent of expert advice available to it. The Central Government would exercise its power on the recommendation of the Central Board. When the legislature itself has provided that the Central Government would take a decision after considering the recommendation of the Central Board of the Reserve Bank of India, which has been assigned a primary role in matters of monetary policy and management and regulation of currency, we are of the view that the legislature could not have intended to give a restricted power under sub‑section (2) of Section 26 of the Reserve Bank of India Act. In any case, if the argument that the provisions of sub‑section (2) of Section 26 of the Reserve Bank of India Act have to be interpreted in a restricted manner is accepted, it may, at times, lead to an anomalous situation., For example, if there are twenty series of a particular denomination, and if the argument of the petitioners is accepted, the Central Government would be empowered to demonetise nineteen series of that denomination, leaving one series to continue as legal tender, which would lead to a chaotic situation., As discussed herein above, the policy underlying the provisions of Section 26 of the Reserve Bank of India Act is to enable the Central Government, on the recommendation of the Central Board, to effect demonetisation. The same can be done in respect of any series of bank notes of any denomination. The legislative policy is with regard to management and regulation of currency. Demonetisation of notes is certainly a part of management and regulation of currency. The legislature has empowered the Central Government to exercise such a power. The Central Government may take recourse to such a power when it finds necessary to do so, taking into consideration myriad factors. No doubt such factors must have a reasonable nexus with the object sought to be achieved. If the Central Government finds that fake notes of a particular denomination are widely in circulation or are being used to promote terrorism, can it be said, for instance, that out of twenty series of bank notes of that denomination, it can demonetise only nineteen series but not all twenty? In our view, this would result in nothing else but absurdity and the very purpose for which the power is vested would stand frustrated. An interpretation that nullifies the purpose for which a power is to be exercised would be opposed to the principle of purposive interpretation and would defeat the object of the enactment., Another line of argument advanced with regard to the submission that the power under sub‑section (2) of Section 26 of the Reserve Bank of India Act has to be construed as restricting it to one or some series of bank notes is that Parliament also meant the same, insofar as on earlier two occasions—in 1946 and 1978—the demonetisation exercise in respect of all series was done by resorting to plenary legislation. Shri Chidambaram has taken us through various volumes of the history of the Reserve Bank of India. Perusal of Volume I reveals that, in 1946, it is not known when the Government authorities started thinking on the demonetisation measure, but the final consultation could take place with the Governor and Deputy Governor. It appears that the Reserve Bank of India authorities were not enthusiastic about the scheme. Despite the opposition of the then Governor of the Reserve Bank of India, Shri C.D. Deshmukh, the Government went ahead with the scheme and issued an ordinance on 12 January 1946. Perusal of Volume III reveals that the then Governor I.G. Patel was not in favour of the demonetisation scheme of 1978. Nevertheless, despite the Governor’s opposition, the Government went ahead with the demonetisation scheme and issued an ordinance in the early hours of 16 January 1978, and the news was announced on All India Radio’s news bulletin at 9 a.m. on the same day., It could thus be seen that on the earlier two occasions, since the Reserve Bank of India was not in favour of the demonetisation, the Government resorted to promulgating ordinances for the said purpose., It is to be noted that after the ordinance of 1946 was promulgated, the Reserve Bank of India Act was amended vide Act No. 62 of 1956 and Section 26A was added, thereby specifically providing that no bank note of the denominational value of Rs. 500, Rs. 1,000 and Rs. 10,000 issued before the 13th day of January 1946 shall be legal tender in payment or on account for the amount expressed therein., After the ordinance was issued on 16 January 1978, the same transformed into an Act of Parliament upon the President of India giving his assent to the Act on 30 March 1978., Merely because on the earlier two occasions the Government decided to take recourse to plenary power of legislation, this by itself cannot be a ground to give a restricted meaning to the word \any\ in sub‑section (2) of Section 26 of the Reserve Bank of India Act. As already discussed herein above, in our considered view, the legislative intent could not have been to give a restricted meaning to the word \any\ in that provision., We are, therefore, unable to accept the contention that the word \any\ has to be given a restricted meaning taking into consideration the overall scheme, purpose and object of the Reserve Bank of India Act and also the context in which the power is to be exercised. We find that the word \any\ would mean \all\ under sub‑section (2) of Section 26 of the Reserve Bank of India Act., The second limb of argument on behalf of the petitioners is that, if the word \any\ used in sub‑section (2) of Section 26 of the Reserve Bank of India Act is not given a restricted meaning, then that provision will have to be held invalid on the ground that it confers excessive delegation upon the Central Government., It is submitted that sub‑section (2) of Section 26 of the Reserve Bank of India Act vests uncanalised, unguided and arbitrary powers in the Central Government and, as such, on this ground alone, the provision is liable to be struck down., Shri P. Chidambaram, learned Senior Counsel, relied on the Constitution Bench judgment of the Supreme Court of India in the case of Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another to buttress his submissions., In the case of Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another, the Constitution Bench of the Supreme Court of India, while considering the validity of clause (d) of Section 3 of the Drug and Magic Remedies (Objectionable Advertisement) Act, 1954, observed that the interdiction under the Act is applicable to conditions and diseases set out in the various clauses of Section 3 and to those that may, under the last part of clause (d), be specified in the Rules made under Section 16. The first sub‑section of Section 16 authorises the making of rules to carry out the purposes of the Act and clause (a) of sub‑section (2) specifically authorises the specification of diseases or conditions to which the provisions of Section 3 shall apply. It is the first sub‑section of Section 16 which confers the general rule‑making power, i.e., it delegates to the administrative authority the power to frame rules and regulations to subserve the object and purpose of the Act. Clause (a) of the second sub‑section is merely illustrative of the power given under the first sub‑section (King‑Emperor v. Sibnath Banerji [(1945) LR 72 IA 241]). Consequently, sub‑section 2(a) also has the same object as sub‑section (1), i.e., to carry out the purposes of the Act. When the rule‑making authority specifies conditions and diseases in the Schedule, it exercises the same delegated authority as it does when it exercises powers under sub‑section (1) and makes other rules, and therefore it is delegated legislation. The question for decision is whether the delegation is constitutional in that the administrative authority has been supplied with proper guidance. In our view, the words impugned are vague. Parliament has established no criteria, no standards and has not prescribed any principle on which a particular disease or condition is to be specified in the Schedule. It is not stated what facts or circumstances are to be taken into consideration to include a particular condition or disease. The power of specifying diseases and conditions as given in Section 3(d) must therefore be held to be going beyond permissible boundaries of valid delegation. As a consequence the Schedule in the rules must be struck down, but that would not affect such conditions and diseases which properly fall within the four clauses of Section 3, excluding the portion of clause (d) which has been declared unconstitutional., In the said case, the Supreme Court of India found that sub‑section (1) of Section 16 confers a power on the Central Government to make rules for carrying out the purposes of the Act. The Court further held that it is the first sub‑section of Section 16 which confers the general rule‑making power, i.e., it delegates to the administrative authority the power to frame rules and regulations to subserve the object and purpose of the Act. The Court found that the question was whether the delegation to the administrative authority without supplying proper guidance was constitutional. The Court held that the words impugned were vague and Parliament had established no criteria, no standards and had not prescribed any principle on which a particular disease or condition was to be specified in the Schedule. Accordingly, the Court held clause (d) of Section 3 to amount to excessive delegation and thus unconstitutional., In the case of Harakchand Ratanchand Banthia and others, the Constitution Bench of the Supreme Court of India was considering the power given to the Administrator under the Gold (Control) Act, 1968. Section 5 of that Act, which confers power on the Administrator to issue directions and orders, reads: \Power of Administrator to issue directions and orders. (1) The Administrator may, if he thinks fit, make orders, not inconsistent with the provisions of this Act, for carrying out the provisions of this Act. (2) The Administrator may, so far as it appears to him to be necessary or expedient for carrying out the provisions of this Act, by order (a) regulate, after consultation with the Reserve Bank of India, the price at which any gold may be bought or sold, and (b) regulate by licences, permits or otherwise, the manufacture, distribution, transport, acquisition, possession, transfer, disposal, use or consumption of gold.\, It can be seen that under clause (b) of sub‑section (2) of Section 5, the Administrator was conferred with the power to regulate, by licences, permits or otherwise, the manufacture, distribution, transport, acquisition, possession, transfer, disposal, use or consumption of gold. The Supreme Court of India observed that the power conferred upon the Administrator under Section 5(2)(b) is legislative in character and extremely wide. A parallel power of subordinate legislation is conferred to the Central Government under Section 114(1) and (2) of the Act, but Section 114(3) makes it incumbent upon the Central Government to place the Rules before each House of Parliament while it is in session for a total period of thirty days. The substantive provisions of the Act, namely Sections 8, 11, 21, 31(3) and 34(3), confer powers on the Administrator similar to those contemplated by Section 5(2)(b). In these circumstances, the Court held that the power of regulation granted to the Administrator under Section 5(2)(b) suffers from excessive delegation of legislative power and must be held constitutionally invalid., This Court, therefore, was considering the delegation of power to the Administrator under clause (b) of sub‑section (2) of Section 5 of the Gold (Control) Act, 1968. The Court found that a parallel power of subordinate legislation was conferred to the Central Government under Section 114(1) and (2) of the Act, and that under sub‑section (3) of Section 114 the Central Government must place the Rules before each House of Parliament. The Court further held that the substantive provisions of the Act, namely Sections 8, 11, 21, 31(3) and 34(3), also confer powers on the Administrator similar to those contemplated by Section 5(2)(b). Consequently, the Court held that the power of regulation granted to the Administrator under Section 5(2)(b) suffers from excessive delegation and is therefore unconstitutional., It could thus be seen that clause (b) of sub‑section (2) of Section 5 of the Gold (Control) Act, 1968 conferred a power on the Administrator which was legislative in nature, to regulate transactions with regard to the use and consumption of gold., It is to be noted that clause (a) of sub‑section (2) of Section 5 of the Gold (Control) Act, 1968 also empowered the Administrator to regulate, after consultation with the Reserve Bank of India, the price at which any gold may be bought or sold. It was argued before the Court that this provision was also invalid, amounting to excessive delegation, insofar as the power conferred was unguided. The Supreme Court of India specifically rejected that contention. The Court observed that, although the power to fix the price may be exercised not only in respect of primary gold but also in respect of articles and ornaments, the provision provides the safeguard that the regulation of the price should be made by the Administrator after consultation with the Reserve Bank of India. The phrase \so far as it appears to him to be necessary or expedient for carrying out the provisions of this Act\ was argued to be a subjective formula that could render the Administrator’s action arbitrary and unreasonable. The Court held that the formula is not subjective and does not make the Administrator the sole judge of what is necessary or expedient for the purposes of the Act. In the context of the scheme and object of the legislation as a whole, the expression cannot be construed in a subjective sense; the Administrator’s opinion as to necessity or expediency must be reached objectively, having regard to relevant considerations, and must be reasonably tenable in a court of law. It must be assumed that the Administrator will generally address the circumstances before him and not promote purposes alien to the object of the Act., It is thus clear that, although the Court found the power under Section 5(2)(b) of the Gold (Control) Act, 1968 to suffer from excessive delegation and therefore to be constitutionally invalid, it categorically rejected the contention as to Section 5(2)(a), insofar as that provision provides a safeguard that the regulation of the price should be made by the Administrator after consultation with the Reserve Bank of India., This Court rejected the argument that the phrase \so far as it appears to him to be necessary or expedient for carrying out the provisions of this Act\ was a subjective formula and that the Administrator’s action under Section 5(2)(a) was arbitrary and unreasonable. The Court held that, in the context of the scheme and object of the legislation as a whole, the expression cannot be construed in a subjective sense and the Administrator’s opinion as to necessity or expediency must be reached objectively, having regard to relevant considerations and must be reasonably tenable in a court of law., It could thus be seen that, although the Court found the power under Section 5(2)(b) of the Gold (Control) Act, 1968 to be invalid on the ground of excessive delegation, it found the power under Section 5(2)(a) to be valid since it provides an inbuilt safeguard that the Administrator must act after consultation with the Reserve Bank of India., A Seven‑Judge Bench of the Supreme Court of India, in the case of Birla Cotton, Spinning and Weaving Mills Delhi, was considering the validity of Section 150 of the Delhi Municipal Corporation Act, 1957, which reads: \150. Imposition of other taxes. (1) The Corporation may, at a meeting, pass a resolution for the levy of any of the taxes specified in sub‑section (2) of Section 113, defining the maximum rate of the tax to be levied, the class or classes of persons or the description or descriptions of articles and properties to be taxed, the system of assessment to be adopted and the exemptions, if any, to be granted. (2) Any resolution passed under sub‑section (1) shall be submitted to the Central Government for its sanction, and if sanctioned by that Government, shall come into force on and from such date as may be specified in the order of sanction. (3) After a resolution has come into force under sub‑section (2), the Corporation may, subject to the maximum rate, pass a second resolution determining the actual rates at which the tax shall be leviable; and the tax shall come into force on the first day of the quarter of the year next following the date on which such second resolution is passed. (4) After a tax has been levied in accordance with the foregoing provisions of this section, the provisions of sub‑section (2) of Section 109 shall apply in relation to such tax as they apply in relation to any tax imposed under sub‑section (1) of Section 113.\
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It was sought to be argued that Section 150(1) delegates completely unguided power to the Corporation in the matter of optional taxes and suffers from the vice of excessive delegation and, therefore, is unconstitutional. The Supreme Court of India after considering various earlier cases including Hamdard Dawakhana (Wakf) Lal Kuan, Delhi and another (supra) observed thus: A review of these authorities therefore leads to the conclusion that, as far as the Supreme Court of India is concerned, the principle is well established that essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature. Nor is there any unlimited right of delegation inherent in the legislative power itself. This is not warranted by the provisions of the Constitution. The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Supreme Court of India has to deal including its preamble. Further it appears to us that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. What form the guidance should take is again a matter which cannot be stated in general terms. It will depend upon the circumstances of each statute under consideration; in some cases guidance in broad general terms may be enough; in other cases more detailed guidance may be necessary., K.N. Wanchoo, Chief Justice, speaking for himself and J.M. Shelat, Justice, held that where the legislative policy is enunciated with sufficient clarity or a standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the Supreme Court of India has to deal, including its preamble. They further held that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation. The Supreme Court of India further held that what form the guidance should take is again a matter which cannot be stated in general terms. It will depend upon the circumstances of each statute under consideration. It further held that in some cases guidance in broad general terms may be enough, in other cases more detailed guidance may be necessary., The Supreme Court of India further observed thus: The first circumstance which must be taken into account in this connection is that the delegation has been made to an elected body responsible to the people including those who pay taxes. The councillors have to go for election every four years. This means that if they have behaved unreasonably and the inhabitants of the area so consider it they can be thrown out at the ensuing elections. This is, in our opinion, a great check on the elected councillors acting unreasonably and fixing unreasonable rates of taxation. This is a democratic method of bringing to book the elected representatives who act unreasonably in such matters., It was thus found that the delegation was made to an elected body responsible to the people including those who pay taxes. It has been observed that if the councillors behave unreasonably and the inhabitants of the area so consider it, they can be thrown out at the ensuing elections. As such, there is a great check on the elected councillors acting unreasonably and fixing unreasonable rates of taxation. This is a democratic method of bringing to book the elected representatives who act unreasonably in such matters., The Supreme Court of India further found that another guide or control on the limit of taxation is to be found in the purposes of the Act. After careful consideration of the various provisions of the Delhi Municipal Corporation Act, 1957, the Supreme Court of India held that the power conferred by Section 150 thereof on the Corporation is not unguided and cannot be said to amount to excessive delegation., It will also be apposite to refer to the concurring judgment of S.M. Sikri, Justice, wherein he observed thus: But assuming I am bound by authorities of the Supreme Court of India to test the validity of Section 113(2)(d) and Section 150 of the Act by ascertaining whether a guide or policy exists in the Act, I find adequate guide or policy in the expression purposes of the Act in Section 113. The Act has pointed out the objectives or the results to be achieved and taxation can be levied only for the purpose of achieving the objectives or the results. This, in my view, is sufficient guidance especially to a self‑governing body like the Delhi Municipal Corporation. It is not necessary to rely on the safeguards mentioned by the learned Chief Justice to sustain the delegation., S.M. Sikri, Justice in his concurring judgment also held that he found adequate guide or policy in the expression purposes of the Act in Section 113. He observed that the Act has pointed out the objectives or the results to be achieved and taxation can be levied only for the purpose of achieving the objectives or the results. In the view of His Lordship, this was sufficient guidance especially to a self‑governing body like the Delhi Municipal Corporation., It will also be apposite to refer to the following observations of M. Hidayatullah, Justice, in his concurring judgment: The question always is whether the legislative will has been exercised or not. Once it is established that the legislature itself has willed that a particular thing be done and has merely left the execution of it to a chosen instrumentality (provided that it has not parted with its control) there can be no question of excessive delegation. If the delegate acts contrary to the wishes of the legislature the legislature can undo what the delegate has done. Even the courts, as we shall show presently, may be asked to intervene when the delegate exceeds its powers and functions. To insist that the legislature should provide for every matter connected with municipal taxation would make municipalities mere tax‑collecting departments of the Government and not self‑governing bodies which they are intended to be. The Government might as well collect the taxes and make them available to the municipalities. That is not a correct reading of the history of Municipal Corporations and other self‑governing institutions in our country., Observing thus, M. Hidayatullah, Justice also rejected the contention that provisions of Section 150 suffer from excessive delegation. His Lordship has observed that once it is established that the legislature itself has willed that a particular thing be done and has merely left the execution of it to a chosen instrumentality, there can be no question of excessive delegation. This is, however, subject to the proviso that the legislature has not parted with its control. It is observed that if the delegate acts contrary to the wishes of the legislature the legislature can undo what the delegate has done., Another Constitution Bench of the Supreme Court of India in the case of Gwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. (supra) was considering the validity of Section 8(2)(b) of the Central Sales Tax Act, 1956 on the ground that it suffered from the vice of excessive delegation. In the said case, H.R. Khanna, Justice, speaking for the majority, after surveying the earlier judgments of the Supreme Court of India including that in the case of Birla Cotton, Spinning and Weaving Mills Delhi (supra), observed thus: It may be stated at the outset that the growth of the legislative powers of the Executive is a significant development of the twentieth century. The theory of laissez‑faire has been given a go‑by and large and comprehensive powers are being assumed by the State with a view to improve social and economic well‑being of the people. Most of the modern socio‑economic legislations passed by the Legislature lay down the guiding principles and the legislative policy. The Legislatures because of limitation imposed upon by the time factor hardly go into matters of detail. Provision is, therefore, made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation. The practice of empowering the Executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a modern welfare State. At the same time it has to be borne in mind that our Constitution‑makers have entrusted the power of legislation to the representatives of the people, so that the said power may be exercised not only in the name of the people but also by the people speaking through their representatives. The role against excessive delegation of legislative authority flows from and is a necessary postulate of the sovereignty of the people. The rule contemplates that it is not permissible to substitute in the matter of legislative policy the views of individual officers or other authorities, however competent they may be, for that of the popular will as expressed by the representatives of the people., The Supreme Court of India observed that the growth of the legislative powers of the Executive is a significant development of the twentieth century. The theory of laissez‑faire has been given a go‑by and large and comprehensive powers are being assumed by the State with a view to improve social and economic well‑being of the people. It has been held that most of the modern socio‑economic legislations passed by the Legislature lay down the guiding principles and the legislative policy. It is not possible for the Legislatures to go into matters of detail. Therefore, a provision has been made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation. It has been observed that the practice of empowering the Executive to make subordinate legislation within a prescribed sphere has evolved out of practical necessity and pragmatic needs of a modern welfare State. It has been observed that the role against excessive delegation of legislative authority flows from and is a necessary postulate of the sovereignty of the people. It has been held that the rule contemplates that it is not permissible to substitute in the matter of legislative policy the views of individual officers or other authorities, however competent they may be, for that of the popular will as expressed by the representatives of the people., It has further been observed thus: The Constitution, as observed by the Supreme Court of India in the case of Devi Das Gopal Krishnan v. State of Punjab [AIR 1967 SC 430] confers a power and imposes a duty on the Legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the Executive or any other agency. But there is danger inherent in such a process of delegation. An over‑burdened Legislature or one controlled by a powerful Executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the Executive; it may confer an arbitrary power on the Executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self‑effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation. It is for a court to hold on a fair, generous and liberal construction of an impugned statute whether the Legislature exceeded such limits., It has been held that the essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. The Legislature cannot abdicate its functions in favour of another. However, in view of the multifarious activities of a welfare State, it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must, therefore, necessarily delegate the working out of details to the Executive or any other agency. The Supreme Court of India also cautions about the danger inherent in the process of delegation. It observed that an over‑burdened Legislature or one controlled by a powerful Executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the Executive; it may confer an arbitrary power on the Executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. It has been held that it is for the Supreme Court of India to hold on a fair, generous and liberal construction of an impugned statute to examine whether the Legislature exceeded such limits., We may gainfully refer to the following observations in the concurring judgment of K.K. Mathew, Justice: Delegation of law‑making power, it has been said, is the dynamo of modern Government. Delegation by the Legislature is necessary in order that the exertion of legislative power does not become a futility. Today, while theory still affirms legislative supremacy, we see power flowing back increasingly to the Executive. Departure from the traditional rationalization of the status quo arouses distrust. The Legislature comprises a broader cross‑section of interests than any one administrative organ; it is less likely to be captured by particular interests. We must not, therefore, lightly say that there can be a transfer of legislative power under the guise of delegation which would tantamount to abdication. At the same time, we must be aware of the practical reality, and that is, that Parliament cannot go into the details of all legislative matters. The doctrine of abdication expresses a fundamental democratic concept but at the same time we should not insist that law‑making as such is the exclusive province of the Legislature. The aim of Government is to gain acceptance for objectives demonstrated as desirable and to realise them as fully as possible. The making of law is only a means to achieve a purpose. It is not an end in itself. That end can be attained by the Legislature making the law. But many topics or subjects of legislation are such that they require expertise, technical knowledge and a degree of adaptability to changing situations which Parliament might not possess and, therefore, this end is better secured by extensive delegation of legislative power. The legislative process would frequently bog down if a Legislature were required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. The presence of a Henry VIII clause in many of the statutes is a pointer to the necessity of extensive delegation. The hunt by the Supreme Court of India for legislative policy or guidance in the crevices of a statute or the nook and cranny of its preamble is not an edifying spectacle. It is not clear what difference does it make in principle by saying that since the delegation is to a representative body, that would be a guarantee that the delegate will not exercise the power unreasonably, for, if ex hypothesi the Legislature must perform the essential legislative function, it is certainly no consolation that the body to which the function has been delegated has a representative character. In other words, if no guidance is provided or policy laid down, the fact that the delegate has a representative character could make no difference in principle., Though the learned Judge cautions against abdication under the guise of delegation, he also emphasizes a necessity to be aware about the practical reality, i.e., Parliament cannot go into the details of all legislative matters. The learned Judge observed that the aim of Government is to gain acceptance for objectives demonstrated as desirable and to realise them as fully as possible. The learned Judge observed that there are many topics or subjects of legislation which are such that they may require expertise, technical knowledge and a degree of adaptability to changing situations which Parliament might not possess and, therefore, this end is better secured by extensive delegation of legislative power. It has been held that the legislative process would frequently bog down if a Legislature were required to appraise beforehand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. The Supreme Court of India further emphasized guidance for the delegate to exercise the delegated power., The Supreme Court of India, in the case of The Registrar of Co‑operative Societies, Trivandrum and another v. K. Kunjambu and others (supra), while reversing the judgment of the Kerala High Court, which had held Section 60 of the Madras Co‑operative Societies Act, 1932 to be unconstitutional on the ground of vice of excessive delegation, observed thus: Executive activity in the field of delegated or subordinate legislation has increased in direct, geometric progression. It has to be and it is as it should be. Parliament and the State Legislatures are not bodies of experts or specialists. They are skilled in the art of discovering the aspirations, the expectations and the needs, the limits to the patience and the acquiescence and the articulation of the views of the people whom they represent. They function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies which are better left to better equipped full‑time expert executive bodies and specialist public servants. Parliament and the State Legislatures have neither the time nor the expertise to be involved in detail and circumstance. Nor can Parliament and the State Legislatures visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. That is the raison d'être for delegated legislation. That is what makes delegated legislation inevitable and indispensable. The Indian Parliament and the State Legislatures are endowed with plenary power to legislate upon any of the subjects entrusted to them by the Constitution, subject to the limitations imposed by the Constitution itself. The power to legislate carries with it the power to delegate. But excessive delegation may amount to abdication. Delegation unlimited may invite despotism uninhabited. So the theory has been evolved that the legislature cannot delegate its essential legislative function. Legislate it must by laying down policy and principle and delegate it may to fill in detail and carry out policy. The legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute, the preamble, the scheme or even the very subject‑matter of the statute. If guidance there is, wherever it may be found, the delegation is valid. A good deal of latitude has been held to be permissible in the case of taxing statutes and on the same principle a generous degree of latitude must be permissible in the case of welfare legislation, particularly those statutes which are designed to further the Directive Principles of State Policy., The Supreme Court of India has observed that the executive activity in the field of delegated or subordinate legislation has increased in direct, geometric progression. The Supreme Court of India observed that Parliament and the State Legislatures are not bodies of experts or specialists. It is observed that the legislative bodies function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies which are better left to better equipped full‑time expert executive bodies and specialist public servants. It has been held that Parliament and the State Legislatures cannot visualise and provide for new, strange, unforeseen and unpredictable situations arising from the complexity of modern life and the ingenuity of modern man. It has been further reiterated that guidance could be found from various factors and once it is found, the delegation is valid. It has been held that a good deal of latitude has to be held to be permissible in the case of taxing statutes and welfare legislations., The Supreme Court of India in the case of Ramesh Birch and others (supra) again, after referring to the earlier judgments and after considering the views expressed by various learned Judges on the aspect of delegated legislation, observed thus: But, these niceties apart, we think that Section 87 is quite valid even on the policy and guideline theory if one has proper regard to the context of the Act and the object and purpose sought to be achieved by Section 87 of the Act. The judicial decisions referred to above make it clear that it is not necessary that the legislature should dot all the i's and cross all the t's of its policy. It is sufficient if it gives the broadest indication of a general policy of the legislature., Recently, the Constitution Bench of the Supreme Court of India in the case of Rojer Mathew (supra) considered the question, as to whether Section 184 of the Finance Act, 2017, which does not prescribe qualifications, appointment, term and conditions of service, salary and allowances, etc., suffers from the vice of excessive delegation. Rejecting the contention, the Supreme Court of India observed thus: Cautioning against the potential misuse of Section 184 by the executive, it was vehemently argued by the learned counsel for the petitioner(s) that any desecration by the executive of such powers threatens and poses a risk to the independence of the tribunals. A mere possibility or eventuality of abuse of delegated powers in the absence of any evidence supporting such claim, cannot be a ground for striking down the provisions of the Finance Act, 2017. It is always open to a constitutional court on challenge made to the delegated legislation framed by the executive to examine whether it conforms to the parent legislation and other laws, and apply the policy and guideline test and if found contrary, can be struck down without affecting the constitutionality of the rule‑making power conferred under Section 186 of the Finance Act, 2017., It can thus be seen that the Supreme Court of India has held that a mere possibility or eventuality of abuse of delegated powers in the absence of any evidence supporting such claim, cannot be a ground for striking down such a provision. It has been held that if a challenge is made to the delegated legislation framed by the executive, the same can be examined by the constitutional court. It has been held that applying the policy and guideline test, if it is found that the delegated legislation does not satisfy the said test, the legislation can be struck down without affecting the constitutionality of the rule‑making power conferred under Section 186 of the Finance Act, 2017., Having adverted to the various judgments on the issue of delegated legislation, we find it necessary to refer to certain judgments of the Supreme Court of India outlining the status of the Reserve Bank of India., The Constitution Bench of the Supreme Court of India in the case of Joseph Kuruvilla Velukunnel (supra) was considering a challenge to Section 38(1) and (3)(b)(iii) of the Banking Companies Act, 1949 being violative of Articles 14, 19 and 301 of the Constitution of India, and was, therefore, ultra vires the Constitution of India. Though the Supreme Court of India held that Section 38 is an unreasonable restriction on the right of the Palai Bank to carry on its business and, therefore, unconstitutional, it will be relevant to refer to paragraph 46 of the said judgment, which is as follows: In the present case, in view of the history of the establishment of the Reserve Bank as a central bank for India, its position as a Bankers' Bank, its control over banking companies and banking in India, its position as the issuing bank, its power to licence banking companies and cancel their licences and the numerous other powers, it is unanswerable that between the Supreme Court of India and the Reserve Bank, the momentous decision to wind up a tottering or unsafe banking company in the interests of the depositors, may reasonably be left to the Reserve Bank. No doubt, the Supreme Court of India can also, given the time, perform this task. But the decision has to be taken without delay, and the Reserve Bank already knows intimately the affairs of banking companies and has had access to the books and accounts. If the Supreme Court of India were called upon to take immediate action, it would almost always be guided by the opinion of the Reserve Bank. It would be impossible for the Supreme Court of India to reach a conclusion unguided by the Reserve Bank if immediate action was demanded. But the law which gives the same position to the opinion of the Reserve Bank is challenged as unreasonable. In our opinion, such a challenge has no force., The Supreme Court of India has referred to the pivotal role that the Reserve Bank of India plays as a Central Bank, as a bankers' bank and numerous other powers that it exercises. The Supreme Court of India held that the law which gives an important position to the opinion of the Reserve Bank was challenged unreasonably and such challenge had no force., It may also be relevant to refer to the following observations of the Supreme Court of India in the case of Peerless General Finance and Investment Co. Limited and another (supra): Before examining the scope and effect of the impugned paragraphs (6) and (12) of the directions of 1987, it is also important to note that the Reserve Bank of India which is a bankers' bank is a creature of statute. It has a large contingent of expert advice relating to matters affecting the economy of the entire country and nobody can doubt the bona fides of the Reserve Bank in issuing the impugned directions of 1987. The Reserve Bank plays an important role in the economy and financial affairs of India and one of its important functions is to regulate the banking system in the country. It is the duty of the Reserve Bank to safeguard the economy and financial stability of the country., It can thus be seen that the Supreme Court of India has noted that the RBI, which is a bankers' bank, is a creature of statute. It has a large contingent of expert advice relating to matters affecting the economy of the entire country. It has been held that the RBI plays an important role in the economy and financial affairs of India and one of its important functions is to regulate the banking system in the country. It has been held that it is the duty of the RBI to safeguard the economy and financial stability of the country., It will also further be relevant to refer to the following observations of the Supreme Court of India in the case of Peerless General Finance and Investment Co. Limited and another (supra): The function of the Supreme Court of India is not to advise in matters relating to financial and economic policies for which bodies like the Reserve Bank are fully competent. The Supreme Court of India can only strike down some or entire directions issued by the Reserve Bank in case the Supreme Court of India is satisfied that the directions were wholly unreasonable or violative of any provisions of the Constitution or any statute. It would be hazardous and risky for the courts to tread an unknown path and should leave such task to the expert bodies. This Supreme Court of India has repeatedly said that matters of economic policy ought to be left to the government., The Supreme Court of India has held that it is not permissible for a Court to advise in matters relating to financial and economic policies for which bodies like the Reserve Bank are fully competent. It has been held that it would be risky and hazardous for the courts to tread an unknown path and should leave such task to the expert bodies., Recently a three‑Judge Bench of the Supreme Court of India, speaking through one of us (V. Ramasubramanian, Justice), in the case of Internet and Mobile Association of India (supra) observed thus: But as pointed out elsewhere, the Reserve Bank of India is the sole repository of power for the management of the currency, under Section 3 of the RBI Act. The Reserve Bank of India is also vested with the sole right to issue bank notes under Section 22(1) and to issue currency notes supplied to it by the Government of India and has an important role to play in evolving the monetary policy of the country, by participation in the Monetary Policy Committee which is empowered to determine the policy rate required to achieve the inflation target, in terms of the consumer price index.
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Therefore, anything that may pose a threat to or have an impact on the financial system of the country can be regulated or prohibited by the Reserve Bank of India, despite the said activity not forming part of the credit system or payment system. The expression management of the currency appearing in Section 3(1) need not necessarily be confined to the management of what is recognised in law to be currency but would also include what is capable of faking or playing the role of a currency. It can thus be seen that Supreme Court of India has held that the RBI is the sole repository of power for the management of currency. It is also vested with the sole right to issue bank notes and to issue currency notes supplied to it by the Government of India. It has been held that the RBI has an important role to play in evolving the monetary policy of the country., Application of the aforesaid principles to the present case shows that Supreme Court of India has consistently recognised the role assigned to the RBI in management and issuance of currency notes, as well as in evolving monetary policy of the country. We have referred to the aforesaid judgments with regard to the primary status of RBI in dealing with the management and regulation of currency and in evolving the monetary policy of the country. Insofar as the decision to be taken by the Central Government under sub‑section (2) of Section 26 of the RBI Act is concerned, it is to be taken on the recommendation of the Central Board. We therefore find that there is an inbuilt safeguard in sub‑section (2) of Section 26 of the RBI Act inasmuch as the Central Government is required to take a decision on the recommendation of the RBI., As already discussed hereinabove, the RBI has a large contingent of expert advice available to it. It has a pivotal role in issuance and management of all other matters relating to currency and also in evolving monetary policy of the country. We may gainfully refer to the Constitution Bench judgment of Supreme Court of India in the case of Harakchand Ratanchand Banthia and others wherein, though the Constitution Bench found clause (b) sub‑section (2) of Section 5 of the Gold (Control) Act, 1968 to be unconstitutional on the ground of excessive delegation, it upheld the provisions of clause (a) sub‑section (2) of Section 5 of the Gold (Control) Act, 1968, finding that there was an inbuilt safeguard inasmuch as the Administrator was required to take a decision after consultation with the RBI., For considering the question as to whether the RBI Act provides guidance to the delegatee or not, the entire scheme, object and the purpose of the Act have to be taken into consideration. The guidance could be sought from the express provision empowering delegation, the other provisions of the statute, the preamble, the scheme or even the very subject matter of the statute. If guidance can be found in any part of the Act, the delegation has to be held valid. A great amount of latitude has to be given in such matters. It has been consistently held that Parliament and the State Legislatures are not bodies of experts or specialists. They are skilled in the art of discovering the aspirations, expectations and needs of the people they represent. They function best when they concern themselves with general principles, broad objectives and fundamental issues instead of technical and situational intricacies better left to full‑time expert executive bodies and specialist public servants., As already discussed hereinabove, the RBI has been constituted to regulate the issue of bank notes. The RBI is an expert body entrusted with various functions regarding monetary and economic policies. Perusal of the scheme of the RBI Act reveals that it has a primary role in matters pertaining to the management and regulation of currency. We therefore find that there is sufficient guidance to the delegatee when it exercises its powers under sub‑section (2) of Section 26 of the RBI Act, from the subject matter of the statute and the other provisions of the Act. Parliament has provided an inbuilt safeguard, i.e., the recommendation of the RBI. It is equally settled that economic, monetary and fiscal policies are best left to experts possessing requisite knowledge. Both the RBI and the Central Government have contingents of experts in the field, and it will not be proper for Supreme Court of India to enter an area that should be left to the experts., We are of the considered view that there is sufficient guidance in the preamble, scheme and object of the RBI Act. As already discussed, there cannot be a straitjacket formula, and the question of whether excessive delegation has been conferred must be decided on the basis of the scheme, object and purpose of the statute under consideration., Another aspect that needs to be taken into consideration is the nature of the body to which the delegation is made. In the present case, the delegation is made to the Central Government and not to any ordinary body., In the case of Birla Cotton, Spinning and Weaving Mills Delhi, the seven‑Judge Bench of Supreme Court of India held that the delegation was made to an elected body responsible to the people, including taxpayers. It observed that councillors must go for election every four years and that if they behave unreasonably, the inhabitants can remove them at the next election. The Court found this to be a great check on unreasonable councillors and on fixing unreasonable rates of taxation, describing it as a democratic method of bringing to book elected representatives who act unreasonably., In the present case also, the delegation is to the Central Government, i.e., the highest executive body of the country. India has a parliamentary system in which the Government is responsible to Parliament. If the Executive does not act reasonably while exercising delegated legislation, it is accountable to Parliament, whose members are elected representatives of the citizens, providing a democratic method of bringing to book unreasonable elected representatives., Taking into consideration all these factors, we are of the considered view that sub‑section (2) of Section 26 of the RBI Act does not suffer from the vice of excessive delegation., It is urged on behalf of the petitioners that the decision‑making process at both the recommendation stage by the Central Board and the decision stage by the Central Government is flawed because relevant factors were not considered and irrelevant ones were not eschewed. They also contend that, as per the scheme of sub‑section (2) of Section 26 of the RBI Act, the procedure should emanate from the Central Board, not the Central Government. According to the petitioners, the procedure emanated from the Central Government via its letter dated 7 November 2016 advising the Board to convene a meeting and make a recommendation, which was hurriedly convened on 8 November 2016, when the Board recommended demonetisation and, within hours, the decision was announced by the Honourable Prime Minister., It is submitted that, given the hasty manner in which the recommendation was sought by the Central Government, made by the Central Board and then taken by the Cabinet, there was no scope for the Central Board or the Cabinet to consider relevant factors and eschew irrelevant ones. Accordingly, the decision was taken in a patently arbitrary manner and the impugned Notification is liable to be set aside on the ground of patent arbitrariness. The petitioners also contend that the Central Board meeting lacked the quorum required under the 1949 Regulations., Conversely, the respondents submit that sub‑section (2) of Section 26 of the RBI Act requires (i) the recommendation of the Central Board and (ii) the decision of the Central Government, both of which were satisfied in the present case. They further submit that confidentiality and speed are of utmost importance in an action like the present one., The law regarding the scope of judicial review has been crystalised in the case of Tata Cellular. In that case, Supreme Court of India held that the duty of the court is to confine itself to the question of legality, examining whether a decision‑making authority exceeded its powers, committed an error of law, breached natural justice, reached a decision no reasonable tribunal would have reached, or abused its powers. The Court is not to determine whether a particular policy or decision is fair, but only the manner in which those decisions were taken., After referring to various pronouncements on the scope of judicial review, the Court summed up: (1) Modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. (3) The court lacks expertise to correct administrative decisions; substituting its own decision may be fallible. (4) Terms of invitation to tender are not open to judicial scrutiny as they lie in the realm of contract, and decisions to accept tenders are usually made by experts. (5) The Government must have freedom of contract; decisions must be tested by the Wednesbury principle of reasonableness and be free from arbitrariness, bias or mala fides. (6) Quashing decisions may impose heavy administrative burden and unbudgeted expenditure. These principles guide the examination of the present case., Although various authorities are cited regarding the scope of judicial review, it is unnecessary to refer to many judgments. We may refer to the judgment of Supreme Court of India in Rashmi Metaliks Limited and Another v. Kolkata Metropolitan Development Authority and Others, where the Court deprecated citing several decisions when the law is already covered by Tata Cellular., Our enquiry, therefore, is restricted to examining the decision‑making process on the limited grounds laid down in Tata Cellular., Since the issue also relates to monetary and economic policy, we are guided by other pronouncements of Supreme Court of India., We may refer to observations of the Seven‑Judge Bench in M/s. Prag Ice & Oil Mills and Another v. Union of India: The Court does not sit in judgment over matters of economic policy, which must be left to the Government. Such matters involve predictions where even experts can err, and courts cannot decide them without expert aid., In R.K. Garg v. Union of India and Others, a Constitution Bench of Supreme Court of India observed that laws relating to economic activities should be viewed with greater latitude than those touching civil rights. The legislature should have flexibility to deal with complex problems, and courts should give judicial deference to legislative judgment in economic regulation., In Shri Sitaram Sugar Company Limited and Another v. Union of India and Others, the Court held that judicial review is not concerned with economic policy. The court does not substitute its judgment for that of the legislature and only examines whether factual findings are reasonably based on evidence and consistent with law, not the wisdom of the policy., Recently, Supreme Court of India in Small Scale Industrial Manufacturers Association (Registered) v. Union of India and Others considered the scope of judicial review of economic and fiscal regulatory measures. The Court observed that decisions on financial reliefs and packages are exclusively within the province of the Central Government and RBI, and such matters do not ordinarily attract judicial review unless there is mala fides, arbitrariness or unfairness. Judges lack expertise in these areas and should intervene only on grounds of arbitrariness or violation of law., The Court further observed that it would not interfere with any government opinion based on relevant facts, circumstances or expert advice, intervening only when the executive action is arbitrary or violative of constitutional, statutory or other provisions. It is settled that the Court gives large leeway to the executive and legislature in economic policy, as reflected in judgments such as P.T.R. Exports (Madras) Pvt. Ltd. v. Union of India and Bajaj Hindustan Limited v. Sir Shadi Lal Enterprises Limited., It is not the function of Supreme Court of India or any other Court to sit in judgment over matters of economic policy; such matters must be left to the Government, as even experts can err and differ. Courts cannot be expected to decide them without expert assistance., Therefore, while exercising judicial review in a matter like the present one, the scope of interference is narrower. Applying the principles laid down in the aforesaid judgments, we must examine whether the decision‑making process is flawed. Our inquiry is limited to whether there is illegality in the process, whether the decision‑makers understood the law correctly, and whether the process is vitiated by irrationality under the Wednesbury principles, including any procedural impropriety., The learned Senior Counsel for the petitioners submitted that unless the letter dated 7 November 2016, the Minutes of the Central Board meeting dated 8 November 2016 and the Cabinet Note dated 8 November 2016 are perused, the Court cannot determine whether the Central Board and the Central Government considered relevant factors and eschewed irrelevant ones. The Court directed the Union of India and the RBI to produce the records, which were subsequently produced., We have scrutinised the entire record: the communication dated 7 November 2016 addressed by the Secretary, Department of Economic Affairs, Ministry of Finance to the Governor of the RBI; the Minutes of the Central Board meeting dated 8 November 2016; the RBI recommendations dated 8 November 2016; and the Cabinet Note for the meeting held on 8 November 2016., A perusal of the communication dated 7 November 2016 reveals that the Government of India expressed concern about the infusion of Fake Indian Currency Notes (FICN) and generation of black money. It pointed out that FICN infusion is concentrated in the two highest denominations, Rs.500 and Rs.1000, and that the impact on the economy is very adverse. The communication references the 2012 White Paper on Black Money, noting that cash facilitates black money because cash transactions leave no audit trail, and that a parallel shadow economy corrodes the vitals of the country's economy., The communication further refers to the constitution of a Special Investigation Team (SIT) headed by two former Judges of Supreme Court of India, which made strong observations against the cash economy, and to steps taken by the Government to reduce black money. It advises the Central Board to consider making necessary recommendations and requests the RBI to prepare a draft scheme to implement the measures in a non‑disruptive manner with minimal inconvenience to the public and businesses., We have also perused the Minutes of the 561st Meeting of the Central Board of Directors of the RBI held on 8 November 2016. The Minutes show that the 7 November communication was placed before the Board by the Deputy Governor, followed by an elaborate discussion. The Board considered the pros and cons, noted the opportunity to further financial inclusion by promoting electronic payments, and recognised that the matter had been under discussion between the Central Government and the RBI for six months, during which most issues were considered., After detailed deliberations, the Central Board resolved to recommend withdrawal of legal tender of bank notes of Rs.500 and Rs.1000, including existing and older series. The Deputy Governor, via a communication dated 8 November 2016, informed the Secretary, Department of Economic Affairs, Ministry of Finance of these recommendations and enclosed a draft implementation scheme., We have also perused the Cabinet Note dated 8 November 2016. The Note contains data from the Economic Surveys for 2014‑15 and 2015‑16, the Intelligence Bureau report on FICN infusion and black money, the 2012 White Paper on Black Money, the SIT report, and the RBI recommendation., Upon perusal of the material on record, we are of the considered view that the Central Board took into account the relevant factors while recommending withdrawal of legal tender of Rs.500 and Rs.1000 notes. All relevant factors were also placed before the Cabinet when it decided to demonetise. A draft scheme to implement demonetisation in a non‑disruptive manner with minimal inconvenience was prepared by the RBI and considered by the Cabinet. Consequently, the contention that the decision‑making process ignored relevant factors is without substance., Regarding the petitioners' claim that there was no quorum as required under the 1949 Regulations, affidavits of the RBI dated 15 November 2022 and 19 December 2018 categorically state that the procedure under sub‑section (2) of Section 26 of the RBI Act read with Regulations 8 and 10 of the 1949 Regulations was duly followed., The Minutes of the Central Board meeting show that eight Directors were present, exceeding the quorum requirement of four Directors, of whom at least three must be nominated under Section 8(1)(b), 8(1)(c) or Section 12(4) of the RBI Act. An affidavit filed on 6 December 2022 specifically averred that the 561st meeting held on 8 November 2016 had the Governor, two Deputy Governors, one director nominated under Section 8(1)(b), two directors nominated under Section 8(1)(c) and two directors nominated under Section 8(1)(d) present, satisfying the quorum., In that view, the contention that the 8 November 2016 Central Board meeting lacked quorum is without substance., The next submission is that the procedure under sub‑section (2) of Section 26 of the RBI Act is breached because the proposal emanated from the Central Government, whereas the provision requires the proposal to emanate from the Central Board. The contention is that, since the Central Government must act on the Central Board's recommendation, the proposal should originate from the Central Board., As already discussed, the RBI has a pivotal role in monetary and economic policies, particularly in the management and regulation of currency. Sections 22, 24 and 26 of the RBI Act show that in matters of currency, the Central Government acts on the Central Board's recommendation. While the final say on economic and monetary policy rests with the Central Government, it must rely on the RBI's expert advice. The RBI and the Central Government cannot operate in isolated boxes; interaction and consultation are essential in important matters of economic and monetary policy.
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As already discussed hereinabove, the record would reveal that the matter was under active consideration for a period of six months between the Reserve Bank of India and the Central Government. As such, merely because the Central Government has advised the Central Board to consider recommending demonetisation and that the Central Board, on the advice of the Central Government, has considered the proposal for demonetisation and recommended it and, thereafter, the Central Government has taken a decision, in our view, cannot be a ground to hold that the procedure prescribed under Section 26 of the Reserve Bank of India Act was breached. The two requirements of sub‑section (2) of Section 26 of the Reserve Bank of India Act are recommendation by the Central Board; and the decision by the Central Government. As already discussed hereinabove, both the Central Board while making recommendation and the Central Government while taking the decision, have taken into consideration all the relevant factors., The dictionary meaning of the word recommend is to advise as to a course of action, or to praise or commend. In P. Ramanatha Aiyar's Law Lexicon, the meaning of the word recommendation is a statement expressing commendation or a message of this nature. The word recommendation, therefore, will have to be construed in the context in which it is used. Reference in this respect would be made to the judgments of the Supreme Court of India in the cases of V.M. Kurian v. State of Kerala and others and Manohar s/o Manikrao Anchule v. State of Maharashtra and another., The power to be exercised by the Central Government under sub‑section (2) of Section 26 of the Reserve Bank of India Act is for effecting demonetisation. The said power has to be exercised on the recommendation of the Central Board. As already discussed hereinabove, the Reserve Bank of India has a pivotal role in the matters of monetary policy and issuance of currency. The scheme mandates that before the Central Government takes a decision with regard to demonetisation, it would be required to consider the recommendation of the Central Board. We find that, in the context in which it is used, the word recommendation would mean a consultative process between the Central Board and the Central Government., In our view, therefore, the enquiry would be limited as to whether there was an effective consultation between the Central Government and the Central Board before the decision was taken. Reference in this respect would be made to the following observations of the Supreme Court of India in the case of State of Gujarat and another v. Justice R.A. Mehta (Retired) and others: In State of Gujarat v. Gujarat Revenue Tribunal Bar Association, this Court held that the object of consultation is to render its process meaningful so that it may serve its intended purpose. Consultation requires the meeting of minds between the parties that are involved in the consultative process on the basis of material facts and points in order to arrive at a correct or at least a satisfactory solution. If a certain power can be exercised only after consultation such consultation must be conscious, effective, meaningful and purposeful. To ensure this, each party must disclose to the other all relevant facts for due deliberation. The consultee must express his opinion only after complete consideration of the matter on the basis of all the relevant facts and quintessence. Consultation may have different meanings in different situations depending upon the nature and purpose of the statute. (See also Union of India v. Sankalchand Himatlal Sheth, State of Kerala v. A. Lakshmikutty, High Court of Judicature of Rajasthan v. P.P. Singh, Union of India v. Kali Dass Batish, Andhra Bank v. Andhra Bank Officers and Union of India v. Madras Bar Association). In Chandramouleshwar Prasad v. Patna High Court, this Court held that consultation or deliberation can neither be complete nor effective before the parties thereto make their respective points of view known to the other or others and discuss and examine the relative merits of their views. If one party makes a proposal to the other, who has a counter‑proposal in mind which is not communicated to the proposer, a direction issued to give effect to the counter‑proposal without any further discussion with respect to such counter‑proposal with the proposer cannot be said to have been issued after consultation., As such, the enquiry would be limited to find out whether both the Central Board and the Central Government had made their respective points of view known to each other and discussed and examined the relative merits of their views. It will have to be considered whether each of the parties had disclosed to the other all relevant facts and factors for due deliberation, or not. The limited enquiry would be whether the recommendation by the Central Board was made after complete consideration of the matter on the basis of all the relevant facts and material before it, or not., As already discussed hereinabove, the record itself reveals that the Reserve Bank of India and the Central Government were in consultation with each other for a period of six months before the impugned notification was issued. The record would also reveal that all the relevant information was shared by both the Central Board as well as the Central Government with each other. As such, it cannot be said that there was no conscious, effective, meaningful and purposeful consultation., Another submission that is being made is that the objective with which the impugned notification was issued, i.e., to combat fake currency, black money and parallel financing, has utterly failed. It is submitted that immediately after demonetisation was effected, currency notes of new series have been seized. It is also submitted that the fake currency is also in vogue. New series of notes have been seized from terrorists. Per contra, it is submitted that the long‑term benefits of demonetisation have been enormous, direct and indirect. The learned Attorney General has placed on record an elaborate list of the same to which we have already referred to in earlier paragraphs., However, we do not wish to go into the question as to whether the object with which demonetisation was effected is served or not or as to whether it has resulted in huge direct and indirect benefits or not. We do not possess the expertise to go into that question and it is best that it should remain in the domain of the experts., The question is succinctly answered by the Supreme Court of the United States in the case of Metropolis Theater Company et al., Plffs. In Err., v. City of Chicago and Ernest J. Magerstadt, which reads thus: The attack of complainants (we so call plaintiffs in error) is upon the classification of the ordinance. It is contended that the purpose of the ordinance is to raise revenue, and that its classification has no relation to such purpose, and therefore is arbitrarily discriminatory, and thereby offends the 14th Amendment of the Constitution of the United States. The character ascribed to the ordinance by the Supreme Court of the United States is not without uncertainty. But we may assume, as complainants assert, that the Court considered the ordinance as a revenue measure only. The Court said: \The ordinance may be sustainable under the taxing power alone, without reference to its reasonableness as a regulatory measure.\ And, regarding it as a revenue measure, complainants attack it as unreasonable in basing its classification upon the price of admission of a particular theater, and not upon the revenue derived therefrom; and to exhibit the discrimination which is asserted to result, a comparison is made between the seating capacity of complainants' theaters and the number of their performances within given periods, and the theaters of others in the same respects, and the resulting revenues. But these are accidental circumstances and dependent, as the Supreme Court of the United States said, upon the advantages of the particular theater or choice of its owner, and not determined by the ordinance. It will immediately occur upon the most casual reflection that the distinction the theater itself makes is not artificial, and must have some relation to the success and ultimate profit of its business. In other words, there is natural relation between the price of admission and revenue, some advantage, certainly, that determines the choice. The distinction obtains in every large city of the country. The reason for it must therefore be substantial; and if it be so universal in the practice of the business, it would seem not unreasonable if it be adopted as the basis of governmental action. If the action of government have such a basis it cannot be declared to be so palpably arbitrary as to be repugnant to the 14th Amendment. This is the test of its validity, as we have so many times said. We need not cite the cases. It is enough to say that we have tried, so far as that Amendment is concerned, to declare in words, and the cases illustrate by examples, the wide range which legislation has in classifying its objects. To be able to find fault with a law is not to demonstrate its invalidity. It may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. What is best is not always discernible; the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void under the 14th Amendment; and such judgment cannot be pronounced of the ordinance in controversy. Quong Wing v. Kirkendall, 223 U.S. 59, 56 L. ed. 350, 32 Sup. Ct. Rep. 192. [emphasis supplied], It has been held that if the action of the government has a basis with the objectives to be achieved, it cannot be declared as palpably arbitrary. It has been held that, to be able to find fault with a law is not to demonstrate its invalidity. It has been held that the result of the act may seem unjust and oppressive, yet be free from judicial interference. The problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific. But even such criticism should not be hastily expressed. It has been held that what is best is not always discernible, and the wisdom of any choice may be disputed or condemned. It has been held that mere errors of government are not subject to judicial review. It is only the palpably arbitrary exercises which can be declared void., We may gainfully refer to the following observations of the Supreme Court of India in the case of R.K. Garg, wherein this Court observed that it should constantly remind itself of what the Supreme Court of the United States said in the case of Metropolis Theater Company: The Court would not have the necessary competence and expertise to adjudicate upon such an economic issue. The Court cannot possibly assess or evaluate what would be the impact of a particular immunity or exemption and whether it would serve the purpose in view or not. There are so many imponderables that would enter into the determination that it would be wise for the Court not to hazard an opinion where even economists may differ. The Court must while examining the constitutional validity of a legislation of this kind, be resilient, not rigid, forward looking, not static, liberal, not verbal and the Court must always bear in mind the constitutional proposition enunciated by the Supreme Court of the United States in Munn v. Illinois, namely, that courts do not substitute their social and economic beliefs for the judgment of legislative bodies. The Court must defer to legislative judgment in matters relating to social and economic policies and must not interfere, unless the exercise of legislative judgment appears to be palpably arbitrary., The Constitution Bench holds that the Court would not have the necessary competence and expertise to adjudicate upon such an economic issue. The Court cannot possibly assess or evaluate what would be the impact of a particular immunity or exemption and whether it would serve the purpose in view or not. It has been held that it would be wise for the Court not to hazard an opinion where even economists may differ. It has been held that while examining the constitutional validity of such a legislation, the Court must be resilient, not rigid, forward looking, not static, liberal, not verbal., We are, therefore, of the considered view that the Court must defer to legislative judgment in matters relating to social and economic policies and must not interfere unless the exercise of executive power appears to be palpably arbitrary. The Court does not have necessary competence and expertise to adjudicate upon such economic issues. It is also not possible for the Court to assess or evaluate what would be the impact of a particular action and it is best left to the wisdom of the experts. In such matters, it will not be possible for the Court to assess or evaluate what would be the impact of the impugned action of demonetisation. The Court does not possess the expertise to do so. As already discussed hereinabove, on one hand, the petitioners urged that there has been an adverse effect upon the economy and on the other hand, the learned Attorney General had given a long list of direct and indirect advantages of demonetisation. In any case, mere errors of judgment by the government seen in retrospect is not subject to judicial review. In such matters, legislative and quasi‑legislative authorities are entitled to a free play, and unless the action suffers from patent illegality, manifest or palpable arbitrariness, the Court should be slow in interfering with the same., Another contention in this regard is that, on account of a hasty decision by the Central Government, citizens had to suffer at large, that many people were required to stand in the queues for hours, that many citizens were deprived of their meals, and that many citizens lost their jobs., As already discussed hereinabove, the Central Government had advised the Central Board to draft a scheme to implement demonetisation in a non‑disruptive manner with as little inconvenience to the public and business entities as possible. Accordingly, a draft scheme was also submitted by the Central Board along with its recommendations for demonetisation. It is stated in the affidavit that the Reserve Bank of India has subsequently issued relaxations from time to time taking into consideration the difficulties of the people and availability of the new notes. No doubt that on account of demonetisation, the citizens were faced with various hardships. However, we may again gainfully refer to the following observations of the Supreme Court of India in the case of R.K. Garg: The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. If any crudities, inequities or possibilities of abuse come to light, the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues., Therefore, while adjudging the illegality of the impugned notification, we would have to examine on the basis as to whether the objectives for which it was enacted has nexus with the decision taken or not. If the impugned notification had a nexus with the objectives to be achieved, then, merely because some citizens have suffered through hardships would not be a ground to hold the impugned notification to be bad in law., In this respect, we may gainfully refer to the following observations of the Supreme Court of India in the case of K.M. Sonia Bhatia v. State of U.P. and Others: Lastly, it was urged by Mr Kacker that this is an extremely hard case where the grandfather of the donee wanted to make a beneficial provision for his granddaughter after having lost his two sons in the prime of their life due to air‑crash accidents while serving in the Air Force. It is true that the District Judge has come to a clear finding that the gift in question is bona fide and has been executed in good faith but as the gift does not fulfil the other ingredients of the section, namely, that it is not for adequate consideration, we are afraid, however laudable the object of the donor may have been, the gift has to fail because the genuine attempt of the donor to benefit his granddaughter seems to have been thwarted by the intervention of sub‑section (6) of Section 5 of the Act. This is undoubtedly a serious hardship but it cannot be helped. We must remember that the Act is a valuable piece of social legislation with the avowed object of ensuring equitable distribution of the land by taking away land from large tenure‑holders and distributing the same among landless tenants or using the same for public utility schemes which is in the larger interest of the community at large. The Act seems to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. If in this process a few individuals suffer severe hardship that cannot be helped, for individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr., Though, the Court found that the Act caused a serious hardship, it held that the Act is a valuable piece of social legislation. It held that the Act was enacted to implement one of the most important constitutional directives contained in Part IV of the Constitution of India. It further observed that, if in this process, a few individuals suffer severe hardship, that cannot be helped. It further held that individual interests must yield to the larger interests of the community or the country as indeed every noble cause claims its martyr., In any case now, the action which was taken by the Central Government by the impugned notification has been validated by the 2016 Ordinance and which has fructified in the 2017 Act. The Central Government is answerable to the Parliament and the Parliament, in turn, represents the will of the citizens of the country. The Parliament has therefore put its imprimatur on the executive action. This is apart from the fact that we have not found any flaw in the decision‑making process as required under sub‑section (2) of Section 26 of the Reserve Bank of India Act., The decision‑making process is also sought to be attacked on the ground that the decision was taken in a hasty manner. We find that the hasty argument would be destructive of the very purpose of demonetisation. Such measures undisputedly are required to be taken with utmost confidentiality and speed. If the news of such a measure is leaked out, it is difficult to imagine how disastrous the consequences would be., It will be interesting to note again from Volume III of the History of the Reserve Bank of India that, on 14th January 1978, one R. Janakiraman, a senior official in the Reserve Bank of India was asked by some officers of the Government of India to come immediately to Delhi for some urgent work. When he asked for what purpose he was called, he was told that the matters relating to exchange control need to be discussed. He, however, took along with him one M. Subramaniam, a senior official of the Exchange Control Department. On reaching Delhi, he was informed that the Government had decided to demonetise the high denomination notes and was required to draft the necessary Ordinance within twenty‑four hours. During the said period, no communication was allowed with anyone including the Bank's central office at Bombay. R. Janakiraman and M. Subramaniam made a request for the 1946 Ordinance on demonetisation to get an idea how it was to be drafted, which request was acceded to by the Finance Ministry. The draft Ordinance was completed on schedule. It was finalised and sent for signature of the President of India in the early hours of 16th January 1978 and on the same day, the announcement to that effect was made on All India Radio's news bulletin at 09.00 a.m., It can thus be seen that confidentiality and secrecy in such sort of measures is of paramount importance. When demonetisation was being done in the year 1978, R. Janakiraman, who had drafted the Ordinance, was not permitted to communicate with anyone including the Bank's central office at Bombay. It would thus show as to what great degree of confidentiality was maintained. In any case, the material placed on record would show that the Reserve Bank of India and the Central Government were in consultation with each other for at least a period of six months preceding the action., We, therefore, find that the impugned notification dated 8th November 2016 does not suffer from any flaws in the decision making process., It is sought to be urged on behalf of the petitioners that before taking such a drastic measure, which caused enormous hardship to a number of citizens, the government ought to have found out as to whether there was an alternate course of action which could have resulted in lesser hardship to the citizens. In this respect, reliance is placed on the judgment of the Supreme Court of India in the case of Internet and Mobile Association of India and K.S. Puttaswamy (Retired) and another (Aadhaar)., In the case of Internet and Mobile Association of India, the Reserve Bank of India had issued a directive to the entities regulated by the Reserve Bank of India (i) not to deal with or provide services to any individual or business entities dealing with or settling virtual currencies and (ii) to exit the relationship, if they already have one, with such individuals/business entities, dealing with or settling virtual currencies., The said action came to be challenged by a writ petition filed under Article 32 of the Constitution of India. The challenge was on several grounds, including the ground of proportionality. Though the Court did not find favour with the other grounds raised on behalf of the petitioners therein, it held that the concern of the Reserve Bank of India is and ought to be about the entities regulated by it. It found that, till date, the Reserve Bank of India had not come out with a stand that any of the entities regulated by it, namely, the nationalised banks, scheduled commercial banks, cooperative banks, NBFCs had suffered any loss or adverse effect directly or indirectly, on account of the interface that the virtual currency exchanges had with any of them. The Court held that there must have been at least some empirical data about the degree of harm suffered by the regulated entities. The Court, therefore, while upholding the power of the Reserve Bank of India to take pre‑emptive action, upon testing the proportionality of the measure, found that in the absence of the Reserve Bank of India pointing out at least some semblance of any damage suffered by its regulated entities, the impugned measure was disproportionate., Four‑pronged test of proportionality: The Constitution Bench of the Supreme Court of India in the case of Modern Dental College and Research Centre, while considering a balance between the right under Article 19(1)(g) and the reasonable restrictions under clause (6) of Article 19 of the Constitution of India, observed thus: Thus, while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as doctrine of proportionality. Jurisprudentially, proportionality can be defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub‑components of proportionality which need to be satisfied, a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (proportionality stricto sensu or balancing) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right., The Constitution Bench held that while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is balancing of the fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. The Court refers to four tests of proportionality which need to be satisfied. The first one is that it should be designated for a proper purpose. The second one is that the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose. The third one is that the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation. Finally, the fourth one is that there needs to be a proper relation between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. The Court held that there has to be a balance between a constitutional right and public interest. It held that a constitutional licence to limit those rights is granted where such a limitation will be justified to protect public interest or the rights of others., It is pertinent to note that in the case of Modern Dental College and Research Centre, the Court was considering the validity of the Act and the Rules which regulated primarily the admission of the students in postgraduate courses in private educational institutions and the provisions made thereunder. Applying the test of proportionality, the Court held that the larger public interest warrants such a measure.
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It held that, having regard to the malpractices which are noticed in the Common Entrance Test (CET) conducted by such private institutions themselves, it is, undoubtedly, in the larger interest and welfare of the student community to promote merit and excellence and to curb malpractices. Supreme Court of India held that the impugned provisions which may amount to restrictions on the right of the appellants therein to carry on their occupation are clearly reasonable and satisfy the test of proportionality., The proportionality doctrine is sought to be placed in service on the ground that in the case of Jayantilal Ratanchand Shah (supra), Supreme Court of India held the bank notes to be property and as such, the impugned Notification imposed unreasonable restrictions, violative of Article 300‑A of the Constitution of India. The four‑pronged test culled out by Aharon Barak, former Chief Justice of the Supreme Court of Israel, has been reproduced in the case of Modern Dental College and Research Centre (supra)., The impugned Notification has been issued with an objective to meet the following three concerns: Fake currency notes of the specified bank notes have been largely in circulation and it has been found to be difficult to easily identify genuine bank notes from the fake ones; high denomination bank notes were used for storage of unaccounted wealth which was evident from the large cash recoveries made by law enforcement agencies; fake currency is being used for financing subversive activities such as drug trafficking and terrorism, causing damage to the economy and security of the country. For the purpose of achieving these objectives, the Central Government, on the recommendations of the Central Board, took a decision to demonetize the bank notes of denominational value of Rs 500 and Rs 1000. Assuming that holding bank notes is a right under Article 300‑A of the Constitution of India, the limitation that is imposed is designated for a proper purpose. By no stretch of imagination could it be said that the aforesaid three purposes, i.e., elimination of fake currency, black money and terror financing are not proper purposes. As such, the first test is satisfied., The second test is whether the measure undertaken to effectuate such a limitation is rationally connected to the fulfilment of that purpose – the nexus test. The purpose of demonetisation was to eliminate the fake currency notes, black money, drug trafficking and terror financing. Demonitising high denomination bank notes of Rs 500 and Rs 1000 has a reasonable nexus with those purposes. We find that there is a reasonable nexus between the measure of demonetisation and the aforesaid purposes of addressing issues of fake currency, black money, drug trafficking and terror financing. As such, the second test stands satisfied., Insofar as the third test is concerned, it is required to be examined whether the measure undertaken is necessary in that there are no alternative measures that may similarly achieve the same purpose with a lesser degree of limitation. As held in the case of M.R.F. Ltd. v. Inspector Kerala Government and Others, to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case. What measure is required to meet the aforesaid objectives is exclusively within the domain of the experts. The Reserve Bank of India, as already held, plays a material role in economic and monetary policy and issues relating to management and regulation of currency. The Central Government is the best judge since it has all the inputs with regard to fake currency, black money, terror financing and drug trafficking. Unless the said discretion has been exercised in a palpably arbitrary and unreasonable manner, it will not be possible for Supreme Court of India to interfere with the same., In any case, what alternate measure could have been undertaken with a lesser degree of limitation is very difficult to define. Whether Supreme Court of India possesses an expertise to decide whether demonetisation of only Rs 500 denomination notes ought to have been done or only Rs 1000 denomination notes, or whether particular series of the bank notes ought to have been demonetised, are areas purely within the domain of the experts and beyond the arena of judicial review., The fourth test concerns the proper relation between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right. It cannot be said that there is no proper relation between the importance of curbing the menace of fake currency, black money, drug trafficking and terror financing on one hand and demonetising the Rs 500 and Rs 1000 notes, thereby imposing restriction on the use of demonetised currency, on the other hand. By demonetisation, the right vested in the notes was not taken away. The only restrictions were with regard to exchange of old notes with the new notes, which were gradually relaxed from time to time. Deposit of the demonetised notes in banks was permitted; a citizen with a Know Your Customer compliant bank account could deposit any amount and receive the full value of legitimate currency. There was no restriction on non‑cash transactions such as debit card, credit card, net banking, online transactions etc. The argument that the right to property was sought to be taken away is without substance. Even if there were reasonable restrictions on the said right, the restrictions were in the public interest of curbing evils of fake currency, black money, drug trafficking and terror financing. Applying the four‑pronged test, the doctrine of proportionality is fully satisfied., In reliance on the judgment of the Constitution Bench of Supreme Court of India in the case of K.S. Puttaswamy (Retired) and another (Aadhaar) (supra), the Court observed that making the requirement of Aadhaar compulsory for all persons in the name of checking money laundering or black money was grossly disproportionate. Those observations were made in the factual context of that case and are not applicable to the facts of the present case. The present case, after applying the four‑pronged test of proportionality, the impugned notification cannot be struck down., In any case, Supreme Court of India holds that there is a direct and proximate nexus between the restrictions imposed and the objectives sought to be achieved. As held by Supreme Court of India in the case of M.R.F. Ltd. (supra), if there is a direct nexus between the restrictions and the object of the action, then a strong presumption in favour of the constitutionality of the action naturally arises. Accordingly, the impugned notification dated 8 November 2016 does not violate the principle of proportionality and is not liable to be struck down on that ground., It is urged that the period provided for exchange of old notes with the new notes under the impugned Notification is unreasonable. Under the 1978 Act, the Ordinance was notified on 16 January 1978, which transformed into the Act on 30 March 1978. Section 3 of the 1978 Act provides that all high denomination bank notes, notwithstanding anything contained in Section 26 of the Reserve Bank of India Act, ceased to be legal tender in payment or on account at any place. Section 7 of the 1978 Act required every person desiring to tender for exchange demonetised notes to submit a declaration giving the particulars not later than 19 January 1978., Section 8 of the 1978 Act provided that a person who failed to apply for exchange of any demonetised notes within the time provided under Section 7 could tender the notes together with a declaration and a statement explaining the reasons for failure. If the Reserve Bank of India was satisfied with the genuineness of the reasons, it could pay the value of the notes in the manner specified in Section 7(4). An appeal was provided before the Central Government against the refusal of the Reserve Bank of India to pay the value of the notes. Thus, under the 1978 Act, a three‑day period was provided for exchanging the demonetised notes, which could be further extended by five days where the Reserve Bank was satisfied with the reasons for delay., A challenge was raised on the ground that the period was unreasonable and violative of fundamental rights. Rejecting the contention, the Constitution Bench in the case of Jayantilal Ratanchand Shah observed that the time prescribed for exchange of high denomination bank notes under Sections 7 and 8 of the Demonetisation Act was necessary to prevent circulation of the notes after they ceased to be legal tender on 16‑1‑1978. The limited period ensured that holders could exchange their notes while preventing further transfer of the notes to others. The provisions of Sections 7 and 8, together with the power under Section 7(7) to extend the period, were held to be reasonable and not violative of fundamental rights., In the present case, the period for exchanging any amount of specified bank notes and depositing the same in a Know Your Customer compliant bank account without any limit or hindrance was 52 days, whereas the period in Jayantilal Ratanchand Shah was only three days. In view of the Constitution Bench’s holding, the 52‑day period cannot be construed as unreasonable, unjust or violative of fundamental rights. Accordingly, the period provided for exchange of notes under the impugned Notification dated 8 November 2016 is not unreasonable., It is urged by Shri Divan that the Reserve Bank of India has independent power under sub‑section (2) of Section 4 of the 2017 Act. For appreciating the contention, reference is made to Sections 3 and 4 of the 2017 Act. Section 3 provides that specified bank notes which have ceased to be legal tender by the notification of the Government of India dated 8 November 2016 shall cease to be liabilities of the Reserve Bank and shall cease to have the guarantee of the Central Government. Section 4(1) entitles certain persons holding specified bank notes on or before 8 November 2016 to tender them within a grace period with appropriate declarations. Section 4(2) empowers the Reserve Bank of India, if satisfied that the reasons for failure to deposit the notes within the specified period are genuine, to credit the value of the notes in the person’s Know Your Customer compliant bank account. Section 4(3) provides an appeal mechanism to any person aggrieved by the Reserve Bank’s refusal to credit the value of the notes., The Constitution Bench of Supreme Court of India in the case of Popatlal Shah v. State of Madras observed that to ascertain legislative intent, all constituent parts of a statute must be taken together and each word, phrase or sentence considered in the light of the general purpose and object of the Act., The observations of Supreme Court of India in Peerless General Finance and Investment Company Limited (supra) state that interpretation must depend on the text and the context; both are the bases of interpretation. A statute is best interpreted when its purpose is ascertained, reading it first as a whole and then section by section, clause by clause, phrase by phrase and word by word. No part of a statute and no word of a statute can be construed in isolation., The purpose of the 2017 Act is to extinguish the liabilities of the specified bank notes which have ceased to be legal tender with effect from 9 November 2016, thereby giving clarity and finality to the liabilities of the Reserve Bank of India and the Central Government. Section 4 of the 2017 Act provides a grace period for genuine cases. Section 5 prohibits holding, transferring or receiving specified bank notes. Sections 6 and 7 are penal provisions for contravention of Sections 4 and 5 respectively., It is clear that, although the impugned Notification and Section 3 of the 2017 Act cause demonetised notes to cease to be legal tender and liabilities of the Reserve Bank, Section 4 provides a window for tendering the notes. Clause (i) of Section 4(1) deals with a citizen of India who makes a declaration that he was outside India between 9 November 2016 and 30 December 2016, subject to conditions specified by notification of the Central Government. Clause (ii) empowers the Central Government to issue a notification for persons holding specified bank notes to tender them within the grace period for reasons specified therein. Sub‑section (2) requires the Reserve Bank of India, after verification, to credit the value of the notes in a Know Your Customer compliant bank account if the reasons for failure to deposit are genuine. Sub‑section (3) provides an appeal to the Central Board of the Reserve Bank., Shri Divan and various other learned counsel contended that genuine cases existed where persons could not deposit the demonetised notes within the specified period, and that the impugned Notification caused hardship. They urged Supreme Court of India to either declare the Notification arbitrary or direct the Central Government to exercise powers under Section 4(1)(ii) of the 2017 Act or, under Article 142 of the Constitution of India, to provide a window enabling genuine persons to exchange their demonetised notes. The Court has already referred to the judgment of this Court in the case of Km. Sonia Bhatia., The contention that the impugned Notification is liable to be set aside on the ground that it caused hardship to individuals will not succeed. The individual interests must yield to the larger public interest sought to be achieved by the impugned Notification.
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The procedure envisaged under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934, simply issued a notification in the Gazette of India on 8 November 2016 demonetising all series of bank notes of the denominations of Rs 500 and Rs 1,000. Consequently, approximately 86 per cent of all notes in circulation were demonetised. The serious effects of demonetisation are well known and judicial notice of the same may be taken. Even otherwise, carrying out demonetisation by simply issuing a notification, in the absence of a recommendation made by the Central Board of the Reserve Bank of India, which is a condition precedent, is unlawful. Further, all series of bank notes of Rs 500 and Rs 1,000 could not have been demonetised by a stroke of a pen. The expression “any” in sub‑section (2) of Section 26 of the Act means a particular series of a particular denomination of a bank note, and not all series of all denominations. The petitioner contended that in the instant case, the issuance of the notification demonetising the entire currency of Rs 500 and Rs 1,000 in circulation at the time is unlawful and the exercise of power was erroneous and arbitrary and hence should be declared so., Learned senior counsel emphasized that sub‑section (2) of Section 26 of the Act must be given an interpretation which is legally workable and practicable and the Supreme Court of India ought not give a blanket power to the Central Government to demonetise all currency of a particular denomination, as such action would be contrary to the object envisaged under sub‑section (2) of Section 26 of the Act., Further elaborating on his submission, learned senior counsel for the petitioners contended that the expression “any” ought not be interpreted as “all”, as such an interpretation would be disastrous to the Indian economy and contrary to the true letter and spirit of the Act. He argued that the word “any” means one of the many and not all. Therefore, according to him, any one series of bank notes of a denomination could be demonetised and not all series of notes of a particular denomination or all series of bank notes of all denominations, by issuance of an executive notification. He contended that if the Section is read down, it would be saved from the vice of unconstitutionality; otherwise, the power of the Central Government to demonetise all series of bank notes of all denominations would be arbitrary and an excessive power, which is devoid of any guidance. Such power, if vested with the Central Government, would be contrary to the provisions of the Act. He further contended that exercise of discretion by the Central Government could be only to the extent of demonetisation of particular series of bank notes of any particular denomination, that too on the recommendation of the Central Board of the Reserve Bank of India. Such vast powers to recommend demonetisation of all series of bank notes of any or all denominations cannot also be vested with the Bank., Learned senior counsel Shri Shyam Diwan, appearing for the petitioner Malvinder Singh in Writ Petition (Civil) No. 149 of 2017, submitted that apart from the guarantee given by the Central Government that every bank note is legal tender at any place in India, such notes are also the liabilities of the Issue Department of the Reserve Bank of India under Section 34 of the Act to the extent of an amount equal to the total value of the currency notes of the Government of India and bank notes for the time being in circulation., Learned senior counsel submitted that in the absence of a specific duty with regard to mitigating the long‑lasting effects of demonetisation on the Indian economy, the decision of the Central Government to demonetise about 86.4 % of the total currency in circulation is vitiated on account of manifest arbitrariness., The learned senior counsel further contended that by applying the test of proportionality, the impugned notification dated 8 November 2016 is liable to be set aside., Reliance was placed on K.S. Puttaswamy (Retired) (Aadhaar) v. Union of India (2019) 1 SCC 1 to contend that the classical equality test can be applied to the present case to conclude that the decision of demonetisation had no nexus to the objective sought to be achieved., It was further contended that the circular dated 31 December 2016 is discriminatory, insofar as it prescribed no upper monetary limit applicable to Resident Indians for submission and exchange of Specified Bank Notes, which were declared to have ceased to be legal tender; however, the monetary limit of Rs 25,000 per individual was fixed for Non‑Resident Indians, depending on when the notes were taken out of India in accordance with the Foreign Exchange Management Act Rules. An additional liability was imposed on Non‑Resident Indians as they had to produce a certificate issued by the Indian Customs upon arrival after 30 December 2016, indicating the import of Specified Bank Notes and the details and value of the same., The learned senior counsel brought to the Supreme Court of India's notice an article titled “Using Fast Frequency Household Survey Data to Estimate the Impact of Demonetisation on Employment” authored by Mr. Mahesh Vyas, Centre for Monitoring Indian Economy (2018) to contend that owing to the demonetisation carried out, there was a substantial reduction in employment and employment rates were 12 million lower than they were two months preceding demonetisation. Relying on the article, he submitted that demonetisation resulted in a loss of millions of jobs., Per contra, the Attorney General for India, Shri R. Venkataramani, vehemently countered the arguments of Shri P. Chidambaram, learned senior counsel, by contending that the power vested with the Central Government under sub‑section (2) of Section 26 of the Act is not arbitrary or without guidance. He argued that the power to demonetise any currency note or legal tender is vested with the Central Government and such power is of a wide import and amplitude and the Supreme Court of India may not give an interpretation restricting the said power. He contended that the power vested with the Central Government is exercised by the issuance of a notification in the Gazette of India which is on the basis of a recommendation of the Central Board of the Reserve Bank of India., In this regard, the Attorney General emphasized that earlier demonetisations were carried out in the years 1946 and 1978 by issuance of Ordinances and thereafter converting the said Ordinances into Acts of Parliament. But in the instant case, the demonetisation dated 8 November 2016 was for all series of bank notes of Rs 500 and Rs 1,000 denominations, by the issuance of a Gazette notification, which is perfectly valid in the eyes of law and in accordance with sub‑section (2) of Section 26 of the Act., The Attorney General contended that the impugned Gazette notification was issued having regard to the salient objectives that had to be achieved by the demonetisation of Rs 500 and Rs 1,000 currency notes, which are set out clearly in the notification dated 8 November 2016. The salient objectives of demonetisation in the year 2016 were to eradicate black money, to eliminate fake currency from the Indian economy and to prevent terror funding. He therefore contended that there is no merit in the submissions made by the learned senior counsel appearing for the petitioners as the impugned notification dated 8 November 2016 is in accordance with sub‑section (2) of Section 26 of the Act and therefore is valid., Shri R. Venkataramani, the Attorney General, next submitted that the action taken by way of the impugned notification stands ratified by the 2017 Act and as the executive action has been validated by the will of Parliament, the challenge to the notification would not survive., The Attorney General contended that the word “any” appearing before the words “series of bank notes” in sub‑section (2) of Section 26 of the Act should be construed to mean “all”. He submitted that the argument of the petitioners that the word “any” would not mean “all” is flawed and if the same is accepted, it would permit the Government to issue separate notifications for each series, however, the Government would be prohibited from issuing a common notification for all series., The Attorney General submitted that the word “any” has been used in two places in sub‑section (2) of Section 26 of the Act and the word “any” preceding the phrase “series of bank notes” has to be construed to mean “all” whereas the word “any” preceding the word “denomination” may be construed to be singular or otherwise. He placed reliance on Maharaj Singh v. State of Uttar Pradesh (1977) 1 SCC 155 to contend that the same word used in the same provision twice could be permitted to have a different meaning in each of such usages., The Attorney General contended that the submission made by the petitioners that the powers under sub‑section (2) of Section 26 of the Act have not been exercised in the manner provided therein and that the decision‑making process was flawed on account of patent arbitrariness is not tenable. He submitted that sub‑section (2) of Section 26 of the Act postulates that the Central Government may take a decision to carry out demonetisation pursuant to the recommendation of the Central Board of the Reserve Bank of India and in the present case, there was a recommendation made by the Central Board to the Central Government, recommending demonetisation. Thus, after considering the proposal of the Central Board, the Central Government took the decision to carry out demonetisation. Hence, the procedure as envisaged in sub‑section (2) of Section 26 of the Act was duly complied with., The Attorney General placed reliance on Bajaj Hindustan Limited v. Sir Lal Enterprises Limited (2011) 1 SCC 640 wherein it was observed that economic and fiscal regulatory measures are fields on which judges should encroach upon very warily as judges are not experts in these matters. He submitted that the Reserve Bank of India is an expert body charged with the duty of conceiving and implementing various facets of economic and monetary policy and that there cannot be a straitjacket formula guiding the discharge of its duties. Therefore, it must be allowed to carry out its functions as it deems fit. The Attorney General further placed reliance on Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University, Sirsa (2008) 9 SCC 284 and Secretary and Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity (2010) 3 SCC 640 to contend that it is settled law that courts should not interfere with the opinion of experts., Shri Jaideep Gupta, learned senior counsel for the Reserve Bank of India, contended that the withdrawal of all series of bank notes of the two denominations of Rs 500 and Rs 1,000 was well within the jurisdiction and power conferred upon the Bank and the Central Government under sub‑section (2) of Section 26 of the Act and it is incorrect to say that the process under sub‑section (2) of Section 26 of the Act had not been followed. Thus, the process cannot be criticized on the ground of procedural lapse on part of the Bank or the Central Government., The senior counsel for the Bank further contended that the submission of the petitioners that unless the phrase “any” in sub‑section (2) of Section 26 of the Act is read as “some” or “one”, the power conferred upon the Bank and the Central Government under the said section would be unguided and arbitrary, is without any basis. He submitted that the expression “any” when construed literally refers to one, several or all of a total number. Thus, the expression “any” used in sub‑section (2) of Section 26 of the Act is broad enough to include all, and consequently, the power of the Government under sub‑section (2) of Section 26 of the Act is not limited merely to a specific set or series alone. It was thus contended that sub‑section (2) of Section 26 of the Act is an enabling provision conferring authority on the Central Government to declare that any series of bank notes of any denomination shall cease to be legal tender on the recommendation of the Central Board., The senior counsel for the Bank also submitted that the decision of the Central Board of the Reserve Bank of India to recommend the measure of demonetisation and the decision of the Central Government to accept the recommendation cannot be subject to judicial review. It was further contended that in the sphere of economic policy making, the Wednesbury principles are of little significance and that the proportionality principle can also not be applied for judicial review of economic policy. The senior counsel thus asserted that it is imperative that no restrictions are placed on economic policies formulated by the Bank or by the Central Government. Reliance was placed on Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India (1992) 2 SCC 343 and BALCO Employees Union (Regd.) v. Union of India (2002) 2 SCC 333 to contend that courts cannot interfere with economic policy which is the function of experts., The senior counsel for the Bank further submitted that the contention of the petitioners that the decision‑making process was faulty on account of not following the procedure under sub‑section (2) of Section 26 of the Act is without substance. Shri Jaideep Gupta submitted that the procedure under sub‑section (2) of Section 26 contemplates two things i.e., recommendation of the Central Board and the decision by the Central Government and that in the present case, both the requirements have been duly followed, thus, the argument advanced on behalf of the petitioners does not hold any water., The senior counsel for the Bank placed reliance on Jayantilal Ratanchand Shah v. Reserve Bank of India (1996) 9 SCC 650 to contend that a similar provision providing for a specified time for exchange of notes was found to be valid by a Constitution Bench of this Court while adjudicating on the legality of the 1978 demonetisation. He submitted that the time provided in the present case is similar to the time provided under the 1978 Act and the time period provided in the said act was found to be reasonable, having regard to the purpose sought to be achieved by the said Act. He further submitted that everybody had sufficient opportunity either to deposit the notes in their banks or to exchange the same., The senior counsel for the Bank submitted that demonetisation was carried out in furtherance of national economic interest and the same ought to be given deference. That the inconvenience caused to the public cannot be a ground to challenge the validity of such actions, particularly when prompt and adequate measures were taken by the Bank to mitigate the temporary hardships expected to be caused., The senior counsel for the Bank submitted that the Specified Bank Notes (Cessation of Liabilities) Act, 2017, has given relief to certain categories of persons subject to verification. It was thus contended that individual cases of hardship that have not been provided for in the Specified Bank Notes (Cessation of Liabilities) Act, 2017, cannot be gone into., It was further submitted that Section 8 of the Reserve Bank of India Act, 1934, provides for the composition of the Central Board and sub‑section 1 of Section 4 stipulates that the Central Board shall consist of the following Directors: (i) a Governor and not more than four Deputy Governors appointed by the Central Government; (ii) four Directors nominated by the Central Government, one from each of the four Local Boards as constituted under Section 9; (iii) ten Directors nominated by the Central Government; and (iv) two Government officials nominated by the Central Government. It was submitted that the 561st meeting of the Central Board of the Reserve Bank of India was held on 08 November 2016 at New Delhi and business was transacted therein with the requisite quorum. During the meeting, apart from the Governor and two Deputy Governors, one Director nominated under Section 8(1)(b), two Directors nominated under Section 8(1)(c) and two Directors nominated under Section 8(1)(d) were present. Thus, the requisite quorum of four directors, of whom not less than three directors nominated under Section 8(1)(b) or 8(1)(c) were present for the meeting. Hence, the requisite procedure was duly followed by the Bank in the conduct of the 561st meeting of the Central Board. Other senior counsel as well as counsel and parties‑in‑person have also addressed the Supreme Court of India., History and instances of demonetisation: Before proceeding to consider the rival contentions, it would be useful to delineate the concept of demonetisation and how it has been carried out worldwide as well as in India., In prosaic terms, demonetisation is the process by which a nation's economic unit of exchange loses its legally enforceable validity. Currencies that are terminated through demonetisation are no longer legally considered as a medium of exchange and have no financial value. Demonetisation is therefore the process of eliminating the lawful acceptance status of a monetary unit by withdrawal of certain kinds or denominations of existing currency from circulation. The withdrawn currency may be supplanted with new currency., The French were the first to use the term demonetise in the years between 1850 and 1855. In world history, several instances of demonetisation can be recorded as follows:, a) United States of America: One of the oldest examples of demonetisation may be found in the United States, when the Coinage Act of 1873 ordered the elimination of silver as legal tender in favour of the gold standard. Again, in 1969, to combat black money and restore the economy, President Richard Nixon declared all currencies over $100 to be null. b) Britain: Before 1971, the pound and penny were in circulation; to bring uniformity, the government stopped circulation of old currency in 1971 and introduced coins of 5 and 10 pounds. c) Congo: Mobutu Sese Seko made changes with respect to the currency in circulation in Congo during the nineties. d) Ghana: In 1982, Ghana demonetised notes of the 50 Cedis denomination to tackle tax evasion and excess liquidity. e) Nigeria: Demonetisation was carried out during the government of Muhammadu Buhari in 1984, when Nigeria introduced new currency and banned old notes. f) Myanmar: In 1987, Myanmar's military invalidated around 80 % of the value of money to curb black marketing. g) Russia (formerly USSR): In 1991, in an attempt to combat the parallel economy, 50 and 100 Ruble notes were removed from circulation under the leadership of Mikhail Gorbachev. h) Venezuela: In 2016, the Government of Venezuela demonetised 100 bolívar notes on 11 December 2016 to achieve economic, monetary and price stability. i) Zimbabwe: In 2015, the Zimbabwean government chose to replace the Zimbabwe Dollar with the US Dollar in order to stabilise hyperinflation., History of demonetisation in India: a) The first demonetisation was carried out on 12 January 1946. An Ordinance promulgated by the Government on that date demonetised currency notes of Rs 500, Rs 1,000 and Rs 10,000 which were in circulation, primarily to check the unaccounted hoarding of money, with a directive that they could be exchanged for re‑issued bank notes within ten days. The period of exchange was extended a number of times by both the Bank and the Central Government. By the end of 1947, out of a total of Rs 143.97 crores of high denomination notes, notes worth Rs 134.9 crores had been exchanged. Thus, notes worth Rs 9.07 crores went out of circulation or were not exchanged. It is said that this exercise turned out to be more like a currency conversion drive as the government could not achieve much profit in the cash‑strapped economy at that time., b) The second demonetisation was carried out in 1978, pursuant to the recommendation of the Wanchoo Committee appointed by the Central Government, to recall the re‑introduced Rs 1,000, Rs 5,000 and Rs 10,000 notes entirely from the cash system. The stated objective was to nullify black money supposedly held in high denomination notes. The government demonetised these notes on 16 January 1978 under the High Denomination Bank Notes (Demonetisation) Ordinance, 1978 (No. 1 of 1978) and people were allowed three days to exchange their notes. During this exercise, out of a value of Rs 146 crores of demonetised notes, currency notes of value Rs 124.45 crores were exchanged and a sum of Rs 21.55 crores, or 14.76 % of the demonetised notes, were extinguished., It would be useful at this stage to discuss briefly the Acts of 1946 and 1978 and the impugned demonetisation having regard to sub‑section (2) of Section 26 of the Act., The Ordinance of 12 January 1946 stated that on the expiry of the 12th day of January 1946, all high denomination bank notes shall, notwithstanding anything contained in Section 26 of the Act, cease to be legal tender in payment or on account at any place in British India. A provision was made for the exchange of the high denomination bank notes which had ceased to be legal tender, with bank notes of the denomination value of Rs 100 which continued to be legal tender., The High Denomination Bank Notes (Demonetisation) Act, 1978 was enacted in public interest and provided demonetisation of certain high denomination bank notes and for matters connected therewith or incidental thereto. The Act defined a high denomination bank note to be a bank note of the denomination value of Rs 1,000, Rs 5,000 or Rs 10,000 issued by the Reserve Bank of India immediately before the commencement of the Act. Section 3 of the Act stated that on the expiry of the 16th day of January 1978, all high denomination bank notes shall, notwithstanding anything contained in Section 26 of the Act, cease to be legal tender., As noted earlier, the previous demonetisations were not carried out on the strength of sub‑section (2) of Section 26 of the Act as both legislations categorically stated that the demonetisation was notwithstanding anything contained in Section 26 of the Act. Under the 1978 Act, one of the objects of demonetisation of high denomination bank notes was that such notes facilitated illicit transfer of money for financial transactions harmful to the national economy or used for illegal purposes and therefore it was necessary in public interest to demonetise the high denomination bank notes. The use of the non‑obstante clause clearly indicates that the Central Government was not demonetising the currency on the recommendation of the Central Board of the Reserve Bank of India under sub‑section (2) of the Act. In fact, in 1978 the Central Government sought an opinion of the Central Board regarding the demonetisation of high denomination bank notes. The proposal for demonetisation arose from the Central Government which sought the opinion of the Central Board. Therefore, the proposal was de hors sub‑section (2) of the Act., The fact that the non‑obstante clause was present in Section 3 of the Ordinance of 1946 as well as in Section 3 of the 1978 Act clearly indicates that the Central Government, in those cases, did not demonetise the high denomination bank notes on the recommendation of the Central Board under sub‑section (2) of the Act but carried out the process through plenary legislation. Hence, the Central Government chose the route of legislation rather than issuing an executive notification in the Gazette of India., The above is in contrast with the issuance of the Gazette notification dated 8 November 2016, which was followed by the Ordinance of 2016 and then the Act of 2017 was enacted. The said Act inter alia provides that the specified bank notes would cease to be the liability of the Reserve Bank of India or the Central Government., The demonetisation carried out in 2016 of all series of bank notes of denominations Rs 500 and Rs 1,000, which forms the subject matter of the controversy, was carried out by the Central Government by issuance of a notification in the Gazette of India on 8 November 2016. For ease of reference, the impugned notification dated 8 November 2016 is extracted as under:, (Department of Economic Affairs) New Delhi, the 8th November, 2016 S.O. 3407(E). Whereas, the Central Board of Directors of the Reserve Bank of India (hereinafter referred to as the Board) has recommended that bank notes of denominations of the existing series of the value of five hundred rupees and one thousand rupees (hereinafter referred to as specified bank notes) shall be ceased to be legal tender; And whereas, it has been found that fake currency notes of the specified bank notes have been largely in circulation and it has been found to be difficult to easily identify genuine bank notes from the fake ones and that the use of fake currency notes is causing adverse effect to the economy of the country; And whereas, it has been found that high denomination bank notes are used for storage of unaccounted wealth as has been evident from the large cash recoveries made by law enforcement agencies; And whereas, it has also been found that fake currency is being used for financing subversive activities such as drug trafficking and terrorism, causing damage to the economy and security of the country and the Central Government after due consideration has decided to implement the recommendations of the Board; Now, therefore, in exercise of the powers conferred by sub‑section (2) of section 26 of the Reserve Bank of India Act, 1934 (2 of 1934) (hereinafter referred to as the said Act), the Central Government hereby declares that the specified bank notes shall cease to be legal tender with effect from the 9th November, 2016 to the extent specified below, namely: (1) Every banking company defined under the Banking Regulation Act, 1949 (10 of 1949) and every Government Treasury shall complete and forward a return showing the details of specified bank notes held by it at the close of business as on the 8th November, 2016, not later than 13:00 hours on the 10th November, 2016 to the designated Regional Office of the Reserve Bank of India (hereinafter referred to as the Reserve Bank) in the format specified by it. (2) Immediately after forwarding the return referred to in sub‑paragraph (1), the specified bank notes shall be remitted to the linked or nearest currency chest, or the branch or office of the Reserve Bank, for credit to their accounts.
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The specified bank notes held by a person other than a banking company referred to in sub‑paragraph (1) of paragraph 1 or Government Treasury may be exchanged at any Issue Office of the Reserve Bank of India or any branch of public sector banks, private sector banks, foreign banks, Regional Rural Banks, Urban Cooperative Banks and State Cooperative Banks for a period up to and including 30 December 2016, subject to the following conditions: the specified bank notes of aggregate value of Rs 4,000 or below may be exchanged for any denomination of bank notes having legal tender character, with a requisition slip in the format specified by the Reserve Bank of India and proof of identity; the limit of Rs 4,000 for exchanging specified bank notes shall be reviewed after fifteen days from the date of commencement of this notification and appropriate orders may be issued where necessary; there shall be no limit on the quantity or value of the specified bank notes to be credited to the account maintained with the bank by a person where the specified bank notes are tendered, however where compliance with extant Know Your Customer norms is not complete in an account, the maximum value of specified bank notes that may be deposited shall be Rs 50,000; the equivalent value of specified bank notes tendered may be credited to an account maintained by the tenderer at any bank in accordance with standard banking procedure and on production of valid proof of identity; the equivalent value of specified bank notes tendered may be credited to a third‑party account, provided specific authorisation therefor is presented to the bank, following standard banking procedure and on production of valid proof of identity of the person actually tendering; cash withdrawal from a bank account over the counter shall be restricted to Rs 10,000 per day subject to an overall limit of Rs 20,000 a week from the date of commencement of this notification until the end of business hours on 24 November 2016, after which these limits shall be reviewed; there shall be no restriction on the use of any non‑cash method of operating the account of a person including cheques, demand drafts, credit or debit cards, mobile wallets and electronic fund transfer mechanisms; withdrawal from Automated Teller Machines shall be restricted to Rs 2,000 per day per card up to 18 November 2016 and the limit shall be raised to Rs 4,000 per day per card from 19 November 2016; any person who is unable to exchange or deposit the specified bank notes in their bank accounts on or before 30 December 2016 shall be given an opportunity to do so at specified offices of the Reserve Bank of India or such other facility until a later date as may be specified by it., Every banking company and every Government Treasury referred to in sub‑paragraph (1) of paragraph 1 shall be closed for the transaction of all business on 9 November 2016, except for preparation for implementing this scheme and remittance of the specified bank notes to nearby currency chests or the branches or offices of the Reserve Bank of India and receipt of bank notes having legal tender character. All Automated Teller Machines, Cash Deposit Machines, Cash Recyclers and any other machine used for receipt and payment of cash shall be shut on 9 and 10 November 2016. Every bank referred to in sub‑paragraph (1) of paragraph 1 shall recall the specified bank notes from Automated Teller Machines and replace them with bank notes having legal tender character prior to reactivation of the machines on 11 November 2016. The sponsor banks of White Label Automated Teller Machines shall be responsible to recall the specified bank notes from the White Label Automated Teller Machines and replace them with bank notes having legal tender character prior to reactivation of the machines on 11 November 2016. All banks referred to in sub‑paragraph (1) of paragraph 1 shall ensure that their Automated Teller Machines and White Label Automated Teller Machines shall dispense bank notes of denomination of Rs 100 or Rs 50 until further instructions from the Reserve Bank of India. The banking company referred to in sub‑paragraph (1) of paragraph 1 and Government Treasuries shall resume their normal transactions from 10 November 2016., Every banking company referred to in sub‑paragraph (1) of paragraph 1 shall, at the close of business of each day starting from 10 November 2016, submit to the Reserve Bank of India a statement showing the details of specified bank notes exchanged by it in such format as may be specified by the Reserve Bank of India., The said Notification was thereafter followed by an Ordinance issued by the President on 30 December 2016 and subsequently an Act of Parliament namely the 2017 Act., The contention of the learned senior counsel for the petitioners is two‑fold: firstly, that sub‑section (2) of Section 26 of the Act cannot be interpreted as having a very wide import because it would then be lacking in guidance, be unchanneled, arbitrary and in violation of Article 14 of the Constitution, and hence unconstitutional. It was further contended that if the provision is to be saved from being declared unconstitutional, it must be read down, meaning a restrictive interpretation must be given to the words of the provision. The second contention is with regard to the exercise of power by the Central Government by issuance of the Notification dated 8 November 2016 and the manner in which such power was exercised and the procedure followed. The two contentions shall be dealt with together as they are intertwined., Before considering the aforesaid two contentions, it is useful to discuss the unique position that the Reserve Bank of India holds in the Indian economy., Shri Chidambaram cited a recent judgment of the Supreme Court of India in the case of Internet & Mobile Association of India v. Reserve Bank of India (2020) 10 Supreme Court of India Cases 274 wherein Justice V. Ramasubramanian, while dealing with the regulation of cryptocurrency and virtual currency, highlighted the importance of the Reserve Bank of India in the Indian economy. The salient observations made in the judgment may be culled out as follows: (a) The Bank, established for the objects spelled out under Section 3(1) of the Act, is vested with the duty to operate the monetary policy framework in India, to take over the management of currency from the Central Government and to carry on the business of banking in accordance with the provisions of the Act; (b) To enable the Bank to perform the role spelled out above, the Act authorises it to carry on and transact businesses enlisted under Section 17 of the Act, confers under Section 22 the sole and exclusive right on the Bank to issue bank notes in India, except in relation to notes of denomination Rs 1, recognises under Section 26(1) that every note issued by the Bank shall be legal tender, vests with the Central Board of the Bank the power to recommend to the Central Government to declare any series of bank notes of any denomination to cease to be legal tender under Section 26(2), and prohibits under Section 38 any money from being put into circulation by the Central Government except through the Bank. In short, the operation and regulation of the credit and financial system of the country rests almost entirely on the Bank; (c) The Bank is the sole repository of power for the management of currency in India. The Supreme Court of India observed that what the Bank can do in this regard, the executive acting without the aid of the Bank is not adequately equipped to do. Recognising the importance of the role played by the Bank in matters pertaining to currency management, the Supreme Court of India declared that any observations or recommendations made by the Bank to the Central Government must be accorded due deference. The Supreme Court of India observed: “But as we have pointed out above, RBI is not just any other statutory authority. It is not like a stream which cannot be greater than the source. The RBI Act, 1934 is a pre‑constitutional legislation, which survived the Constitution by virtue of Article 372(1) of the Constitution. The difference between other statutory creatures and RBI is that what the statutory creatures can do could as well be done by the executive. The power conferred upon the delegate in other statutes can be tinkered with, amended or even withdrawn. But the power conferred upon RBI under Section 3(1) of the RBI Act, 1934 to take over the management of the currency from the Central Government cannot be taken away. The sole right to issue bank notes in India, conferred by Section 22(1) cannot also be taken away and conferred upon any other Bank or authority. RBI by virtue of its authority is a member of the Bank of International Settlements, a position that cannot be taken over by the Central Government and conferred upon any other authority. Therefore, to say that it is just like any other statutory authority whose decisions cannot invite due deference is to do violence to the scheme of the Act.” The Supreme Court of India further noted that central banks worldwide enjoy independence, citing the fixed tenures of the Board of Governors of the Federal Reserve in the United States and the European Central Bank; (d) The Supreme Court of India acknowledged the pivotal position of the Bank in the economy of the country and observed that the powers of the Bank may be exercised by way of preventive as well as curative measures, but such measures must be proportional and must be prompted by some semblance of damage suffered by its regulated entities. The Supreme Court of India held that while RBI has very wide powers, the availability of power is different from the manner and extent to which it can be exercised, and that any pre‑emptive action must be proportionate and based on actual damage, which was absent in the present case., Shri Jaideep Gupta, appearing for the Bank, cited the following decisions to emphasize the importance of the Reserve Bank of India: (a) In Joseph Kuruvilla Vellukunnel v. Reserve Bank of India AIR 1962 Supreme Court of India 1371, the Supreme Court of India observed that the most important function of the Bank is to regulate the banking system, describing it as a Banker’s Bank. The Bank can lend assistance to scheduled banks as a lender of the last resort, has advisory and regulatory functions, acts as an agency for collecting financial information and statistics, and advises the Government and other banks on financial matters after inspecting the books of scheduled banks. The Supreme Court of India cautioned that the Reserve Bank can act mistakenly or negligently. (b) In Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India (1992) 2 Supreme Court of India Cases 343, the Supreme Court of India again recognized the status of the Reserve Bank in the Indian economy, describing it as a Banker’s Bank and a creature of statute with a large contingent of expert advice relating to matters affecting the economy of the entire country. The Court observed that the Reserve Bank has an important role in the economy and financial affairs of India and one of its many important functions is to regulate the banking system. The provision of Section 26(2) of the Act is clear that only on the recommendation of the Central Board of the Bank may any series of bank notes of any denomination be declared to have ceased to be legal tender., The learned Attorney General emphasized the principle of judicial deference to the economic and monetary policies of the Government and the restraint that courts must exercise in interfering with such policies unless they are so irrational or unreasonable as to be unconstitutional. This submission was made in the context of the petitioners’ claim that the decision‑making process in the present case was deeply flawed, contrary to the scheme and procedure contained in sub‑section (2) of Section 26 of the Act, and therefore subject to judicial review., The Indian judiciary has consistently exercised restraint with regard to judicial review of policy decisions. Relevant precedents include: (a) State of Tamil Nadu v. National South Indian River Interlinking Agriculturist Association (2021) Supreme Court of India Online SC 1114, relied upon by the Attorney General; (b) Rustom Cavasjee Cooper v. Union of India AIR 1970 Supreme Court of India 565 (Bank Nationalisation Case), where the Supreme Court of India held that it is not the forum for debating conflicting policy claims but only to adjudicate the legality of a measure; (c) State of Madhya Pradesh v. Nandlal Jaiswal (1986) 4 Supreme Court of India 566, which observed that the Government may make pragmatic adjustments and the Supreme Court of India may interfere only if a policy decision is patently arbitrary, discriminatory or mala fide; (d) Peerless General Finance and Investment Co. Ltd. v. Reserve Bank of India (1992) 2 Supreme Court of India Cases 343, where the Supreme Court of India stated that it is unbecoming for judicial institutions to interfere with economic policy which is the prerogative of the Government in consultation with experts; (e) Delhi Science Forum v. Union of India AIR 1996 Supreme Court of India 1356, concerning the grant of licences under the Telegraph Act, 1885, where the Supreme Court of India held that national policies in respect of economy, finance, communications, trade and telecommunications are to be decided by Parliament and may be challenged only on constitutional or legal grounds; (f) Bhavesh D. Parish v. Union of India (2000) 5 Supreme Court of India 471, where the Supreme Court of India opined that expertise in economic matters should not be lightly interfered with and courts should intervene only in cases of arbitrary or unconstitutional action; (g) Balco Employees Union (Regd) v. Union of India AIR 2002 Supreme Court of India 350, which held that a change in government policy is not per se liable to be interfered with unless there is illegality, violation of law or mala fide intent; (h) Directorate of Film Festivals v. Gaurav Ashwin Jain AIR 2007 Supreme Court of India 1640, which clarified that judicial review of governmental policy is limited to checking violations of fundamental rights, constitutional provisions, statutory provisions or manifest arbitrariness, not to assess the wisdom or soundness of the policy; (i) DDA v. Joint Action Committee, Allottee of SFS Flats AIR 2008 Supreme Court of India 1343, which held that a policy decision is not beyond the pale of judicial review and may be examined on grounds of unconstitutionality, contravention of statutes, excess of delegated power or inconsistency with larger policy; (j) Small Scale Industrial Manufacturers Association (Regd.) v. Union of India (2021) 8 Supreme Court of India 511, where the Supreme Court of India reiterated that the legality of a policy, not its wisdom, is the subject of judicial review and that courts do not play an advisory role to the Government., The foregoing decisions collectively indicate that: (i) courts do not sit in judgment over the merits of economic or financial policy; (ii) judicial interference is limited to instances where a scheme or legislation in the economic arena violates constitutional or statutory provisions; and (iii) courts may not evaluate the merits, demerits, sufficiency or success of an economic policy, as such analysis is the prerogative of the Government in consultation with experts., Keeping in mind the limited scope of judicial review permissible in matters concerning economic policy decisions, the examination will be confined to determining whether the process concluding in the issuance of the impugned notification was correct or contrary to sub‑section (2) of Section 26 of the Act and allied aspects. This inquiry concerns substance rather than form and does not amount to interference with the merits of the demonetisation policy, thereby remaining within the boundaries drawn by the Supreme Court of India., Considering the important role played by the Reserve Bank of India in shaping the economy and the principle that constitutional courts should refrain from interfering in financial and economic policy decisions of the Government unless such policies are irrational, the two contentions raised by the petitioners will now be analysed in the context of Section 26(2) of the Act., Section 26 of the Act deals with the procedure for demonetisation. For ease of reference, a tabular summary of the analysis is presented, distinguishing between proposals originating from a recommendation by the Central Board of the Bank and proposals originating from the Central Government., The parameters for distinction are as follows: (1) Role of the Central Government – The Central Government may, on consideration of the Bank’s recommendation, accept it and issue a notification in the Gazette of India declaring that any series of any denomination has ceased to be legal tender, or may decide that it is not expedient to accept the recommendation. If the recommendation is not accepted, no further action is required; consultation with the Central Board does not imply concurrence. (2) Role of the Bank – The Central Board of the Bank makes a recommendation to the Central Government to declare that any series of any denomination has ceased to be legal tender. The Bank is bound to render independent advice and opinion on the proposal. (3) Extent of demonetisation – Demonetisation of any series of any denomination is interpreted to mean a specified series of specified denomination; a blanket declaration of all denominations at once may be made by the Central Government having regard to the situation faced. (4) Considerations for the proposed measure – For proposals originating from the Bank, considerations include promotion of the general health of the country’s economy and fiscal policy considerations. For proposals originating from the Central Government, considerations include sovereignty and integrity of India, security of the State, promotion of the general health of the country’s economy and monetary policy considerations.
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Considerations which could guide the Bank's recommendation are limited or narrow in compass. Other aspects of governance. Considerations which could guide the Central Government's proposal to carry out demonetisation are broad or wide., Process/Route to be followed to carry out demonetisation: Issuance of a Notification in the Gazette of India, indicating therein that any specified series of any specified denomination has ceased to be legal tender, from such date as specified in the Notification. Enactment of a Parliamentary Legislation, which may or may not be preceded by an Ordinance issued by the President of India., Applicability of sub‑section (2) of section 26 of the Reserve Bank of India Act, 1934. Notification issued by the Central Government, giving effect to the Bank's recommendation, shall be on the strength of sub‑section (2) of section 26 of the Act. Sub‑section (2) of section 26 of the Act is not applicable. Hence, a notification in the Gazette of India is not the manner in which demonetisation is to be carried out, when the proposal for the same originates from the Central Government., Section 26 of the Act deals with legal tender of notes. Sub‑section (1) of Section 26 declares that every bank note shall be a legal tender at any place in India in payment or on account for the amount expressed therein, and shall be guaranteed by the Central Government. There are two aspects to this provision: the first is that every bank note shall be a legal tender in any place in India and, secondly, that the Central Government shall guarantee the amount expressed on the bank note. The expression bank note is defined in Section 2 (aiv) of the Act to mean a bank note issued by the Bank whether in physical or digital form, under Section 22 of the Act. Section 22 of the Act categorically states that the Bank has the sole right to issue bank notes in India, on the recommendations of the Central Board of the Bank. The provision further provides that the Bank has the sole right to issue currency notes of the Government of India. The provisions of the Act would be applicable in a like manner to all currency notes of the Government of India, issued either by the Central Government or by the Bank, as if such currency notes were bank notes., Further, it is only on the recommendation of the Central Board of the Bank that the Central Government may direct the non‑issue or discontinuation of the issue of bank notes of such denominational value as it may specify in this behalf. Even the design, form and material of bank notes has to be approved by the Central Government, after considering the recommendations made by the Central Board of the Bank. Thus, the scheme of the Act envisages that the issuance of the bank notes, the various denominations of the bank notes, the design and form of the bank notes, are all to be specified by the Central Government only on the recommendation of the Central Board of the Bank. Therefore, on perusal of Sections 24, 25 and 26 of the Act, it is observed that it is only on the recommendation of the Central Board of the Bank that the Central Government would act qua the aforesaid matters, on the strength of the respective provisions. It need not be emphasized that the Bank, being the only institution which carries out the function of currency management and formulates credit rules in the country, is recognised as having a say in the issuance of currency notes, and also in specifying the denominations of the notes, as well as the design and form of the bank notes., Further, although sub‑section (1) of Section 26 states that every bank note shall be legal tender at any place in India, it acquires legal sanctity because the Central Government has guaranteed the bank note which has legal tender. Thus, a bank note statutorily has dual characteristics when it is issued by the Bank, namely, being a legal tender coupled with the guarantee of the Central Government and the said qualities go hand in hand. This would mean that it is only when the Bank which has the sole right to issue a currency note in India issues the note and the same has been guaranteed by the Central Government, that such a note is legal tender. Therefore, the Issue Department of the Bank is not subject to any liabilities other than the liabilities under Section 34 of the Act. Section 34 of the Act states that an amount equal to the total of the amount of the currency notes of the Government of India and bank notes for the time being in circulation would be the liability of the Issue Department. This would imply that as long as the bank notes issued by the Bank are in circulation, the liability of the Government of India would continue. The said liability is owing to the guarantee given by the Central Government in sub‑section (1) of Section 26 which is in the nature of a statutory guarantee., While considering sub‑section (1) of Section 26 of the Act, the first question that would arise is whether a bank note which has ceased to be a legal tender on the issuance of a notification by the Central Government would also cease to have the guarantee of the Central Government. In other words, whether the guarantee by the Central Government would continue despite the bank note ceasing to be a legal tender. The answer is in the affirmative, for a bank note may cease to be a legal tender between citizens but cannot cease to have the guarantee of the Central Government, so long as the liability of the Issue Department continues. The liability of the Issue Department of the Bank is co‑extensive with the time period within which a bank note which has ceased to be a legal tender is exchanged at a notified bank. It is because of this reason that a bank note of any denomination which is demonetised or is declared to have ceased to be a legal tender can be exchanged as indicated in the notification issued by the Central Government so that the bearer of the bank note receives an equivalent amount as that expressed in the note which has ceased to be a legal tender or demonetised. Therefore, even though such demonetised currency would cease to be legal tender, the same could be exchanged in a bank specified by the Reserve Bank owing to the guarantee of the Central Government. If the guarantee of the Central Government ceases on demonetisation, then the same cannot be exchanged by the bearer of such bank notes. This has also been the argument of learned senior counsel Shri Shyam Divan., Sub‑section (2) of Section 26 of the Act states that on the recommendation of the Central Board of the Bank, the Central Government may, by notification in the Gazette of India, declare that with effect from such date as specified in the notification, any series of bank notes of any denomination shall cease to be a legal tender, save at such office or agency of the Bank and to such extent as may be specified in the said notification. The Central Government derives the power to issue a notification in the Gazette only on the recommendation of the Central Board of the Bank. The issuance of such a notification is an executive act which is backed by the recommendation of the Central Board of the Bank which has been accepted by the Central Government. The notification has to indicate the date from which any series of bank notes of any denomination shall cease to be a legal tender, save at such office and to such extent as may be specified in the notification., The essential ingredients of sub‑section (2) of Section 26 of the Act can be epitomised as under: on the recommendation of the Central Board of the Bank; the Central Government by notification in the Gazette of India; may declare any series of bank notes of any denomination to cease to be legal tender; with effect from such date as may be specified in the notification; to such extent as may be specified in the notification. Therefore, under sub‑section (2) of Section 26 of the Act, the Central Government would act only on the recommendation made by the Central Board of the Bank, which is the initiator of demonetisation of bank notes., Learned Attorney General made a pertinent submission that it is not necessary that only on a recommendation of the Central Board of the Bank, the Central Government can demonetise any currency. That the Central Government has the power or jurisdiction to demonetise any bank note by the issuance of a gazette notification. He further contended that the powers of the Central Government cannot be denuded to such an extent that unless and until a recommendation of the Central Board of the Bank is made to the Central Government, the latter cannot demonetise any currency. According to the learned Attorney General, if such a strict interpretation is given to sub‑section (2) of Section 26, it would nullify the power of the Central Government to demonetise any bank note, having regard to the economic conditions of the country, the financial health of the economy and the monetary policy of the Government. It was submitted that the provision must be so interpreted so as to give a free play in the joints and empower the Central Government to issue a notification in the Gazette of India, in order to demonetise any bank note. He further contended that the requirement of recommendation of the Central Board of the Bank in order to enable the Central Government to issue a notification to demonetise any currency would imply that the initiation of demonetisation must only be from the Central Board of the Bank and that the Central Government has no power to initiate such an action of demonetisation., I find considerable force in the contention of the learned Attorney General inasmuch as the Central Government cannot be said to be without powers in initiating demonetisation of bank notes. This is on the strength of Entry 36 of List I of the Seventh Schedule of the Constitution. The Central Government is not just concerned with the financial health of the country as well as its economy, but it is also concerned with the sovereignty and integrity of India; the security of the State; the defence of the country; its friendly relations with foreign countries; internal and external security and various other aspects of governance. On the other hand, the Bank is only concerned with the regulation of currency notes, monetary policy framework, maintaining price stability and allied matters. Therefore, if the Central Government is of the considered opinion that in order to meet certain objectives such as those stated in the impugned notification, namely, to eradicate black money, fake currency, terror funding etc., it is necessary to demonetise the currency notes in circulation, then the Central Government may initiate a proposal for demonetisation., The second prong of the learned Attorney General's contention qua the interpretation of sub‑section (2) of Section 26 of the Act was that the Central Government has the power to demonetise not just any one series of currency of any one denomination but it has the power to demonetise all series of currencies of all denominations at a time. It was argued that the expression any in sub‑section (2) of Section 26 of the Act must mean all., Per contra, it was the submission of the learned senior counsel for the petitioners that, as the said provision stands, in the absence of any guidance vis‑à‑vis the power of the Central Government to issue a notification to demonetise the currency notes in circulation and in order to save such measure from the vice of unconstitutionality, the expression any series and any denomination in sub‑section (2) of Section 26 of the Act must be restricted to mean one series and one denomination, respectively. Otherwise, it could result in arbitrary exercise of power. He further contended that if subsection (2) of Section 26 of the Act is not read down in this context, it would confer unguided and arbitrary power on the executive Government and it would amount to impermissible delegation of legislative powers., It was further contended by Shri Chidambaram that demonetisation is resorted to in rare and exceptional circumstances and there are two justifiable reasons for which demonetisation could be resorted to, namely, (1) to weed out denominations of currency that are in disuse or are practically unusable; (2) to get rid of currency which has become worthless in value because of hyperinflation. According to the learned senior counsel for the petitioners, if any demonetisation of currency has to take place, and if the power of the Central Government is not channelised or restricted by reading down sub‑section (2) of Section 26 of the Act, it would result in arbitrariness and unconstitutionality. Therefore, to save it from the vice of arbitrariness and unconstitutionality, it is necessary to read down the provision in the following two respects: (a) the Central Government has no power to demonetise any currency note except on the recommendation of the Central Board of the Bank under sub‑section (2) of Section 26 of the Act; and (b) the expression any in sub‑section (2) of Section 26 of the Act must be restricted to be any one, that is, one series or one denomination of bank notes. That the addition of the words any series before the words of bank notes of any denomination limits the power of the Government to declare only a specified series of notes as no longer being a legal tender. Thus, any series means any specified series and not all series of notes of a given denomination., Since I have accepted the contention of the learned Attorney General appearing for the Union of India vis‑à‑vis the power of the Central Government for initiating the process of demonetisation, the next question would be whether the Central Government can, on initiating the process of demonetisation, proceed to issue a gazette notification to demonetise any or all series of any or all denomination of bank notes, on the strength of sub‑section (2) of Section 26 of the Act. Consideration of this issue would also answer the contention of the learned senior counsel for the petitioners regarding sub‑section (2) of Section 26 of the Act being unguided and arbitrary in nature and hence unconstitutional. To this end, the following aspects have to be examined: (a) Whether demonetisation can be initiated and carried out by the Central Government by issuing a notification in the Gazette of India as per sub‑section (2) of Section 26 of the Act? (b) Extent of the Central Government's power to carry out demonetisation, i.e., whether all series of all denominations may be demonetised., As held hereinabove, the proposal for demonetisation can emanate either from the Central Government or from the Central Board of the Bank. It is however necessary to contrast the proposal for demonetisation initiated by the Central Government with that initiated by the Central Board of the Bank. When the Central Board of the Bank recommends demonetisation, it is in my view only for a particular series of bank notes of a particular denomination as specified in the recommendation made under sub‑section (2) of Section 26 of the Act. The word any in sub‑section (2) of Section 26 cannot be read to mean all. If read as specified or particular as against all, in my view, it would not suffer from arbitrariness or unguided discretion being given to the Central Board of the Bank. On the other hand, in my view, the Central Government has the power to demonetise all series of bank notes of all denominations, if the need for such a measure arises. It cannot be restricted in such powers in such manner as the Central Board of the Bank is, under the above provision. This is because such power is not exercised under sub‑section (2) of Section 26 of the Act but is exercised notwithstanding the said provision by the Central Government. Therefore, demonetisation of bank notes at the behest of the Central Government is a far more serious issue having wider ramifications on the economy and on the citizens, as compared to demonetisation of bank notes of a given series of a given denomination on the recommendation of the Central Board of the Bank by issuance of a gazette notification by the Central Government. Therefore, in my considered view, the powers of the Central Government being vast, the same have to be exercised only through a plenary legislation or a legislative process rather than by an executive act by the issuance of a notification in the Gazette of India. It is necessary that the Parliament, which consists of the representatives of the people of this country, discusses the matter and thereafter approves and supports the implementation of the scheme of demonetisation., The Central Government, as already noted above, could have several compulsions for initiating demonetisation of the bank notes already in circulation in the economy, and it could do so even in the absence of a recommendation, as per sub‑section (2) of Section 26 of the Act, of the Central Board of the Bank. On its proposal to demonetise the bank notes, the advice/opinion of the Central Board of the Bank which has to be consulted may not always be in support of the proposal of the Central Government as in the year 1978. The Central Board of the Bank may give a negative opinion or a concurring opinion. In either situation, the Central Government may proceed to demonetise the bank notes but only through a legislative process, either through an Ordinance followed by a legislation, if the Parliament is not in session; or by a plenary legislation before the Parliament and depending upon the passage of the Bill as an Act, carry out its proposal of demonetisation. Of course, depending upon the urgency of the situation and possibly to maintain secrecy, the option of issuance of an Ordinance by the President of India and the subsequent enactment of a law is always available to the Central Government by convening the Parliament. Such demonetisation of currency notes at the instance of the Central Government cannot be by the issuance of an executive notification. The reasons for stating so are not far to see: (i) Firstly, because the Central Government is not acting under sub‑section (2) of Section 26 of the Act. When the Central Government initiates the process of demonetisation it is de hors sub‑section (2) of Section 26 of the Act. (ii) Secondly, the Central Government has the power to demonetise all series of bank notes of all denominations unlike the narrower powers vested with the Central Board of the Bank under the aforesaid provision, if the situation so arises. (iii) Thirdly, the Parliament which is the fulcrum in our democratic system of governance must be taken into confidence. This is because it is the representative of the people of the country. It is the pivot of any democratic country and in it rest the interests of the citizens of the country. The Parliament enables its citizens to participate in the decision‑making process of the government. A Parliament is often referred to as a nation in miniature; it is the basis for democracy. A Parliament provides representation to the people of a country and makes their voices heard. Without a Parliament, a democracy cannot thrive; every democratic country needs a Parliament for the smooth conduct of its governance and to give meaning to democracy in the true sense. The Parliament which is at the centre of our democracy cannot be left aloof in a matter of such importance. Its views on the subject of demonetisation are critical and of utmost importance. Dr. Subhash C. Kashyap in his book, Parliamentary Procedure: Law, Privileges, Practice and Precedents, 3rd Ed., (2014), while discussing the functions of the Parliament has stated as follows: Over the years, the functions of Parliament have no longer remained restricted merely to legislating. Parliament has, in fact emerged as a multi‑functional institution encompassing in its ambit various roles viz. developmental, financial and administrative surveillance, grievance ventilation and redressal, national integration, conflict resolution, leadership recruitment and training, educational and so on. The multifarious functions of Parliament make it the cornerstone on which the edifice of Indian polity stands and evokes admiration from many a quarter. It is in the above context that it is observed that on a matter as critical as demonetisation, having a bearing on nearly 86 % of the total currency in circulation, the same could not have been carried out by way of issuance of an executive notification. A meaningful discussion and debate in the Parliament on the proposed measure would have lent legitimacy to the exercise. When an Ordinance is issued or a Bill is introduced in the Parliament and enacted as a law, it would mean that it has been done by taking into confidence the Members of Parliament who are the representatives of the people of India, who would meaningfully discuss the proposal for demonetisation made by the Central Government. In such an event, demonetisation would be by an Act of Parliament and not a measure carried out by the issuance of a gazette notification by the Central Government in exercise of its executive power. Such demonetisation through an Ordinance or a legislation through the Parliament would be notwithstanding what is contained in sub‑section (2) of Section 26 of the Act. This is because in such a situation, the Central Government is not acting on the basis of a recommendation received from the Central Board of the Bank but it would be proposing the demonetisation. Precedent for the same may be found in the earlier demonetisations which were also through a legislative process and not through the issuance of a gazette notification by the Executive/Central Government. When the process of demonetisation is carried out through a Parliamentary enactment and after being the subject of scrutiny by the Members of Parliament, any opinion sought by the Central Government from the Central Board of the Bank before initiating the promulgation of the Ordinance or placing the Bill before the Parliament may also be additional material which could be considered by the Parliament. When the Central Government initiates the proposal for demonetisation and thereafter consults the Bank on such proposal, then it could be said that the necessary safeguards were taken, as the Central Government would be fortified in its proposal for demonetisation having taken the advice of not only an expert body but the highest financial authority in the country, which handles not only the monetary policy but is also the sole authority vested with the power of issuance of bank notes or currency notes in India. When the Central Government proposes to demonetise the currency notes, not only the view of the Central Board of the Bank is relevant and important but also that of the representatives of the people in the Parliament. The Members of the Parliament hold the sovereign powers of We, the People of India in trust., Of course, by contrast, there would be no difficulty if the proposal for demonetisation is initiated by the Central Board of the Bank by making a recommendation under sub‑section (2) of Section 26 of the Act, which the Central Government in its wisdom may consider and either act upon the recommendation or for good reason decline to act on the same. That is a matter left to the wisdom of the Central Government. However, as noted above such recommendation by the Bank cannot relate to all series of a denomination or all series of all denominations of bank notes. That is a prerogative of only the Central Government., It is nobody's case that the impugned gazette notification dated 8th November 2016 of the Central Government was published on the initiation of the proposal of demonetisation by the Central Board of the Bank. The proposal for demonetisation was initiated by the Central Government by a letter dated 7th November 2016 addressed by the Finance Secretary to the Governor of the Bank. The Central Government, having obtained the advice of the Bank on its proposal, proceeded to issue the impugned gazette notification on the very next day, dated 8th November 2016. The same was followed by an Ordinance and thereafter, an enactment was passed., The contention of the petitioners could now be considered and answered. The words in sub‑section (2) of Section 26 of the Act would have to be interpreted/construed in their normal parlance. It is already observed that issuance of such a notification under sub‑section (2) of Section 26 of the Act must be preceded by a recommendation of the Central Board of the Bank and such recommendation is a condition precedent. The Central Government in its wisdom may accept the recommendation of the Central Board of the Bank and issue a notification in the Gazette of India or it may decline to do so. This position is evident from the use of the word may in sub‑section (2) to Section 26 of the Act. However, what is significant is that if demonetisation of any bank note is to take place under sub‑section (2) of Section 26 of the Act, it is only by issuance of a notification in the Gazette of India and not by any other method or manner. In other words, the Central Board of the Bank must first initiate the process by recommending to the Central Government to declare that any series of bank notes of any denomination shall cease to be a legal tender by the issuance of a notification. If the Central Government accepts the recommendation of the Central Board of the Bank, it issues a notification in the Gazette of India carrying out the same, which is in the nature of an executive function and the publication of the notification in the Gazette of India is only a ministerial act., Therefore, under sub‑section (2) of Section 26 of the Act, the initiation of the process of demonetisation and the exercise of power originates from the Central Board of the Bank which has to recommend to the Central Government and the latter may accept the recommendation and in such event it would issue a gazette notification. In case the Central Government does not accept the recommendation, there will be no further action on the recommendation of the Central Board of the Bank. Thus, subsection (2) of Section 26 of the Act has inherently a very restricted operation, and is limited only to the initiation of demonetisation by the Central Board of the Bank and making a recommendation in that regard. Issuance of the notification in the Gazette of India would imply that the Central Government has accepted the recommendation of the Central Board of the Bank and therefore, has declared that the specified series of bank notes of the specified denomination shall cease to be legal tender from the date to be specified in the notification. The operation of sub‑section (2) of Section 26 of the Act is thus in a very narrow compass and it is reiterated that the said power is exercised by the Central Government on acceptance of the recommendation of the Central Board of the Bank., The reason as to why a wide interpretation as contended by the Union of India cannot be given to sub‑section (2) of Section 26 of the Act is because a plain reading of the provision as well as a contextual understanding would suggest that it is only when the initiation of a proposal for demonetisation is by the Central Board of the Bank by making a recommendation to the Central Government that the provision would apply., This position, however, does not imply that the Central Government is bereft of any power or jurisdiction to declare any bank note of any denomination to have ceased to be a legal tender. As already observed while accepting the contention of the learned Attorney General, the Central Government in its wisdom may also initiate the process of demonetisation as has been done in the instant case. But what is important and to be noted is that the said power cannot be exercised by the mere issuance of an executive notification in the Gazette of India. In other words, when the proposal to demonetise any currency note is initiated by the Central Government with or without the concurrence of the Central Board of the Bank, it is not an exercise of the executive power of the Central Government under sub‑section (2) of Section 26 of the Act.
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In such a situation, as already held, the Central Government would have to resort to the legislative process by initiating a plenary legislation in Parliament. What is being emphasised is that the Central Government cannot act in isolation in such matters. The Central Government has to firstly take the opinion of the Central Board of the Reserve Bank of India for the proposed demonetisation. The Central Board of the Reserve Bank of India may not accept the proposal of the Central Government or may partially concur with the proposal on specific aspects. In fact, in 1978, when the then Governor of the Reserve Bank of India did not accept the proposal of the Central Government to demonetise Rs.5,000/- and Rs.10,000/- bank notes, the Central Government initiated the said process through Parliament and this culminated in the passing of the Act of 1978. In drafting the said legislation, the expert assistance of two officers of the Reserve Bank of India was taken so as to fortify the legislation. The said legislation was also challenged before the Supreme Court of India in the case of Jayantilal Ratanchand Shah, Devkumar Gopaldas Aggarwal versus Reserve Bank of India (1996) 9 SCC 650 whereby the vires of the 1978 Act was ultimately upheld by the Supreme Court of India vide judgement dated 9th August 1996, after eighteen years of its enactment., The reasons why the Central Government cannot unilaterally issue a gazette notification but has to resort to legislation when it initiates the proposal for demonetisation have already been discussed. The Central Government may have very valid objectives to do so, as in the instant case, that is, in order to eradicate black money, fake currency and prevent currency from being utilised for terror funding. But those objects would not be the objects with which the Central Board of the Reserve Bank of India may make a recommendation under sub‑section (2) of Section 26 of the Act. The reason is that the Central Government would view the entire scheme of demonetisation in a larger perspective, having several objects in mind and in the interest of the sovereignty and integrity of India, the security of the State, the financial health of the economy, et cetera. The Central Board of the Reserve Bank of India may not be in a position to visualise such objectives. Under such circumstances the Central Government must consult the Bank but need not mandatorily obtain the imprimatur of the Central Board of the Reserve Bank of India to its proposal. If the Central Board of the Reserve Bank of India, when consulted by the Central Government, gives a negative opinion, would it mean that the Central Government would then not resort to demonetisation in deference to that opinion? It may do so if it finds that the opinion tendered by the Bank is just and proper, but the Central Government may have its own reasons for not accepting the opinion of the Central Board of the Reserve Bank of India and therefore, in such a situation the Central Government will have to initiate the proposal for demonetisation through a plenary legislation, by way of introduction of a Bill in Parliament resulting in an Act of Parliament., Therefore, the sum and substance of the discussion is that when the Central Board of the Reserve Bank of India initiates or originates the proposal for demonetisation of any series of bank notes of any denomination, it has to make a recommendation to the Central Government as per sub‑section (2) of Section 26 of the Act. The Central Government may act on such recommendation by issuing a gazette notification. On the other hand, when the Central Government is the originator of the proposal for demonetisation of any currency note as in the instant case, it has to seek the advice of the Central Board of the Reserve Bank of India, for it cannot afford to proceed in isolation and without bringing the proposal to the notice of the Board, having regard to the important position the Bank holds in the Indian economy. Irrespective of the opinion of the Central Board of the Reserve Bank of India to the Central Government’s proposal, the legislative route would have to be taken by the Central Government for furthering its objectives of demonetisation of bank notes. Thus, the same cannot be carried out by the issuance of a simple notification in the Gazette of India declaring that all bank notes or currency notes are demonetised. This is because when the Central Government is the originator of a proposal for demonetisation, it is acting de hors sub‑section (2) of Section 26 of the Act., Such an interpretation is necessary as it is the contention of the Union of India that the Central Government has the power to demonetise all series of bank notes of all denominations, which would mean that every Rs.1/-, Rs.5/-, Rs.10/-, Rs.20/-, Rs.10,000/- could be demonetised. Since this is possible theoretically, in my view, such an extensive power cannot be exercised by issuance of a simple gazette notification in exercise of an executive power of the Central Government as if it were under sub‑section (2) of Section 26 of the Act. The same can only be through a plenary legislation, by way of an enactment following a meaningful debate in Parliament on the proposal of the Central Government. This would also answer the other contention of the learned senior counsel for the petitioners that sub‑section (2) of Section 26 of the Act cannot be interpreted to mean all series of bank notes of all denominations when the words used in the provision are 'any series of any denomination'., Deciphering the plain meaning of sub‑section (2) of Section 26: The reason why power is vested only with the Central Board of the Reserve Bank of India under sub‑section (2) of Section 26 of the Act to recommend to the Central Government to declare specified series of specific denomination of bank notes as having ceased to be legal tender becomes clear when the plain meaning of the words of the provision is recognised. When interpreted as such, no power to demonetise currency notes at the behest of the Central Government is envisaged under the provision. This is because the power of the Central Government to do so is vast and has a wide spectrum. Such a power is not traceable to sub‑section (2) of Section 26 of the Act, which operates in a narrower compass. Hence, to save sub‑section (2) of Section 26 from the vice of unconstitutionality, it must be given an interpretation appropriate to the object for which the provision is intended. In this context, the following principles become relevant., When the words of a statute are clear, plain or unambiguous, that is, they are reasonably susceptible to only one meaning, the Supreme Court of India is bound to give effect to that meaning and admit only one meaning and no question of construction of a statute arises, for the provision or Act would speak for itself. The judicial dicta relevant to the above principle of interpretation are as follows. In Kanailal Sur versus Paramnidhi Sadhu Khan AIR 1957 SC 907 at page 910, the Supreme Court of India observed that if the words used are capable of only one construction then it would not be open to the courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the purported object and policy of the Act. Reference was made to Section 162 of the Code of Criminal Procedure, 1898 and the interpretation of the expression 'any person' by Lord Atkin, speaking for the Privy Council, who observed that the expression 'any person' includes any person who may thereafter be an accused, and he observed that when the meaning of the words is plain, it is not the duty of courts to busy themselves with supposed intentions, vide Pakala Narayanaswami versus Emperor AIR. Similarly, while construing Sections 223 and 226 of the Indian Succession Act, 1925, which contain a prohibition in relation to grant of probate or letters of administration to any association of individuals unless it is a company, the Supreme Court of India in Illachi Devi versus Jain Society Protection of Orphans India (2003) 8 SCC 413 applied the plain meaning rule and held that the expression would not include a society registered under the Societies Registration Act as a society even after registration does not become distinct from its members and does not become a separate legal person like a company. For a proper application of the plain meaning rule to a given statute, it is necessary first to determine whether the language used is plain or ambiguous. Any ambiguity means that a phrase is fairly and equally open to diverse meanings. A provision is not ambiguous merely because it contains a word which in different contexts is capable of different meanings. It is only when a provision contains a word or phrase which in a particular context is capable of having more than one meaning that it would be ambiguous. Hence, in order to ascertain whether certain words are clear and unambiguous, they must be studied in their context. Context in this connection is used in a wide sense as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia and the mischief which by those and other legitimate means can be discerned that the statute was intended to remedy. [Source: Interpretation of Statutes by Justice G.P. Singh, 15th Edition], Applying the above rule, if sub‑section (2) of Section 26 of the Act is read as per the plain meaning of the words of the provision, then it does not lead to any ambiguity. The plain meaning rule is the golden rule of construction of statutes and it does not lead to any absurdity in the instant case. On a plain reading of the provision, it is observed that the Central Government can issue a notification in the Gazette of India to demonetise any series of bank notes of any denomination but only on the recommendation of the Central Board of the Reserve Bank of India. In my view sub‑section (2) of Section 26 is not vitiated by unconstitutionality., This is for two reasons. Firstly, the plain meaning of the words 'any series of bank notes of any denomination' would not imply all series of bank notes of all denominations. The word 'any' means specified or particular and not all as contended by the respondents. If the contention of the Union of India is accepted and the word 'any' is read as 'all', it would lead to disastrous consequences as the Central Board of the Reserve Bank of India cannot be vested with the power to recommend demonetisation of all series of currency of all denominations. The interpretation suggested by the learned Attorney General would lead to vesting of unguided power in the Central Board of the Reserve Bank of India, whereas giving a wider power to the Central Government to initiate such a demonetisation wherein all series of a denomination could be demonetised is appropriate as it is expected to consider all pros and cons from various angles and then to initiate demonetisation on a large scale through a legislative process. Such a power is vested only in the Central Government by virtue of Entry 36 of List I of the Seventh Schedule of the Constitution, which of course has to be exercised by means of a plenary legislation and not by issuance of a gazette notification under sub‑section (2) of Section 26 of the Act. Hence, the word 'any' cannot be interpreted to mean 'all' having regard to the context in which it is used in the provision., Secondly, any recommendation of the Central Board of the Reserve Bank of India under sub‑section (2) of Section 26 is not binding on the Central Government. If the Central Government does not accept the recommendation of the Board then no notification would be published in the Gazette of India by it. In fact, the Central Government is not bound by the recommendation made by the Central Board of the Reserve Bank of India to demonetise any bank note, although the Board may comprise experts in matters relating to finance, having knowledge and experience of economic affairs of the country, and such knowledge may be reflected in the recommendation made to the Central Government. As already noted, the Central Government has the option to accept the recommendation and accordingly issue a gazette notification or elect not to act on the same. However, the Central Government should consider the recommendation with all seriousness and, in its wisdom, take an appropriate decision in the matter., In the instant case, on perusal of the records submitted by the Union of India and the Reserve Bank of India, it is noted that the proposal for demonetisation had been initiated by the Central Government by writing a letter to the Bank on 7th November 2016 and not by the Central Board of the Reserve Bank of India. On the very next evening, that is, on 8th November 2016 at 05:30 p.m., there was a meeting of the Central Board of the Reserve Bank of India at New Delhi and a resolution was passed and a little while thereafter on the same evening, the notification was issued invoking sub‑section (2) of Section 26 of the Act by the Central Government. Such a procedure is not contemplated under sub‑section (2) of Section 26 of the Act when the proposal for demonetisation is initiated by the Central Government., Hence, it is held that in the instant case the Central Government could not have exercised power under sub‑section (2) of Section 26 of the Act in the issuance of the impugned gazette notification dated 8th November 2016. It is further held that in the present case, the object and the purpose of issuance of an Ordinance and thereafter the enactment of the 2017 Act by Parliament was, in my view, to give a semblance of legality to the exercise of power by issuance of the notification on 8th November 2016. In fact, Section 3 of the Ordinance as well as Section 3 of the Act makes this explicit. The provision reads: 'On and from the appointed day, notwithstanding anything contained in the Reserve Bank of India Act, 1934 or any other law for the time being in force, the specified bank notes which have ceased to be legal tender, in view of the notification of the Government of India in the Ministry of Finance, number S.O. 3407(E), dated 8th November 2016, issued under sub‑section (2) of Section 26 of the Reserve Bank of India Act, 1934, shall cease to be liabilities of the Reserve Bank under Section 34 and shall cease to have the guarantee of the Central Government under sub‑section (1) of the said Act.' The said section has an inherent contradiction inasmuch as it contains a non‑obstante clause vis‑à‑vis the Act or any other law for the time being in force but at the same time refers to Sections 26 and 34 of the Act., The non‑obstante clause is sometimes appended to a section with a view to give the enacting part of that section, in case of conflict, an overriding effect over the provision or Act mentioned in the clause. Judicial dicta on this point include: (a) In T.R. Thandur versus Union of India (1996) 3 SCC 690, the Supreme Court of India observed that a non‑obstante clause may be used as a legislative device to modify the ambit of the provision or law mentioned in the clause or to override it in specified circumstances, and that while interpreting a non‑obstante clause, the court must find the extent to which the legislature intended to give it an overriding effect. (b) In Central Bank of India versus State of Kerala (2009) 4 SCC 94, the Supreme Court of India held that while interpreting a non‑obstante clause the court must ascertain the extent to which the legislature intended to give it an overriding effect. (c) In A.G. Varadarajulu and Anr. versus State of Tamil Nadu (1998) 4 SCC 231, the Supreme Court of India observed that it is well‑settled that while dealing with a non‑obstante clause under which the legislature wants to give overriding effect to a section, the court must try to find the extent to which the legislature intended to give one provision overriding effect over another provision. The effect of insertion of a non‑obstante clause into a provision in legislation is that the consideration arising from the provisions sought to be excluded shall be excluded, vide Madhav Rao Scindia versus Union of India (1971) 1 SCC 85., Applying the aforesaid principles to interpret Section 3 of the 2017 Act, it is observed that the non‑obstante clause contained in the provision has the effect of overriding the provisions of the Act as they are not applicable to the processes under the 2016 Ordinance and the 2017 Act. It is significant to note that the provision contains a non‑obstante clause which reads, 'notwithstanding anything contained in the Act or any other law for the time being in force'. This is rightly so as the demonetisation is not in exercise of the powers under sub‑section (2) of Section 26 of the Act. However, Section 3 of the 2017 Act goes on to state that the specified bank notes which have ceased to be legal tender, in view of the notification dated 8th November 2016 issued under sub‑section (2) of Section 26 of the Act, shall cease to impose liabilities on the Bank under Section 34 of the Act and shall cease to have the guarantee of the Central Government under sub‑section (1) of Section 26 of the Act. Therefore, while the impugned gazette notification dated 8th November 2016 has been admittedly issued exercising powers under sub‑section (2) of Section 26 of the Act, Section 3 of the 2017 Act also states that it is notwithstanding anything contained in the Act. If it is so, then the impugned notification could not have been issued invoking sub‑section (2) of Section 26 of the Act. The liability could have ceased only if the power exercised by the Central Government for the issuance of the notification dated 8th November 2016 was under sub‑section (2) of Section 26 of the Act on the recommendation made by the Central Board of the Reserve Bank of India. That is, when the initiation of demonetisation or the proposal came from the Central Board of the Reserve Bank of India, leading to the issuance of the notification by the Central Government. Had the measure of demonetisation been carried out by way of enactment of a plenary legislation, then the non‑obstante clause could have been employed to exclude the applicability of the Act. However, having sought to rely on sub‑section (2) of Section 26 of the Act to issue the notification, not only is the non‑obstante clause misplaced but it also gives rise to a contradiction as to on what basis the notification dated 8th November 2016 has been issued., Affidavits and record of the case: It has been observed in the preceding paragraphs that when the proposal to carry out demonetisation originates from the Central Government, irrespective of whether or not the Bank concurs with or endorses such proposal, the Central Government would have to take the legislative route through a plenary legislation and cannot proceed with demonetisation by simply issuing a notification., Having observed so, it is necessary to examine the proposal to carry out demonetisation in the present case, which originated from the Central Government. For this purpose, reference may be had to the recitals of the affidavits filed by the Union of India and the Reserve Bank of India, and, to the extent permissible, to the records submitted by the Union of India and the Bank in a sealed cover., I have perused the following photocopies of the original records submitted on behalf of the Union of India and the Reserve Bank of India: (i) Letter by the Secretary, Department of Economic Affairs, Ministry of Finance, dated 7th November 2016, bearing F. No. 10.03/2016 Cy.I, addressed to the Governor of the Bank; (ii) Draft memorandum of the Deputy Governor of the Bank, placed before the Central Board of the Bank at its 561st meeting; (iii) Minutes of the 561st meeting of the Central Board of the Bank, convened at New Delhi on 8th November 2016 at 05:30 p.m., and signed on 15th November 2016; (iv) Letter addressed by the Deputy Governor of the Bank to the Central Government on 8th November 2016., On a reading of the records listed hereinabove, the following facts emerge: (1) A letter bearing F. No. 10.03/2016 Cy.I dated 7th November 2016 was addressed by the Secretary, Ministry of Finance, Department of Economic Affairs, Government of India, to the Governor of the Reserve Bank of India, referring to certain facts and figures to indicate two major threats to the security and financial integrity of the country: (a) fake infusion of currency notes (FICN); and (b) generation of black money in the Indian economy. The desire of the Central Government to proceed with the measure of demonetisation was expressed in the said letter and a request was made to the Bank to consider recommending such measure in terms of the relevant clauses of the Act. (2) The draft memorandum of the Deputy Governor of the Bank, placed before the Central Board of the Reserve Bank of India, categorically states that the need for a meeting to deliberate on the proposed measure of demonetisation had arisen pursuant to the letter addressed to the Bank from the Central Government dated 7th November 2016. The draft memorandum further records that the Government had recommended that the withdrawal of the tender character of existing Rs.500/- and Rs.1,000/- notes was appropriate. The document also records that, as desired by the Central Government, a draft scheme for implementation of demonetisation had been enclosed. (3) In view of the contents of the draft memorandum, the Central Board of the Reserve Bank of India in its 561st meeting commended the Central Government’s proposal for demonetisation and directed that the same be forwarded to the Central Government. (4) Accordingly, a letter was addressed by the Deputy Governor of the Bank to the Central Government on 8th November 2016, stating that the proposal of the Central Government pertaining to withdrawal of legal tender of bank notes of denominations Rs.500/- and Rs.1,000/- was placed before the Central Board of the Reserve Bank of India in its 561st meeting and that the necessary recommendation to proceed with the proposal had been obtained from the Board., On a comparative reading of the records submitted by the Union of India as well as the Reserve Bank of India, it becomes crystal clear that the process of demonetisation of all series of bank notes of denominations Rs.500/- and Rs.1,000/- commenced/originated from the Central Government. The fact is crystalised in the communication addressed by the Secretary, Department of Economic Affairs, Ministry of Finance, dated 7th November 2016 to the Governor of the Bank. The emphasized phrases clearly indicate that the proposal for demonetisation was from the Central Government. In substance, the Central Government sought the opinion or advice of the Bank on such proposal. The use of phrases such as 'as desired by the Central Government', 'Government had recommended the withdrawal of the legal tender of existing Rs.500/- and Rs.1,000/- notes', 'recommendation has been obtained', etc., are self‑explanatory. This demonstrates that there was no independent application of mind by the Bank. Neither was there any time for the Bank to apply its mind to such a serious issue. This observation is made having regard to the fact that the entire exercise of demonetisation of all series of bank notes of Rs.500/- and Rs.1,000/- was carried out in twenty‑four hours., The following points emerge on perusal of the affidavits submitted on behalf of the Union of India: (1) The Central Board of the Reserve Bank of India made a specific recommendation to the Central Government on 8th November 2016 for the withdrawal of legal tender character of the existing series of Rs.500/- and Rs.1,000/- bank notes, which could tackle black money, counterfeiting and illegal financing. The Bank also proposed a draft scheme for the implementation of the recommendation. (2) The consultations between the Central Government and the Bank began in February 2016; however, the process of consolidation and decision making were kept confidential. (3) The Bank and the Central Government were together engaged in the finalisation of new designs, development of security inks and printing plates for the new designs, change in specifications of printing machines and other critical aspects., The following points emerge upon perusal of the affidavits submitted on behalf of the Reserve Bank of India: (1) A letter dated 7th November 2016 was received by the Bank from the Ministry of Finance, Government of India, which contained a proposal to withdraw the legal tender character of existing Rs.500/- and Rs.1,000/- bank notes. (2) The proposal was considered, together with a draft scheme for implementing the withdrawal, at the 561st meeting of the Central Board of Directors of the Bank, held on 8th November 2016 at 05:30 p.m. at New Delhi. (3) The Central Board of Directors was assured that the matter had been the subject of discussion between the Central Government and the Bank for six months and that the Central Government would take adequate mitigating measures to contain the use of cash. (4) The Board, having observed that the proposed step presents a big opportunity to advance the objects of financial inclusion and incentivising use of electronic modes of payment, recommended the withdrawal of legal tender of old bank notes in the denominations Rs.500/- and Rs.1,000/-., On a conjoint reading of the affidavits submitted by the Union of India and the Bank, the following deductions may be drawn: (1) The Central Government, in its letter dated 7th November 2016 addressed to the Bank, proposed to withdraw the legal tender character of existing Rs.500/- and Rs.1,000/- bank notes. (2) The Central Board of the Reserve Bank of India, at its 561st meeting held on 8th November 2016, resolved that the withdrawal of legal tender of old bank notes in the denominations Rs.500/- and Rs.1,000/- be made. (3) The objects guiding the Board’s opinion were two‑fold: first, pertaining to financial inclusion, and second, to incentivise the use of electronic modes of payment. (4) The object guiding the Government’s proposal to withdraw currency of the specified denominations was to tackle black money, counterfeiting and illegal financing., In my view, there is a contradiction as to the subject of demonetisation, as well as the object thereof, as stated by the Bank versus the Central Government, as discernible from the affidavits. The Bank’s affidavit states: Subject of demonetisation – old bank notes in the denominations Rs.500/- and Rs.1,000/-; Object of demonetisation – financial inclusion and incentivising use of electronic modes of payment. The Central Government’s affidavit states: Subject of demonetisation – existing Rs.500/- and Rs.1,000/- bank notes; Object of demonetisation – to tackle black money, counterfeiting and illegal financing.
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On 8 November 2016 the Government issued a notification concerning demonisation. A close reading of that notification, together with the records, reveals several points. First, the proposal for demonisation originated from the Central Government in a letter addressed to the Reserve Bank of India dated 7 November 2016; the recommendation did not originate from the Bank under subsection (2) of Section 26 of the Reserve Bank of India Act, but was obtained from the Bank in the form of an opinion on the proposal. Such an opinion cannot be treated as a recommendation required by the Central Government to proceed under subsection (2) of Section 26. Second, even assuming the opinion were a recommendation, the recommendation is void because it pertained to demonisation of all series of bank notes of denominations Rs 500 and Rs 1,000. The term “any” in subsection (2) of Section 26 cannot be interpreted to mean “all”, as that would vest unguided and expansive discretion with the Central Board of the Reserve Bank of India. Third, the notification expressly states that it is issued under subsection (2) of Section 26; therefore Section 3 of the Ordinance and Act could not, in the non‑obstante clause, state that subsection (2) of Section 26 is not applicable. Fourth, demonisation could not be carried out by issuing a notification under subsection (2) of Section 26; Parliament has competence to carry out demonisation under Entry 36 of List I of the Seventh Schedule of the Constitution, and the Central Government could not have exercised that power by an executive notification., Legal principles applicable in this case include the maxim that a power must be exercised in the manner prescribed or not at all, expressed in Latin as *expressio unius est exclusio alterius*. This principle, together with the well‑known principle of discretion in administrative law, is relevant to the present controversy., The Supreme Court of India has applied this maxim in several decisions. In *Parbhani Transport Co‑operative Society Ltd. v. Regional Transport Authority, Aurangabad* (1960) 3 SCR 177, the Court observed that an expressly laid down mode of doing something necessarily implies a prohibition of doing it in any other way. In *Dipak Babaria v. State of Gujarat* (AIR 2014 SC 1972), the Court set aside the sale of agricultural land because the procedure prescribed under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 was not followed, holding that any alternate procedure was forbidden. In *Kameng Dolo v. Atum Welly* (AIR 2017 SC 2859), the election of an unopposed candidate was declared invalid because the nomination of the opponent was not withdrawn in the manner mandated by statute. In *The Tahsildar, Taluk Office, Thanjore v. G. Thambidurai* (AIR 2017 SC 2791), the assignment of land was cancelled for non‑compliance with statutory requirements. In *Union of India v. Charanjit S. Gill* (2000) 5 SCC 742, the Court held that notes appended to the Army Act, 1950 could not be read as part of the Act and could not create rights or powers not conferred by the statute., The foregoing discussion shows that when a statute prescribes a specific procedure to achieve a desired end, that procedure cannot be substituted by an alternative not contemplated by the statute. Applying this principle, the demonisation proposal, which originated from the Central Government, could not be effected merely by issuing a notification under subsection (2) of Section 26 of the Reserve Bank of India Act. The provision does not apply where the proposal originates from the Central Government, and therefore the notification dated 8 November 2016 was based on an incorrect understanding of subsection (2) of Section 26. The powers of the Central Board of the Reserve Bank of India and the Central Government are distinct with respect to demonisation., The second legal principle concerns the exercise of discretion in administrative law. Lord Halsbury, in *Sharp v. Wakefield* (1891) AC 173, described discretion as the requirement that a decision be made according to reason and justice, not according to private opinion, and that it must be exercised within the limits that an honest person competent to discharge his office ought to observe., It is a well‑established rule that discretionary power must be exercised by the authority to whom the statute entrusts it. When an authority delegates its discretion to a higher authority, the decision is invalid. The petitioners contend that subsection (2) of Section 26 implicitly requires both the Central Board of the Reserve Bank of India and the Central Government to devote adequate time and attention before proceeding with demonisation. They argue that this requirement was abandoned: the Central Government wrote to the Reserve Bank of India on 7 November 2016 proposing demonisation of all series of Rs 500 and Rs 1,000 notes; the Board met on 8 November 2016 at 5:30 p.m., and the gazette notification was issued shortly thereafter. This rapid sequence indicates that the Board had hardly twenty‑four hours to consider the proposal, and that its opinion was given on the assurance of the Central Government rather than on an independent application of mind., The Central Government cannot, under the guise of seeking an opinion, obtain a recommendation from the Reserve Bank of India and then issue a gazette notification as if acting under subsection (2) of Section 26. Such a procedure contradicts the import of subsection (2), because the Central Government initiated the process and merely secured the Bank’s imprimatur. The Reserve Bank of India has no jurisdiction to recommend demonisation of all series of all denominations; its power is limited to recommending that a particular series of a particular denomination cease to be legal tender., Consequently, the Central Government cannot rely on a semblance of recommendation from the Reserve Bank of India when it initiates demonisation. Any opinion from the Board must be independent, given after meaningful discussion, and may be considered but is not binding. Moreover, the Central Government failed to indicate that the demonetised currency had lost the guarantee provided by subsection (1) of Section 26 in the impugned notification, necessitating the Ordinance of 30 December 2016. It is also unclear whether the Bank had arranged for sufficient new notes, or whether the Department of Legal Affairs was consulted, given the legal implications of demonisation., In my considered view, the demonisation action initiated by the Central Government through the notification dated 8 November 2016 was an exercise of power contrary to law and therefore unlawful. Accordingly, the 2016 Ordinance and the 2017 Act are also unlawful. However, because the demonisation process has been in effect since that date, the status quo ante cannot be restored., The petitioners submit that about 86 % of the total currency in circulation was demonised, causing severe financial, socio‑economic and psychological hardship to the people of India. They question whether the Reserve Bank of India had foreseen the consequences of demonising such a large volume of notes. Although the objective of the Central Government may have been sound, the manner in which it was achieved and the procedure followed were not in accordance with law. It is recorded that around 98 % of the value of the demonised currency has been exchanged for legal tender, and a new series of Rs 2,000 notes was released. Nevertheless, the Supreme Court does not base its decision on the effectiveness of legislation, but solely on its legality; any relief granted will be independent of the measure’s success., The learned Attorney General for the Union of India argued that the objectives of the Central Government were sound, just and proper, but the manner of achievement was not in accordance with law. He also contended that the petitions have become infructuous and purely academic because demonisation has already been effected, and therefore the present cases are of academic significance only. Nonetheless, the nature of relief that the Court may mould must be examined., Several judgments are relevant. In *S.R. Bommai v. Union of India* (AIR 1994 SC 1918), the Court held that substantive relief may be granted only if the issue remains live, but the Court may prospectively declare a law for posterity. In *Golak Nath v. State of Punjab* (1967) 2 SCR 762, the Court declared that it may find a law invalid and restrict its operation to the future. *Orissa Cement Ltd. v. State of Orissa* (1991) 1 SCC 430 explained that declaration of invalidity and determination of relief are distinct, and the Court has discretion to mould the relief., The present case requires determination of whether the challenge to the validity of the Central Government’s decision dated 8 November 2016 to demonise all Rs 500 and Rs 1,000 notes can be adjudicated after more than six years, and what relief, if any, the Court may grant at this stage., The controversy centres on the true meaning and interpretation of subsection (2) of Section 26 of the Reserve Bank of India Act. The question is whether the Court can declare the law as to the validity of an action that has already been fully carried out. The Court has previously held, in *S.R. Bommai*, that it can declare a law for posterity even when no substantive relief is possible, and such a declaration would have prospective effect, deterring future unlawful measures. Such declarations may be made under Article 141 of the Constitution, and their effect may be moulded or restricted under Article 142., The decision in *Jayantilal Ratanchand Shah & Devkumar Gopaldas Aggarwal v. Reserve Bank of India* (AIR 1997 SC 370) dealt with the constitutional validity of the High Denomination Bank Notes (Demonetisation) Act, 1978. Although the Act was enacted in 1978, its validity was finally declared in 1997. The Court upheld the legislation and clarified the parliamentary power to enact such measures. A similar declaration regarding the validity of the impugned notification and the 2016 Ordinance is sought in the present petitions., Conclusions: (i) Under subsection (1) of Section 26 of the Reserve Bank of India Act, every bank note is legal tender throughout India and is guaranteed by the Central Government, subject to subsection (2). (ii) Subsection (2) applies only when a proposal for demonisation is initiated by the Central Board of the Reserve Bank of India by way of a recommendation to the Central Government; the recommendation may concern any specified series of any specified denomination. (iii) The expression “any series of bank notes of any denomination” must be given its plain grammatical meaning, i.e., a specified series of a specified denomination, not all series of all denominations. (iv) Interpreting “any” to mean “all” would vest the Board with unlimited powers, rendering the provision unconstitutional; therefore it is read down to apply only to a particular series of a particular denomination. (v) Upon receipt of a recommendation under subsection (2), the Central Government may accept it or not; if accepted, it may issue a Gazette notification specifying the date from which the specified series shall cease to be legal tender and lose the Government’s guarantee. (vi) The Act does not bar the Central Government from proposing or initiating demonisation under its plenary powers under Entry 36, List I of the Seventh Schedule, but such action must be effected by an Ordinance of the President followed by an Act of Parliament, or by legislation, not by a Gazette notification under subsection (2). (vii) When the Central Government exercises this power, it does so by virtue of Entry 36, List I, which deals with currency, coinage, legal tender and foreign exchange. (viii) The Central Government must seek the opinion of the Reserve Bank of India, which, although not binding, should be independent, frank and given due weight considering the impact on the economy and citizens. (ix) If the Board gives a negative opinion, the Central Government may still proceed, but only through an Ordinance or parliamentary legislation, not by a Gazette notification. (x) Accordingly, the notification dated 8 November 2016 issued under subsection (2) of Section 26 is unlawful, rendering the demonisation of Rs 500 and Rs 1,000 notes void. (xi) Consequently, the subsequent 2016 Ordinance and the 2017 Act incorporating the terms of the impugned notification are also unlawful. (xii)
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However, having regard to the fact that the impugned notification dated 8th November 2016 and the Act have been acted upon, the declaration of law made herein would apply prospectively and would not affect any action taken by the Central Government or the Bank pursuant to the issuance of the Notification dated 8th November 2016. This direction is being issued having regard to Article 142 of the Constitution of India. Hence, no relief is being granted in the individual matters., Before parting, I wish to observe that demonetisation was an initiative of the Central Government, targeted to address disparate evils plaguing the Nation's economy, including practices of hoarding black money, counterfeiting, which in turn enable even greater evils such as terror funding, drug trafficking, emergence of a parallel economy, money laundering including hawala transactions. It is beyond the pale of doubt that the said measure, which was aimed at eliminating these depraved practices, was well-intentioned. The measure is reflective of concern for the economic health and security of the country and demonstrates foresight. At no point has any suggestion been made that the measure was motivated by anything but the best intentions and noble objects for the betterment of the Nation. The measure has been regarded as unlawful only on a purely legalistic analysis of the relevant provisions of the Act and not on the objects of demonetisation., In view of the answer given by me to question number 1 of the reference order, I do not deem it necessary to answer all other questions of the reference order or even the questions reframed by His Lordship B. R. Gavai, Judge, during the course of the judgment except to the extent discussed above. In the result, the writ petitions, special leave petitions and transfer petitions are directed to be posted before the appropriate Bench after seeking orders from the Honorable Chief Justice of India. I would like to acknowledge and place on record my appreciation for the learned Attorney General for India, all learned senior counsel, learned instructing counsel as well as the learned counsel for their assistance in the matter.
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Supreme Court of India. Petitioner: In Re. Respondent: Bar Council of Uttar Pradesh. Counsel for Petitioner: Suo Motu Honourable Justice Pritinker Diwaker, Chief Justice Honourable Mahesh Chandra Tripathi, Judge., Owing to the ongoing lawyers' strike on account of the incident that occurred in District Hapur, the Bar Council of Uttar Pradesh decided to abstain from judicial work on 30 August 2023 and thereafter resolved to abstain from judicial work for a further period of three days, i.e., 4, 5 and 6 September 2023., Considering the ongoing strike, which creates huge loss to the litigants, we took judicial notice of it and requested the learned Presidents and Secretaries of the High Court Bar Association and the Advocates Association, as well as the Chairman and the members of the Bar Council of Uttar Pradesh, to address the Supreme Court of India in the present matter. Accordingly we assembled at 2:30 pm and the request conveyed by this Court was graciously accepted., Sri Ashok Singh, learned President of the High Court Bar Association, submitted that the lawyers are aggrieved by the non‑inclusion of any judicial officer in the Special Investigation Team, which is already constituted by the State to look into the incident that occurred at Hapur. He submitted that the State action is wholly one‑sided, as atrocities were actually committed by the local administration and the local police had assaulted the lawyers. He urged that only one‑sided FIR has been lodged in the matter and, despite the best efforts of the lawyers, their FIR has not been lodged to date. He further apprised the Court that the Chairman of the Bar Council of Uttar Pradesh and other members have gone to District Hapur for further deliberations with the local Bar members to ascertain the ground realities. He placed reliance on the Press Note issued by the Bar Council of Uttar Pradesh dated 3 September 2023, wherein it was resolved that they will continue to abstain from judicial work on 4, 5 and 6 September 2023 and, thereafter, will decide further course of action., Sri Singh submitted that if the Special Investigation Team, as constituted, is allowed to proceed it would cause great injustice to lawyers because the guilty police personnel shall be the judge in their own cause. The argument is that one cannot be a judge in his own cause and such an act would go contrary to the principles of natural justice., In this backdrop, we called upon Shri Manish Goyal, learned Additional Advocate General, to examine the feasibility of inclusion of a judicial officer in the Special Investigation Team so as to make the body more inclusive and transparent. Shri Manish Goyal sought a short time to obtain appropriate instructions in the matter., Accordingly, the matter was adjourned to be taken up again at 4:30 pm., We re‑assembled at 4:30 pm when Shri Manish Goyal, on the instructions obtained from the State, made a statement that the State Government has no objection to the inclusion of a judicial officer in the Special Investigation Team and has suggested the names of three judicial officers of the rank of District Judge., Before proceeding further, it is worth noticing that the act of Bar Associations and Councils in resorting to strike has been consistently frowned upon by this Court and also by the Honourable Supreme Court of India, as such acts by lawyers do great damage not only to the litigants but also affect the administration of justice itself, which is an important facet of our constitutional democracy. The representative body of advocates has the right to raise grievance on behalf of their members, but it must be in a manner that the ultimate cause of justice is not defeated. As responsible citizens and soldiers of the justice dispensation system, we expect the lawyers and their representative bodies to be conscious of their obligations to society at large and to act in a responsible manner., We deem it appropriate to draw guidance from the words of wisdom expressed by the Supreme Court of India in Ex. Capt. Harish Uppal vs. Union of India and another, All India Reporter, 2003 Supreme Court 736; Supreme Court Bar Association v. Union of India (1998) 4 Supreme Court Cases 409; Krishnakant Tamrakar v. State of Madhya Pradesh, 2018 (17) Supreme Court Cases 27; and Hussain v. Union of India., In Ex. Capt. Harish Uppal (supra), the Court observed: 'Thus the law is already well settled. It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing lack of confidence in judicial officers it would amount to scandalising the courts to undermine their authority and thereby the advocates would have committed contempt of court. Lawyers have known, at least since Mahabir Singh's case (supra), that if they participate in a boycott or a strike, their action is ex facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of courts. Lawyers have also known, at least since Roman Services' case, that the advocates would be answerable for the consequences suffered by their clients if the non‑appearance was solely on grounds of a strike call.', It must also be remembered that an advocate is an officer of the court and enjoys special status in society. Advocates have obligations and duties to ensure smooth functioning of the court. They owe a duty to their client. Strikes interfere with the administration of justice. They cannot thus disrupt court proceedings and put the interests of their clients in jeopardy. In the words of Mr. H. M. Seervai, a distinguished jurist: 'Lawyers ought to know that at least as long as lawful redress is available to aggrieved lawyers, there is no justification for lawyers to join an illegal conspiracy to commit a gross, criminal contempt of court, thereby striking at the heart of the liberty conferred on every person by our Constitution. Strike is an attempt to interfere with the administration of justice. The principle is that those who have duties to discharge in a court of justice are protected by the law and are shielded by the law to discharge those duties; the advocates in return have a duty to protect the courts. For, once conceded that lawyers are above the law and the law courts, there can be no limit to lawyers taking the law into their hands to paralyse the working of the courts.' In my submission, it is high time that the Supreme Court of India and the High Court of Uttar Pradesh make it clear beyond doubt that they will not tolerate any interference from anybody or any authority in the daily administration of justice. For in no other way can the Supreme Court of India and the High Court of Uttar Pradesh maintain the high position and exercise the great powers conferred by the Constitution and the law to do justice without fear or favour, affection or ill will., It was expected that, having known the well‑settled law and having seen that repeated strikes and boycotts have shaken the confidence of the public in the legal profession and affected the administration of justice, there would be self‑regulation. The interim order was passed in the hope that with self‑restraint and self‑regulation the lawyers would retrieve their profession from lost social respect. Unfortunately, strikes and boycott calls are becoming a frequent spectacle. Strikes, boycott calls and even unruly and unbecoming conduct are becoming a frequent spectacle. On the slightest pretense, strikes and/or boycott calls are resorted to. The judicial system is being held to ransom. Administration of law and justice is threatened. The rule of law is undermined., In light of the above, we hope and trust that the Bar Council of Uttar Pradesh, as well as the respective Bar Associations across the State, this Court and its Lucknow Bench of the High Court of Uttar Pradesh shall introspect and act in due deference to the law laid down by the Honourable Supreme Court of India such that this Court is not required to take any unpleasant steps in the matter and forthwith resume their work. We also make it clear that the doors of this Court will remain open in the event any unjust treatment is shown to any aggrieved person. We direct the State Government to include Sri Hari Nath Pandey, Retired Principal Judge, Family Court, Lucknow, as a member in the Special Investigation Team, which is already constituted by the State Government to look into the incident in question. The Special Investigation Team will proceed to conduct its enquiry and submit its report in a sealed cover at the earliest possible. An interim report shall be submitted before the Supreme Court of India by the next date fixed. The Superintendent of Police, Hapur shall ensure that the complaint lodged by the advocates regarding the incident is also duly registered and investigated as per law., The matter is posted again for hearing on 15 September 2023 at 2:00 pm.
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Case: WRIT C No. 26355 of 2022. Petitioner: Narendra Singh Panwar. Respondent: Paschimanchal Vidyut Vitran Nigam Limited and two others. Counsel for petitioner: Ashish Kumar Singh, Ajay Kumar Singh. Counsel for respondents: C.S.C., Kartikeya Saran, Pranjal Mehrotra, Hon'ble Mrs. Sunita Agarwal, Hon'ble Vipin Chandra Dixit. Heard: Sri Ashish Kumar Singh, learned counsel for the petitioner; Sri Pranjal Mehrotra, learned counsel for respondents Nos. 1 & 2 and learned Standing Counsel for the State respondents., The present writ petition is directed against the notice of demand dated 30.06.2022 under Section 3 read with Section 5 of the Uttar Pradesh Government Electrical Undertakings (Dues Recovery) Act, 1958, for recovery of electricity dues of the company M/s Trimurti Concast Pvt Ltd, a company incorporated under the Companies Act, 1956. The petitioner is one of the two directors of the aforesaid company. The other director, Sri Ashok Sharma s/o Avtar Chand Sharma, is also a noticee as indicated in the impugned notice., The company M/s Trimurti Concast Pvt Ltd is in default of the dues of the respondent corporation and will be referred to as the ‘defaulter company’ hereinafter., The brief facts relevant to decide the controversy are that, on an application filed by M/s Ram Alloys Casting Pvt Ltd under Section 7 of the Insolvency and Bankruptcy Code, 2016, the defaulter company went into insolvency. At the time of filing the present petition, the insolvency resolution process with respect to the defaulter company (also referred to as the ‘corporate debtor’) had already been commenced. By an order dated 22.03.2022, the National Company Law Tribunal (NCLT) approved the resolution plan and, on the application filed by respondent No. 1, Paschimanchal Vidyut Vitran Ltd, for its claim of electricity dues, the Tribunal directed that, since the approval of the resolution plan was under consideration, the claim should be considered before the approval of the resolution plan by the adjudicating authority. The claim of the applicant corporation was to be considered along with other operational creditors for whom the resolution applicant had made specific provisions in the resolution plan., It is contended that after the NCLT order dated 22.03.2022, the electricity connection of the defaulter company M/s Trimurti Concast Pvt Ltd was permanently disconnected on 30.08.2022, continuing the temporary disconnection made on 09.07.2019. The recovery sought by the demand notice dated 30.06.2022, issued in the names of both directors of the defaulter company, is the subject matter of this challenge., A copy of the demand notice was forwarded to the District Magistrate, Muzaffarnagar on 02.08.2022 in FORM‑2 by the Executive Engineer, Paschimanchal Vidyut Vitran Nigam Ltd, for making recovery of dues as arrears of land revenue., The learned counsel for the petitioner argued that the defaulter company is a corporate debtor within the meaning of the Insolvency and Bankruptcy Code, 2016 since the commencement of the insolvency proceedings on 24.12.2019. With the approval of the resolution plan and the recognition of respondent No. 1 as an operational creditor, the dues of the respondent corporation were to be settled by specific provision in the resolution plan at the time of issuance of the demand notice. Once the company went into insolvency, the outstanding electricity dues could not be recovered from its directors, who are not personally liable, and no other mode of recovery could be adopted., The contention is that the insolvency resolution plan approved by the NCLT is binding on the corporate debtor as well as all other stakeholders. The moratorium period under Section 14 of the Insolvency and Bankruptcy Code, 2016 began on 24.12.2019. With the NCLT order recognizing the respondent corporation as an operational creditor, all claims against the corporate debtor stood extinguished., It was further submitted that after filing the present writ petition, the liquidation process was initiated under Section 33 of the Insolvency and Bankruptcy Code, 2016 and the distribution of assets of the defaulter company was made in accordance with Section 53 of the Code, with the approval of the resolution plan. The waivers, reliefs and exemptions granted by the NCLT order dated 22.03.2022 prohibit a creditor from initiating recovery of claims not part of the resolution plan, and all encumbrances on the assets of the corporate debtor prior to the plan stood permanently extinguished as provided in the Companies Act, 2013., The submission is that the Insolvency and Bankruptcy Code, 2016 is a parliamentary legislation and, by virtue of Section 238, has an overriding effect over any inconsistent provision in any other law in force. Consequently, the procedure of recovery of electricity dues under the Electricity Act, 2003 read with the Uttar Pradesh Electricity Supply Code, 2005 for issuance of demand under the Uttar Pradesh Government Electrical Undertakings (Dues Recovery) Act, 1958 is not applicable. No recovery can be made from the petitioner, who is a director of the corporate debtor. With the distribution of assets under Section 53, the assets of the defaulter company stood dissolved under Section 54. Once the assets are liquidated, the petitioner no longer remains a director and the demand notice against the directors must be quashed., Reliance is placed on the Supreme Court decision in Indian Overseas Bank v. RCM Infrastructure Ltd, AIR Online 2022 SC 736, to argue that the Insolvency and Bankruptcy Code, 2016 is a complete code and, under Section 238, overrides any inconsistent law., It was argued that once the Corporate Insolvency Resolution Process is initiated, there is a complete prohibition for any action, including action against the corporate debtor’s property. The Apex Court held that the bank could not continue proceedings under the SARFAESI Act, 2002 once the CIRP was initiated and the moratorium was ordered., The decisions of the National Company Law Tribunal, Allahabad and the National Company Law Appellate Tribunal, New Delhi in Paschimanchal Vidyut Vitran vs Raman Ispat Pvt Ltd and others dated 15.05.2019 were placed before us. The decisions state that after a liquidation order under Section 33, the liquidator must form the liquidation estate of the corporate debtor under Section 36(1), consolidate the claims of creditors under Section 38, and distribute the proceeds in the order of priority prescribed under Section 53., In that NCLAT case, the District Collector issued a notice for recovery of outstanding electricity dues by auction of movable and immovable properties of the corporate debtor. The Court held that the Insolvency and Bankruptcy Code, being a subsequent Act of Parliament, overrides the Electricity Act, 2003; the moratorium under Section 33 prevents any suit or legal proceeding against the corporate debtor, and only the liquidator can admit or reject claims under Sections 35, 38, 39 and 40., It was argued that the same principle applies to the present facts and no recovery after liquidation of the assets of the defaulter company can be made from the petitioner, an ex‑director of the company., Reliance is placed on the Division Bench of this Court in Writ C No.14547 of 2016 (Raghvendra Garg vs State of Uttar Pradesh and others) to submit that, in the absence of any statutory provision, no recovery can be made from the personal assets of the director for outstanding dues of the defaulter company., It was further argued that the expression ‘consumer’ defined in Section 2(15) of the Electricity Act, 2003 does not cover a director where the body corporate is the consumer; therefore recovery cannot be enforced against the director., Counsel for the corporation submitted that Clause 4.3(f) and Clause 6.15 of the Uttar Pradesh Electricity Supply Code, 2005 empower the electricity department to issue recovery proceedings against the directors of the company and that any payment due to the licencee can be recovered as arrears of land revenue under the Uttar Pradesh Government Electrical Undertakings (Dues and Recovery) Act, 1958., Annexure‑1 to the counter‑affidavit shows that the total outstanding dues of the corporation against the defaulter company amount to approximately Rs. 9 crore, of which Rs. 6,62,848 has been directed to be distributed as per the approved resolution plan dated 22.03.2022., A letter dated 11.01.2018 of the Managing Director of Uttar Pradesh Power Corporation Ltd was placed before us, directing the Managing Directors of all DISCOMs to recover electricity dues from the director/owner of the defaulter company. Clause 4.3(f)(v) of the Uttar Pradesh Electricity Supply Code, 2005 provides that the directors of the company shall be liable for the electricity dues of the company., The defaulter company entered into an agreement dated 08.04.2013 with the licencee, wherein one of its directors, Sri Ashok Kumar, was the signatory. The application form for supply of electricity, together with the agreement, includes an affidavit by Director Ashok Sharma undertaking personal guarantee for payment of dues., No rejoinder affidavit was filed. However, the petitioner’s counsel argued that Clause 4.3(f)(v) cannot be invoked because it is ultra vires, citing Writ C No.8370 of 2016 (Izharul Hauque vs State of Uttar Pradesh and others), where the Court held that directors do not fall within the meaning of ‘consumer’ under Section 2(15) of the Electricity Act, 2003 and the subordinate legislation making them liable is ultra vires., We must first consider the petitioner’s submissions challenging recovery against the director in view of the insolvency proceedings and liquidation of the company’s assets, and examine the effect of the overriding provisions of Section 238 of the Insolvency and Bankruptcy Code, 2016., It is well settled that the Insolvency and Bankruptcy Code, 2016 is a complete code and, under Section 238, its provisions prevail over any inconsistent law. The Code is intended to revive the corporate debtor, not merely to facilitate money recovery, and provides for reorganisation, insolvency resolution, maximisation of asset value, protection of stakeholder interests and the establishment of the Insolvency and Bankruptcy Board of India., The Amendment Act 8 of 2018, effective from 23.11.2017, substituted Section 2(e) to read: ‘(e) personal guarantors to corporate debtors’., In the instant case, recovery of electricity dues was initiated against the directors while the defaulter company was in insolvency. The resolution plan was approved by the NCLT on 22.03.2022. The petitioner claims that the assets of the company have been liquidated during the pendency of the present petition, although no material on record confirms this., The waivers, reliefs and exemptions granted by the NCLT order dated 23.02.2022 relate to claims against the corporate debtor and its assets. The order makes clear that after payment of dues as per the resolution plan, a creditor cannot initiate proceedings for recovery of claims not part of the plan, and all encumbrances on the assets prior to the plan are extinguished under the Companies Act, 2013., The question before us is the personal liability of the directors of the defaulter company that went into insolvency., The respondent corporation states that Director Ashok Sharma, at the time of submitting the electricity supply application, executed an affidavit undertaking personal guarantee to deposit any dues as directed by the Executive Engineer, Uttar Pradesh Power Corporation Ltd., The agreement for supply of electrical energy dated 08.04.2013 was signed by Director Ashok Sharma as the ‘consumer’., Although the agreement binds the defaulter company, the director’s undertaking makes him a personal guarantor of the corporate debtor, i.e., M/s Trimurti Concast Pvt Ltd., The present petition has been filed by one director, Narendra Singh Pawar, seeking to set aside the demand notice dated 30.06.2022 issued jointly in the names of both directors. The other director has not joined the petition. The relief sought is the quashing of the entire demand notice., The Supreme Court in State Bank of India vs V. Ramakrishna and others (2018) 17 SCC 394 examined whether the moratorium under Section 14 of the Insolvency and Bankruptcy Code, 2016 applies to a personal guarantor of a corporate debtor., The Court observed that Section 14 lists prohibitions that apply only to the corporate debtor and makes no mention of a personal guarantor; therefore the moratorium does not extend to personal guarantors., Arguments that Section 60 and Section 2(e) extend the moratorium to guarantors were rejected. Section 60(2) and (3) merely provide for transfer of proceedings to the NCLT, but do not create a moratorium for personal guarantors., Section 31 of the Insolvency and Bankruptcy Code states that once a resolution plan is approved, it is binding on the corporate debtor as well as the guarantor, and the guarantor cannot escape payment., The Court held that the object of the Code is not to allow personal guarantors such as directors to escape liability; the moratorium does not cover them., The Insolvency Law Committee report dated 26.03.2018 notes that under the Indian Contract Act, 1872, the liability of a surety is co‑extensive with that of the principal debtor, and the creditor may proceed against either or both.
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The Committee noted that this characteristic of such contracts i.e. of having remedy against both the surety and the corporate debtor, without the obligation to exhaust the remedy against one of the parties before proceeding against the other, is of utmost important for the creditor and is the hallmark of a guarantee contract, and the availability of such remedy is in most cases the basis on which the loan may have been extended. The Committee further noted that a literal interpretation of Section 14 is prudent, and a broader interpretation may not be necessary in the above context. The assets of the surety are separate from those of the corporate debtor, and proceedings against the corporate debtor may not be seriously impacted by the actions against assets of third parties like sureties. Additionally, enforcement of guarantee may not have a significant impact on the debt of the corporate debtor as the right of the creditor against the principal debtor is merely shifted to the surety, to the extent of payment by the surety. Thus, contractual principles of guarantee require being respected even during a moratorium and an alternate interpretation may not have been the intention of the Code, as is clear from a plain reading of Section 14., Further, since many guarantees for loans of corporates are given by its promoters in the form of personal guarantees, if there is a stay on actions against their assets during a Corporate Insolvency Resolution Process, such promoters (who are also corporate applicants) may file frivolous applications to merely take advantage of the stay and guard their assets. In the judgments analysed in this relation, many have been filed by the corporate applicant under Section 10 of the Insolvency and Bankruptcy Code and this may corroborate the above apprehension of abuse of the moratorium provision. The Committee concluded that Section 14 does not intend to bar actions against assets of guarantors to the debts of the corporate debtor and recommended that an explanation to clarify this may be inserted in Section 14 of the Code. The scope of the moratorium may be restricted to the assets of the corporate debtor only., In Laxmi Pat Surana (supra) while dealing with the action under Section 7 of the Insolvency and Bankruptcy Code 2016 against the corporate debtor, it was noted that Section 7 is an enabling provision, which permits the financial creditor to initiate a Corporate Insolvency Resolution Process against a corporate debtor. The corporate debtor can be the principal borrower. It can also be a corporate person assuming the status of corporate debtor having offered guarantee, if and when the principal borrower/debtor commits default in payment of its debt. It was noted that indisputably a cause of action would enure to the lender (financial creditor) to proceed against the principal borrower, as well as the guarantor in equal measures in case they commit default in repayment of the amount of debt acting jointly and severally. It would still be a case of default committed by the guarantor itself, if and when the principal borrower fails to discharge his obligation in respect of the amount of debt, for the obligation of the guarantor is coextensive and coterminus with that of the principal borrower to defray the debt, as predicated in Section 128 of the Contract Act., In Lalit Kumar Jain vs Union of India and others reported in (2021) 9 Supreme Court Cases 321, the challenge was to the validity of the notifications dated 15 November 2019 issued by the Central Government, Ministry of Corporate Affairs as also the Insolvency and Bankruptcy (Application) to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors Rules, 2019., One of the issues raised before the Supreme Court of India therein, to challenge the said notification was, that by applying the Code to personal guarantors, the protection afforded by law has been taken away. With reference to Sections 128, 133 and 140 of the Indian Contract Act, 1872, it was argued that once a resolution plan is accepted, the corporate debtor is discharged of liability. As a consequence, the guarantor whose liability is co‑extensive with the principal debtor, i.e. the corporate debtor too is discharged of all liabilities. It was urged that the impugned notifications which have the effect of allowing proceedings before the National Company Law Tribunal by applying provisions of Part III of the Code deprive the guarantors of their valuable substantive rights to claim extinction of their liabilities with the discharge of liability of the principal debtor/corporate debtor., This issue was answered considering the provisions of Section 31 of the Insolvency and Bankruptcy Code with regard to approval of resolution plan and the relevant provisions in Sections 128, 129, 130, 131, 133, 134, 140 and 141 of the Indian Contract Act, 1872. The arguments of the petitioners therein were noted in paragraph 118 as under: All creditors and other classes of claimants, including financial and operational creditors, those entitled to statutory dues, workers, etc., who participate in the resolution process, are heard and those in relation to whom the Committee of Creditors accepts or rejects pleas, are entitled to vent their grievances before the National Company Law Tribunal. After considering their submissions and objections, the resolution plan is accepted and approved. This results in finality as to the claims of creditors, and others, from the company (i.e. the company which undergoes the insolvency process). The question which the petitioners urge is that in view of this finality, their liabilities would be extinguished; they rely on Sections 128, 133 and 140 of the Contract Act to urge that creditors cannot therefore, proceed against them separately., Referring to the decisions of the Supreme Court of India in Vijay Kumar Jain vs Standard Chartered Bank reported in (2019) 20 Supreme Court Cases 455; SBI vs V. Ramakrishnan and another (supra); Essar Steel (India) Ltd (Committee of Creditors) vs Satish Kumar Gupta reported in (2020) 8 Supreme Court Cases 531, it was held in paragraph 122 that it is, therefore, clear that the sanction of a resolution plan and finality imparted to it by Section 31 does not per se operate as a discharge of the guarantor's liability. As to the nature and extent of the liability, much would depend on the terms of the guarantee itself. It was, thus, concluded in paragraph 125 as under: In view of the above discussion, it is held that approval of a resolution plan does not ipso facto discharge a personal guarantor of a corporate debtor of her or his liabilities under the contract of guarantee. As held by this court, the release or discharge of a principal borrower from the debt owed by it to its creditor, by an involuntary process, i.e. by operation of law, or due to liquidation or insolvency proceeding, does not absolve the surety/guarantor of his or her liability, which arises out of an independent contract., In view of the above discussions, it is clear that approval of a resolution plan does not ipso facto absolve the surety/guarantor of his or her liability, which arises out of an independent contract of guarantee. To what extent, the liability of a guarantor can be pressed into service would depend on the terms of the guarantee/contract, itself. For the above position of law, the main contention of the learned counsel for the petitioner to challenge the recovery on the ground that approval of the resolution plan in the insolvency proceeding in relation to the defaulter company namely M/s Trimurti Concast Pvt Ltd (corporate debtor) would ipso facto discharge both the Directors of the defaulter Company, one of whom is the petitioner before us, is liable to be turned down., As noted above, another Director of the defaulter company namely Ashok Sharma, who is not before us, claim to have given personal guarantee for discharge of the electricity dues of the defaulter company by filing his affidavit along with the application form submitted by the defaulter consumer company (corporate debtor) for the supply of electricity. To what extent, the contents of the said affidavit would operate as personal guarantee against the said director, is a question which is not to be answered by us as the same has neither been pressed before us nor is required to be answered, in as much as, the challenge to the demand notice by one of the Directors is only on the ground that once the defaulter company went into insolvency, with the approval of a resolution plan under Section 31 of the Insolvency and Bankruptcy Code 2016, with the discharge of the corporate debtor of its liability and subsequent liquidation of the assets of the company, the liability of its Directors stood extinguished, which has been turned down by us for the reasoning given above. Moreover, the signatory director, who claims to have given personal guarantee for the electricity dues is not before us., As to the issue of applicability of Clause 4.3(f)(v) of the Electricity Supply Code, 2005, the arguments with regard to validity of the same or the said provision being ultra vires to the Electricity Act, 2003, made in rejoinder half‑heartedly, cannot be entertained, in as much as, no foundation has been laid in that regard in the writ petition., For the above discussion, it is clarified that the legal issue with regard to the liability of the personal guarantor of the corporate debtor whose liability is co‑extensive with the principal debtor, i.e. the corporate debtor has been answered by us taking into consideration the law laid down by the Supreme Court of India. However, for the rest of the issues, if any, arise with regard to the nature or extent of liability of the petitioner herein or another director of the Company as personal guarantor, the same have not been answered by us as no arguments have been placed in that regard., In view of the above discussion, the challenge to the demand notice for dues of electricity, issued jointly in the name of the Directors of the corporate debtor, the defaulter company which went into insolvency cannot be sustained on the ground that in view of the acceptance of the resolution plan under Section 31 of the Insolvency and Bankruptcy Code, all liabilities of the Directors, who may be the guarantor, stood automatically discharged/extinguished. No other point has been pressed before us.
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March 23, 2022 Supplementary List SG/S Biswas. Writ Petition (Civil) 130 of 2022: The Supreme Court of India, on its own motion, in re: The brutal incident of Bogtui Village, Rampurhat, Birbhum. Writ Petition (Civil) 124 of 2022: Anindya Sundar Das vs. Union of India and others. Writ Petition (Civil) 125 of 2022: Tarunjyoti Tewari vs. Union of India and others. Writ Petition (Civil) 126 of 2022: Priti Kar vs. State of West Bengal and others. Writ Petition (Civil) 129 of 2022: Sayanti Sengupta vs. State of West Bengal and others., Mr. Sabyasachi Chatterjee, Mr. Shamim Ahmed, Mr. Soumya Dasgupta, Ms. Debolina Sarkar, Mr. Koustav Bagchi, Mr. Asfak Ahammed, Mr. Subhrajit Saha, Mr. Rajnil Mukherjee, Mr. Sayan Banerjee, Ms. Anindita Banerjee Saha, advocates for the intervenor in Writ Petition (Civil) 130 of 2022. Mr. Phiroze Edulji, Mr. Nilendu Bhattacharya, and others, advocates for the petitioner in Writ Petition (Civil) 124 of 2022. Mr. Kumar Jyoti Tewari, Ms. Purabi Saha, Mr. Arijit Majumdar, Mr. Uttam Basak, Mr. Saket Sharma, Mr. Arka Bhattacharyya, Mr. Anirban Mitra, Mr. Aniruddha Tewari, Mr. Bijoy Lakhi Seal, advocates for the petitioner in Writ Petition (Civil) 125 of 2022. Mr. Koustav Bagchi, Mr. Debayan Ghosh, advocates for the petitioner in Writ Petition (Civil) 126 of 2022. Mr. Rabi Shankar Chattopadhyay, Mr. Uday Shankar Chattopadhyay, Mr. Santanu Maji, Mr. Jamiruddin Khan, advocates for the petitioner in Writ Petition (Civil) 129 of 2022. Mr. S. N. Mookherjee, learned Advocate General. Mr. Samrat Sen, learned Additional Advocate General. Mr. Anirban Ray, learned Government Pleader. Mr. N. Chatterjee, advocates for the State. Ms. Amrita Pandey, advocate for the Union of India in Writ Petition (Civil) 124 of 2022. Mr. Debasish Tandon, advocate in Writ Petition (Civil) 124 of 2022. Mr. Vipul Kundalia, Ms. Amrita Pandey, advocates for the Central Bureau of Investigation in Writ Petition (Civil) 126 of 2022. Mr. Dhiraj Trivedi, learned Assistant Solicitor General. Mr. Shailendra Kumar Mishra, Mr. Rishav Kumar Thakur, advocates for the respondents No. 1, 3 and 4 in Writ Petition (Civil) 125 of 2022. Mr. Billwadal Bhattacharyya, learned Assistant Solicitor General. Mr. Debu Chowdhury, advocate for the Central Bureau of Investigation in Writ Petition (Civil) 126 and 129 of 2022., We have registered this suo motu petition on the basis of media reports about the unfortunate incident that took place late at night on 21 March 2022 at Bogtui village in Rampurhat, Birbhum, State of West Bengal. Newspaper reports state that miscreants set fire to ten houses in Bogtui village, resulting in the death of at least eight persons, including a child, six women aged between seven and fifty‑two years, and a newly married couple. The suo motu petition has been registered to ensure that a fair investigation takes place and that those responsible for the incident are traced and adequately punished., In this suo motu petition, Mr. Sabyasachi Chatterjee, a practicing advocate of the Supreme Court of India, filed a supplementary affidavit pointing out the following deficiencies in the investigation: (a) no forensic sample has been collected; (b) local villagers are terrorised; (c) no measures have been taken by the police administration to restore normalcy in the area; (d) the villagers are being terrorised by goons of the All India Trinamool Congress so that they cannot even go to the police station to lodge a complaint; (e) the victims who have suffered bodily injury and are presently hospitalised require protection and their statements need to be collected by the police for the purpose of investigation; (f) the evidence needs to be preserved, but it appears that by not taking appropriate measures to preserve the evidence, the police authority is trying to tamper with it; (g) the male members of the village Bagdui, Rampurhat have been forced to leave the village due to fear, and peace must be restored immediately in order to rebuild the confidence of the people., In Writ Petition (Civil) 124 of 2022, a supplementary affidavit has been filed seeking permission to strike out the pleadings contained in paragraph 2 of the petition. The prayer is allowed and necessary correction be made., Certain public interest litigations have also been filed raising grievances relating to this incident, which are now tagged with the suo motu petition. Learned counsel for the parties in those petitions have been heard. Learned counsel appearing for the petitioner in the connected Writ Petition (Civil) 124 of 2022 submitted that there are two witnesses to the incident; one of them has died and the other witness is a minor who requires protection. He further submitted that the forensic team from the Centre for Forensic Science Laboratory, Delhi should be called to collect evidence for forensic examination, as there is serious doubt about the fairness of the investigation., He also submitted that one Mr. Gyanbant Singh, a member of the Special Investigation Team, was previously alleged in the murder of Rizwanur Rahaman in 2007 and was kept out of work until 2014. The other member of the SIT, Mr. Sanjay Singh, Additional Director General, Western Zone, was removed by the Election Commission of India in 2021 for interfering in the election process. It has been submitted that Mr. Gyanbant Singh has been repeatedly included in the SIT, including in the murder case of Anish Khan, and his inclusion appears to serve a purpose. A submission has been made to issue a direction to preserve the evidence as well as to quarantine the places of occurrence so that evidence is not destroyed until the Central Bureau of Investigation or any independent investigating agency is appointed., In Writ Petition (Civil) 125 of 2022, the argument advanced is that eyewitnesses are being threatened and all residents of the village, especially the male persons, have been forced to leave, therefore security must be provided to the villagers. In Writ Petition (Civil) 126 of 2022, learned counsel for the petitioner argued that now no one remains in the village; confidence‑building steps must be taken and that high officials such as the Director General of Police, without any investigation, are stating that there is no political angle in the incident, which is not correct. Similar arguments have been advanced in Writ Petition (Civil) 129 of 2022., In the above background, a prayer has been made in the petitions that the investigation should be transferred to the Central Bureau of Investigation or any other independent investigating agency. Responding to the submission, the learned Advocate General stated that the investigation is in progress and there is no objection if appropriate directions are issued for protecting the crime scene, witnesses, or taking confidence‑building steps in the village. He also submitted that the forensic team of the State Forensic Laboratory has collected evidence and is in the process of further collecting material from the spot for forensic examination., Relying upon the judgment in the matter of State of West Bengal and others v. Sampat Lal and others reported in 1985 (1) SCC 317, the learned Advocate General submitted that unless the State is given an opportunity to produce the investigation report and unless the Supreme Court of India is satisfied on perusal thereof that the investigation has not been carried out properly, there is no need to transfer the investigation to any other agency. Before reaching any conclusion about alleged deficiencies, it is deemed proper that the case diary/report relating to the ongoing investigation be produced before the Supreme Court of India., The learned Additional Solicitor General submitted that the Central Bureau of Investigation has no objection to investigate and the Centre for Forensic Science Laboratory, Delhi has no objection to collect and conduct forensic testing of evidence. Having regard to the nature of the incident and its impact on society, and considering the serious doubt expressed by the petitioners about the fairness of the investigation by the Special Investigation Team, we issue the following directions at this stage: (i) The State will immediately install CCTV cameras with Digital Video Recorders having sufficient memory in the presence of the District Judge, Purba Bardhaman, covering the places of occurrence from all angles and will do continuous recording until further order of the Supreme Court of India; (ii) The team from the Centre for Forensic Science Laboratory, Delhi is directed to visit the places of occurrence and collect the necessary material for forensic examination without any delay in the presence of the District Judge of Purba Bardhaman; (iii) The Director General and Inspector General of Police, in consultation with the District Judge, Purba Bardhaman, will ensure that witnesses are adequately protected and not threatened or influenced by anyone; (iv) On instruction, the learned Advocate General has informed that post‑mortems of the dead bodies have already been done. If any post‑mortem remains, then videography of the same will be done and the report filed before the Supreme Court of India will disclose whether videography of all post‑mortems has been done; (v) State authorities will take all possible confidence‑building measures in the village concerned and nearby areas so that the villagers return to their houses; (vi) The learned Advocate General is directed to produce the case diary/report of investigation before the Supreme Court of India by tomorrow at 2 p.m.
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18 September 2020\n\nShephali (All matters to be renumbered subsequently) Rajeev Kumar Hindu Undivided Family and Anr Petitioners versus Anugrah Stock and Brokers Private Limited Respondent; Satish Chugh Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Urmil Chugh Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Sumit Chugh Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Nandlal B Sahjwani Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Nandkishore Hindu Undivided Family Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Nandlal H Chawla Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Fortune Financial and Equity Services Private Limited Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Jalpa N Shah Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Arvind Sonde Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Chitra Sonde Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Nimish Shah Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Karuna Gupta Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Vinzillion Edibles Private Limited Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Kanhaj Porecha Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Hussain Abbas Patel Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Jayshree Rajesh Sampat Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Tasneem Abbas Patel Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Dilip Kapadia and Sons Hindu Undivided Family Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Heena Dilip Kapadia Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Ammar Abbas Patel Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Sejal Ganpatraj Jain Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; VSS Metals Private Limited Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Payal Rachit Lunkad Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Sarladevi Ganpatraj Jain Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Manisha Saraf Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Ganpatraj Ghevarchand Jain Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Ganpatraj Ghevarchand Jain Hindu Undivided Family Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Rachit Jayantilal Lunkad Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Dhiren Gopal Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Dharmesh V Mangwani Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Featherlite Products Private Limited Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Jawahar Gopal Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Manohar Gopal Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Abbas Abdulali Patel Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Gautam Kothari Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Mansi Bhabin Kothari Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Alpine Investments Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Asha Agrawal Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Naresh P Shah Hindu Undivided Family Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Naresh P Shah Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Raj Agrawal Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Varun G Modi Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Receding Water Resort Limited Liability Partnership Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Asha Ranjit Shivdasani Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Ashish Ranjit Shivdasani Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Ranjit Rewachand Shivdasani Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Rajat Kukar Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Shelina Kukar Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Rehan Kukar Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Vanita De Noronha Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Luke De Noronha Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Pushpa Ram Manghnani Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Sunita Khilnany Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Inder S Khinany Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Amit Sethi Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Smita Amritlal Naik Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Kamal R Bulchandani and Others Petitioners versus Anugrah Stock and Brokers Private Limited Respondent; Sonak Shah and Anr Petitioners versus Anugrah Stock and Brokers Private Limited Respondent; Jayesh Mahendra Jhaveri and Anr Petitioners versus Anugrah Stock and Brokers Private Limited Respondent; Chetna Jayantilal Jhaveri Petitioner versus Anugrah Stock and Brokers Private Limited Respondent; Mukeshkumar Gokulbhai Mathukiya Hindu Undivided Family Petitioner versus Anugrah Stock and Brokers Private Limited Respondent., Dr B Saraf, Senior Advocate, with R Hegde, Rohin Shah, Svadha Shankar, S Bhogle, M Chunduru, Ashish Venugopal, and Yash Bajaj, on behalf of the Petitioners in LD VC-C A RBP Nos. 30/2020 to 42/2020, (L) Nos. 260/2020, 2618/2020, 2619/2020, 2634/2020, 2636/2020, 2638/2020, to Mr Aditya Mehta, with Namitha Mathews and Poorva Pant, on behalf of the Petitioners in C ARBPL Nos. 2989/2020; to Mr Kamal Bulchandani, with Avik Sarkar and Amit Nikam, on behalf of the Petitioners in C ARBP – E‑filing No. 2240/2020; to Mr Kamal Bulchandani, with Avik Sarkar and Amit Nikam, on behalf of the Petitioners in C ARBP – E‑filing Nos.; to Mr Rushin Kapadia, with Rinku Valanju and Pratham Masurekar, on behalf of the Petitioner in C ARBPL/3238/2020; to Mr Rohaan Cama, with Dhruva Gandhy and Priyanka Dubey, on behalf of Respondent No. 1 – Anugrah; to Mr Ativ Patel, on behalf of Respondent No. 2 Teji‑Mandi in C ARBP – E‑filing Nos. 2360/2020, 2414/2020 and 2415/2020; and Mr D N Kher, Court Receiver, present through video conference., Heard through video conferencing on 18 September 2020. The four petitions filed by Rakshit Jain (Unique Client Code TM 777), Resolute Advisors Limited Liability Partnership (Unique Client Code TM 1954), Shail Bajpai (Unique Client Code TM 1677), and Rajeev Surya Bajpai (Unique Client Code TM 1809) are allowed to be mentioned, subject to numbering. They are not on board. I have before me a large group of virtually identical matters from Serial Nos. 13 to 78, the list growing daily. Mr Cama appears for Anugrah Stock and Brokers Private Limited (Anugrah), a Trading Member on the National Stock Exchange. Anugrah is the sole Respondent in some cases and the first Respondent in four or five cases; where it is the first Respondent, the second Respondent is Teji‑Mandi Analytics Private Limited (Teji‑Mandi), a sub‑broker., All these petitions are under Section 9 of the Arbitration and Conciliation Act, 1996 invoking an arbitration provision mandated by the Rules of the National Stock Exchange. The Petitioners claim that Anugrah caused them extensive financial loss through illegal and unauthorised trades. The allegations are that Anugrah promised very high returns, attracted investors, took large sums, and carried out unauthorised transactions resulting in significant losses. In most cases the transactions were executed on the NSE, either in the securities or the Futures & Options segment, by Teji‑Mandi acting as Anugrah’s sub‑broker., The loss claimed by the Petitioners, though difficult to compute precisely, appears prima facie to be in the very high double‑digit crores and possibly in the hundreds of crores. In the case of Vanita De Noronha, the securities statement of nearly Rs 68 lakhs (after a haircut) on 3 August 2020 was shown a few days later to have fallen to Rs 16,488. The intervening factor was an email from Ms De Noronha to Anugrah instructing that her Power of Attorney not be used and that all her securities be moved from the margin or pool account to her own depository participant account immediately. Similar patterns are observed in other cases, including a claim of over Rs 19 crores in the case of Nimish Shah., The Affidavit in Reply filed by Anugrah discloses fixed assets comprising an office in Ahmedabad, two flats at Nisarg Apartments in Mumbai, and two offices at Lotus Corporate Park, Mumbai, valued at approximately Rs 32 crores. Motor vehicle assets include two BMWs (one a sports model purchased for over Rs 1.13 crores, the other bought for over Rs 91 lakhs) and a Mercedes‑Benz costing more than Rs 61 lakhs, together with a Honda City and a Swift. Other assets listed are air conditioners, computers and printers; computer systems at Nisarg Apartments were reportedly acquired in 2016 for nearly Rs 2.30 crores, and furniture and fixtures at Lotus Corporate Park are valued at over Rs 50 lakhs., Financial securities held by Anugrah are described as almost worthless: seven scrips are enumerated, four of which are delisted; one holding of 48,000 shares trades at Rs 9.15 per share, another of 168 shares at Rs 4.90 per share, and a third holding of 48,000 shares at Rs 0.56 per share. The Affidavit also lists a large number of bank accounts, most with nominal balances. Notably, a Yes Bank account held Rs 1.20 crores in August, an HDFC account held roughly Rs 79 lakhs, and major holdings are in an IndusInd Bank account and two Bank of India accounts. One Bank of India account fell from Rs 9.99 crores to Rs 4.98 crores between April 2019 and September 2020., Procedural directions: leave to amend all petitions as necessary with consequential amendments; re‑verification dispensed with. Copies of the amended petitions are to be served on Mr Cama and re‑filed in the High Court of Judicature at Bombay on or before 25 September 2020. Leave to all Petitioners to file further Affidavits if required. Dr Saraf’s attorneys will nominate a single‑point contact to coordinate matters and provide a tabulated statement of all claims. All Petitioners are directed to join Teji‑Mandi as Respondent No. 2 where not already joined. Leave to Mr Bulchandani to replace Exhibit D in one petition. The director of Teji‑Mandi, who has affirmed the Affidavit on its behalf, is directed not to leave the country without prior permission of the High Court of Judicature at Bombay, after at least four clear working days’ notice to the Petitioners’ advocates. The Court Receiver will take symbolic possession of all assets noted in the Affidavit in Reply, with the directors permitted to use the flats, offices and motor cars but no transactions to be undertaken. For the property in Ahmedabad, a Private Receiver will be appointed. The order will be digitally signed by the Private Secretary of the High Court of Judicature at Bombay and served by fax or email.
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Vasundhara, daughter of Praful Bhojane, Union of India through Directorate General of Health Services, Ministry of Health and Family Welfare, New Delhi and others. Office notes, office memoranda of Supreme Court of India or judge's order coram, appearances, Supreme Court of India orders or directions and registrar's order. Shri Ashwin Deshpande, Advocate for the petitioner. Shri Ulhas Aurangabadkar, Assistant Solicitor General of India for respondents 1 and 2. Shri P. S. Chawhan, Advocate for respondent 3. Shri Sumant Y. Deopujari, Government Pleader for respondents 4 and 5. Hearing was conducted through video conferencing and the learned counsel agreed that the audio and video quality was proper. The petitioner is a student who had appeared for the National Eligibility cum Entrance Test (NEET) Undergraduate 2020 examination. As per the Information Bulletin published by the National Testing Agency, respondent 3, the Optical Mark Recognition (OMR) sheet was uploaded on its website to give candidates an opportunity to make a representation in accordance with Clause 15.4 of the Information Bulletin. In paragraph 7 of the writ petition, it is pleaded that such OMR sheet was not uploaded, resulting in the petitioner not having an opportunity to challenge the OMR gradation of her attempt. The results of the NEET Undergraduate 2020 examination were declared on 16 October 2020 and the petitioner is stated to have scored zero marks out of seven hundred twenty. The petitioner further states that at 11.28 p.m. on 16 October 2020 she made a representation to respondent 3 and to date there has been no response. Such representation is permissible under Clause 15.4 of the Information Bulletin. According to the petitioner, having scored 81.85 percent marks in the Higher Secondary Certificate examination, she was expecting a score of about six hundred marks. She alleges that due to a technical discrepancy zero marks were awarded to her. Under Clause 15.4 of the Information Bulletin there is no provision for re‑checking or re‑valuation of answer sheets; the only opportunity is to make a representation on the OMR gradation of the candidate’s OMR sheet. In the present case such representation was made after the declaration of results. We are conscious of the scope available for interference in matters of this nature. The law in this regard is laid down in Ran Vijay Singh and others versus State of Uttar Pradesh and others (2018) 2 SCC 357, especially paragraph 30 thereof. Prima facie, considering that the petitioner has been awarded zero marks, a response from the respondents is called for. Issue notice for final disposal of the writ petition, returnable on 26 October 2020. Shri Ulhas Aurangabadkar, learned Assistant Solicitor General of India, waives notice for respondents 1 and 2; Shri P. S. Chawhan, learned counsel, waives notice for respondent 3; and Shri Sumant Y. Deopujari, learned Government Pleader, waives notice for respondents 4 and 5. Leave to move before the returnable date in case the process of admission commences.
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M/s Renaissance Infrastructure through its Partners and Others Appellants/Applicants versus Shri Parth B. Suchak and Another Respondents. Mr. Prasad S. Dani, Senior Advocate in behalf of the Appellants/Applicants. Mr. Sachin Pawar for the Appellants/Applicants. Mr. Rubin Vakil and Mr. Prashant Ghelani, Mr. Ankul Kalal and Mr. Vinay Shingada in behalf of Markand Gandhi & Co. for Respondent No.1. (Oral Judgment). Heard learned counsel for the parties., This second appeal is from dismissal of an appeal preferred under Section 44 of the Real Estate Regulation and Development Act for non‑compliance with a pre‑deposit order passed by the Real Estate Regulatory Authority Appellate Tribunal. Respondent No.1 was the original complainant before the adjudicating officer of the Real Estate Regulatory Authority, whereas the Appellant was the respondent‑promoter in the complaint and had challenged the order of the adjudicating officer before the Appellate Tribunal., It was the case of the complainant that he had purchased six plots of land together with a pre‑engineered steel portal framed rectangular building, termed as warehousing building, from the respondent promoter under an agreement for sale dated 10 December 2009. Possession of the suit premises was to be handed over to the complainant‑allottee on or before 9 March 2010. Since possession was not so handed over, as per Condition No.4 of the agreement, the promoter was liable to compensate the complainant for loss of rent, which was agreed at the rate of Rs.10 per square foot per month. This compensation, according to the complainant, worked out to Rs.5.04 crore, calculated up to 30 June 2018, that is after the grace period of six months of the agreed date of possession and till the time of filing of the complaint (approximately 80 months)., The adjudicating officer, by his order dated 20 March 2019, ordered the Appellant to pay compensation to the complainant‑allottee from 9 September 2010 until handing over possession of the warehousing building at the rate of Rs.6,30,000 per month, in addition to the direction for handing over possession of the plots with the warehousing building and execution of conveyance in favour of the applicants. This order was carried before the Appellate Tribunal, which, by its orders dated 9 January 2020 and 24 January 2020, after considering the application of the Appellant‑promoter for waiver of pre‑deposit, as per the proviso to sub‑section (5) of Section 43 of the Real Estate Regulation and Development Act, ordered the Appellant to deposit fifty percent of the amount computed as per the impugned order before the Appellate Tribunal as a condition for entertaining the appeal. Since this amount was not deposited by the Appellant, the appeal was dismissed by the Appellate Tribunal by its final order dated 20 March 2020. These three orders are the subject matter of challenge in the present second appeal., Mr. Dani, learned Senior Counsel appearing for the Appellant, submits that the Appellant was not liable to make any pre‑deposit under the proviso to Section 43(5) of the Act. He urges three grounds. Firstly, the Appellant is not a promoter, since the agreement between the parties was not an agreement for sale but an agreement in lieu of the Respondent’s share in the partnership of the Appellant. It is submitted that Respondent No.1 was an erstwhile partner in the Appellant firm and upon his retirement, the agreement of 10 December 2009 was executed in lieu of his share in the partnership. Secondly, the original claim of the Respondent was premature and devoid of merit. Thirdly, the order is in the nature of liquidated damages and the adjudicating officer had no jurisdiction to order such damages., None of the grounds urged by Mr. Dani bear on the liability of the Appellant to make a pre‑deposit under the proviso of sub‑section (5) of Section 43 of the Act. The Appellant has been developing plots of land and entered into an agreement for allotment and sale of six plots within the project, together with a constructed building, to Respondent No.1. Under this agreement, termed as agreement for sale, the Appellant was bound to hand over possession of the suit premises to the Respondent within an agreed period and execute a conveyance in respect of the same. Prima facie this agreement is an agreement for sale between a promoter and an allottee. It may be that the allottee was an erstwhile partner of the promoter firm and the agreement was executed to satisfy the allottee’s claim towards his share in the partnership upon his retirement. That does not, however, make the agreement any less an agreement for sale. Consideration of an agreement for sale may be any valuable consideration, including satisfaction of the allottee’s share in the promoter’s partnership. It is nevertheless an instance of allotment and sale of constructed premises with land, its consideration being satisfaction of the allottee’s claim in the business and assets of the promoter partnership. The project is a real estate project; it is being developed by the Appellant as a promoter; and the Respondent is an allottee, to whom plots of land together with a building have been allotted and agreed to be sold (free‑hold or leasehold) or otherwise transferred by the promoter. Prima facie all ingredients of promotership of the Appellant are satisfied and there is no reason why its appeal before the Appellate Tribunal should not be treated as an appeal filed by a promoter., The two other grounds urged by Mr. Dani also do not support his case against pre‑deposit under the proviso to sub‑section (5) of Section 43 of the Act. Whether the original complaint before the adjudicating officer was premature and whether damages/compensation awarded by the adjudicating officer were within his jurisdiction are matters of merit in the appeal. These matters, even if they go to the root of the order impugned in the appeal, do not call for dispensation of pre‑deposit under the proviso to sub‑section (5) of Section 43, which is mandatory., There is, in the premises, no infirmity in the impugned orders passed by the Appellate Tribunal. The orders do not give rise to any substantial question of law for the consideration of the High Court of Judicature. The second appeal is, accordingly, dismissed., In view of the dismissal of the second appeal, the interim application does not survive and is disposed of., The Appellant is given four weeks time to pay the amount ordered by the adjudicating authority, Real Estate Regulatory Authority. Though the attachment shall continue during this period of four weeks, no sale of attached property shall be conducted by the Tehsildar in execution., Mr. Dani applies for stay of the impugned order. Since the Appellant is given four weeks time to pay, with directions to the executing authority not to go ahead with the sale for this period, no separate order of stay is necessary., If the amount is not paid within four weeks, the Tehsildar may proceed with the sale of the attached property., This order will be digitally signed by the Personal Assistant of the High Court of Judicature. All concerned will act on production by fax or email of a digitally signed copy of this order.
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W.P. No. 2530 of 2023\n\nJayaraman T.M., Petitioner\n\nVersus\n\n1. The National Commission for Scheduled Castes, 5th Floor, Lok Nayak Bhawan, Khan Market, New Delhi‑110 003.\n2. The Commissioner, Hindu Religious and Charitable Endowments, 119, Uthamar Gandhi Salai, Nungambakkam, Chennai‑600 034.\n3. K. Sinivasan\n4. The Executive Officer/Thakkar, Arulmigu Sakkiyamman Tirukkovil, Thasirippalli, Krishnagiri District‑685 001 (Respondent No.4 impleaded as per the order dated 1 March 2023 made in W.M.P. No. 6296 of 2023)., Petition filed under Article 226 of the Constitution of India seeking issuance of a writ of certiorari calling for the records of the impugned order dated 18 October 2022 passed by the first respondent National Commission for Scheduled Castes in File No. 14/21/T.N/2022‑ESDW and quashing the same., For the Petitioner: Mr. Naveen Kumar Murthi appearing for Mr. G. V. Mohan Kumar and Mr. C. Palanisamy.\n\nFor the Respondents: Mr. G. Ilangovan for Respondent No.1; Mr. P. Muthukumar, State Government Pleader for Respondent No.2; Mr. Srinath Sridevan, Senior Counsel for Respondent No.3; Mr. N. R. R. Arun Natarajan for Respondent No.4. (Order of the court was made by the Hon'ble Acting Chief Justice)., Jayaram T.K., son of Munusamy, a resident of V. Madepalli Village, Krishnagiri District, has filed this writ petition under Article 226 of the Constitution of India assailing the order dated 18 October 2022 passed in File No. 14/21/T.N/2022‑ESDW by the National Commission for Scheduled Castes, New Delhi, injuncting the Hindu Religious and Charitable Endowments Department from taking any further action in respect of the land belonging to Arulmigu Sakiyamman Temple in any circumstance without the knowledge of the Commission. The Commission further directed the officials present before it to maintain the status quo in the matter., Mr. Naveen Kumar Murthi, learned counsel appearing on behalf of the petitioner, submits that Arulmigu Sakiyamman Temple, situated in Madepalli Village, Krishnagiri District, is common to several worshippers of the Hindu religion across all communities, including the Scheduled Caste community. The petitioner also belongs to the Scheduled Caste community and is a devotee of the temple and therefore has locus standi to file this writ petition., Learned counsel further submits that the third respondent, K. Srinivasan, encroached the lands belonging to the temple situated at Survey Nos. 85 and 85‑150/B, 85‑169/3 in Madepalli Village, Krishnagiri District, measuring an extent of 3.75 acres. The officials of the Hindu Religious and Charitable Endowments Department initiated action against the third respondent and ten other persons by issuing a notice under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, calling upon them to show cause as to why action should not be taken for removal of the encroachments from the lands belonging to the temple., The third respondent, being fully aware that he has no legal or civil right over the lands belonging to the temple, filed a complaint addressed to Dr. Anju Bala, Member of the Commission, in contravention of Rule 7.4.1(a) of the Rules of Procedure of the National Commission for Scheduled Castes, which mandates that the complaint should be directly addressed to the Chairman, Vice‑Chairman, Secretary of the Commission or the heads of its State Offices. The complaint was received by Dr. Anju Bala, who on 10 August 2022 called for a report within seven days. According to the petitioner, the complaint addressed to the Member of the Commission ought not to have been entertained at all., Taking support from Article 338(8) of the Constitution of India, learned counsel for the petitioner submits that although the Commission has power to investigate any matter referred to it in sub‑clause (a) or inquire into any complaint referred to in sub‑clause (b) of clause (5) and enjoys the powers of a civil court trying a suit for the purposes of (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any documents; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing commissions for the examination of witnesses and documents; (f) any other matter which the President may, by rule, determine, the Commission is not empowered to pass an order of injunction injuncting any authority to inquire into the matter covered by a specific statute such as the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Accordingly, the show‑cause notice issued to the third respondent and ten other encroachers does not warrant interference., The petitioner refutes the averment contained in paragraph (2) of the complaint filed by the third respondent before the Commission that the third respondent alone was targeted and harassed because he belongs to the Scheduled Caste community. The eviction notice dated 8 August 2022 was issued to eleven persons, including the third respondent, and therefore the third respondent cannot raise the plea of discrimination on the ground of community., Taking support from the judgment of the Supreme Court in All India Indian Overseas Bank SC and ST Employees' Welfare Association and others v. Union of India and others, (1996) 6 SCC 606, learned counsel for the petitioner submits that when a similar issue as to whether the Commission is empowered to pass an order of injunction was raised, the Supreme Court, after examining the language employed in Article 338(8) of the Constitution of India, held that the Commission, having not been specifically granted any power to grant an order of interim injunction, lacks any authority to pass an order of interim injunction. The Court observed that the powers of a civil court of granting injunctions, temporary or permanent, do not inhere in the Commission nor can such a power be inferred or derived from Article 338(8)., The petitioner submits that when the land in question is situated in Madepalli Village, Krishnagiri District and the third respondent disputes the claim of encroachment, it is not known why the third respondent chose to lodge a complaint from Bangalore. This only shows that the third respondent does not belong to Madepalli Village, Krishnagiri District, an aspect that has not been considered by the Commission., Based on the foregoing arguments, the petitioner prays for setting aside the impugned order dated 18 October 2022 passed by the Commission and for a consequential direction to the Hindu Religious and Charitable Endowments Department to pursue the matter to the logical end so that a proper inquiry can be held and the grievance of the petitioner can be properly addressed by the authorities., Mr. Srinath Sridevan, learned Senior Counsel appearing on behalf of the third respondent, urges the Madras High Court to dismiss the writ petition on the premise that the petitioner has no locus to approach this court against the impugned order dated 18 October 2022 passed by the Commission. He contends that when the pleadings are complete before the Commission, and the Hindu Religious and Charitable Endowments Department has filed its counter on receipt of the summons, the Commission should be allowed to adjudicate upon the complaint and arrive at a conclusion. He further alleges that the petitioner has an axe to grind against the third respondent and has filed this writ petition to wreak vengeance, and therefore lacks locus standi., Learned Senior Counsel for the third respondent submits that the third respondent has made a specific case before the Commission that he and his predecessors have been in possession and enjoyment of the lands in question for over two hundred years, but he was denied electricity service connection without any reason, possibly on the ground of his Scheduled Caste status. The Commission has rightly passed the order dated 18 October 2022 exercising its inherent power under New Rule 7.2(a)(vii) of the Rules, notified on 25 March 2009, after the Supreme Court judgment in the All India Indian Overseas Bank case. Accordingly, the Supreme Court decision has no relevance because the new rule empowers the Commission to pass an interim order, and the impugned order is valid in law; therefore, the writ petition ought not to be entertained., The Senior Counsel also states that when it is the specific case of the third respondent that he has not encroached the temple lands, it is for the Commission to render a finding whether the third respondent is wrongly in possession of the land belonging to the temple or whether the land does not belong to the temple., Continuing his arguments, Mr. Srinath Sridevan submits that this is a simple case of harassment meted out to the third respondent by the officials of the Hindu Religious and Charitable Endowments Department wrongly exercising power under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 only against the third respondent. When the third respondent claims that the land belongs to him and not to the temple, it is for the temple to substantiate its case and disprove the averment made before the Commission. Since the Commission is seized of the matter, which is ripe for hearing, there is no need for this court to waste its time. Even if the petitioner is aggrieved, he may approach the Commission seeking redressal and cannot file a writ petition. Therefore, the petitioner should be dismissed., Mr. P. Muthukumar, learned State Government Pleader appearing on behalf of the second respondent, and Mr. N. R. R. Arun Natarajan, learned Special Government Pleader appearing on behalf of the fourth respondent, submit that this is a clear case of gross misuse of the process of law by the third respondent. The writ petition questioning the validity of the order passed by the Commission, which runs contrary to the mandate of Article 338(8) of the Constitution, should be entertained. They further state that the Settlement Tahsildar has passed proceedings holding that the land in question belongs to the temple. Based on that order, the Executive Officer of the temple issued notice to eleven encroachers, including the petitioner, under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Instead of giving a brief reply with supporting documents, the third respondent wrongly invoked the jurisdiction of the Commission. The land belongs to the temple, and the notice issued to eleven encroachers does not make the third respondent a singled‑out victim on communal grounds. The third respondent has not produced any material to prove that the land belongs to him., Concluding their arguments, it is submitted that the fact that the Rules of Procedure of the National Commission for Scheduled Castes were notified on 15 March 2009 does not affect the interpretation of Article 338(8) by the Supreme Court in the All India Indian Overseas Bank case, which makes clear that although the Commission enjoys the powers of a civil court, it does not have power to grant injunctions, temporary or permanent. The Apex Court decision is binding under Article 141 of the Constitution of India. In the present case, the interim order challenged by the petitioner clearly shows that the Hindu Religious and Charitable Endowments Department and the Executive Officer of the temple have been injuncted by the Commission from taking any action in respect of the lands in question, which is contrary to the command of Article 338(8). Therefore, the writ petition deserves to be allowed., After hearing learned counsel on either side, the Madras High Court finds merit in the submissions made by learned counsel for the petitioner and learned counsel for the respondent authorities., Since eleven persons have encroached the land belonging to Arulmigu Sakiyamman Temple situated in Madepalli Village, Krishnagiri District, eviction notices were issued to all eleven persons, including the third respondent, Mr. K. Sinivasan, under Section 78 of the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959, calling upon them to show cause why action should not be taken for removal of the encroachments. Peculiarly, the third respondent alone straightaway filed a complaint addressed to Dr. Anju Bala, Member of the Commission, in contravention of Rule 7.4.1(a) of the Rules of Procedure of the National Commission for Scheduled Castes, which mandates that the complaint should be directly addressed to the Chairman, Vice‑Chairman or Secretary of the Commission. The complaint was received by Dr. Anju Bala, who on 10 August 2022 called for a report within seven days. Overlooking the procedures, the Commission passed the order dated 18 October 2022 exercising its inherent power under Rule 7.2(a)(vii) of the Rules notified on 25 March 2009, which is after the Supreme Court judgment in All India Indian Overseas Bank case, wherein the Apex Court held that the Commission, having not been specifically granted any power to issue interim injunctions, does not have authority to pass an order of interim injunction. The Apex Court while interpreting Article 338(8) made it clear that the Commission, although enjoys the powers of a civil court, does not have the power to grant injunctions either temporary or permanent. Therefore, there is infirmity in the order passed by the Commission., The limited question raised in the writ petition is whether the Commission has the power to issue a direction in the nature of an interim injunction. This question has been answered by the Supreme Court in the All India Indian Overseas Bank case. Accordingly, the Commission lacks jurisdiction to pass the interim injunction dated 18 October 2022. The order is set aside. The third respondent is directed to pay costs of Rs 2,000 to the fourth respondent within two weeks from the date of receipt of a copy of this order for misusing the legal process. No order as to costs is otherwise made. Consequently, W.M.P. Nos. 2623, 2624 and 4467 of 2023 are closed.
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Kisan Vitthal Kadam and Anr. Petitioners; The State of Maharashtra and Anr. Respondents. Mr. Ranjit Shinde as well as Mr. Ketan Shinde for the Petitioners. Mr. R. S. Pawar, Additional Government Pleader for the Respondents No.1 and No.2, State. Heard the learned counsel for the Petitioners., This petition reflects the sorry state of affairs. The petitioner, a project‑affected person, has a grievance of non‑allocation of alternate land and non‑responsive approach of the authorities. He approached the learned Lokayukta by submitting Complaint No. LA/COM/618/2017 (T‑1). The learned Lokayukta heard the complaint. The complainant was present in person before the Lokayukta. The respondent government officials, namely the District Rehabilitation Officer/District Collector, Sangli and the Assistant Conservator of Forests, Sangli, were also present. Certain documents in the form of a report were submitted. By order dated 25 October 2017, recording the grievance of the petitioner and similarly situated persons and after hearing the respondents, a detailed order was passed prescribing the time frame for the proposed action to be initiated by the respondent authorities., Clause (i) to (viii) of paragraph 5 are directions specifying the time frame. For ready reference we quote them: (i) The Deputy Conservator of Forests, Sangli shall make a necessary request to the Project Officer, Office of the Chief Conservator of Forests (Wildlife), Kolhapur for issuance of a project note within 15 days of receipt of the present recommendations. (ii) The Project Officer, Office of the Chief Conservator of Forests (Wildlife), Kolhapur shall issue the project note within 15 days from the date of receipt of the request from the Deputy Conservator of Forests, Sangli. (iii) The Deputy Conservator of Forests, Sangli shall request the Collector of Sangli to issue an FRA Certificate within 15 days from the date of receipt of the project note. (iv) The Collector shall issue the FRA Certificate, if permissible for the land in question, within 15 days of receipt of the request from the Deputy Conservator of Forests, Sangli. (v) The Deputy Conservator of Forests, Sangli shall submit an online proposal to the Chief Conservator of Forests (Territorial), Kolhapur in respect of land at Ghat No. 227 within 15 days of receipt of the FRA Certificate, and may include Ghat No. 228 in the same proposal. (vi) The Chief Conservator of Forests (Territorial), Kolhapur shall forward the proposal to the Additional Principal Chief Conservator of Forests and Nodal Officer, Maharashtra State, Nagpur within 15 days of receipt of the online proposal. (vii) The Additional Principal Chief Conservator of Forests and Nodal Officer, Maharashtra State, Nagpur shall forward the proposal to the concerned authorities in the Central Government within 15 days of receipt and shall pursue early clearance so that the land requiring deforestation is cleared within a reasonable time. (viii) As soon as clearance is received from the Central Government, all necessary steps shall be taken by the Forest Department and the Revenue Department for allotment of land to the fourteen families at eighty acres per family. This work shall be completed within four months from the date of receipt of clearance., In paragraph 6 of the order, the learned Lokayukta ensured that the directions and time frames were duly communicated to the respondent authorities. In paragraph 7 the Lokayukta directed that one copy each of the recommendations be forwarded to the Principal Secretary (Revenue) and the Secretary (Forests), Revenue and Forests Department, Mantralaya, Mumbai. Compliance was expected in paragraph 8 and a due intimation under Section 12(2) of the Act was observed in concluding paragraph 9. A copy of the order is placed on record as Exhibit C at page 43 of the petition., It appears that on 26 November 2018 a report was submitted to the office of the Lokayukta. The learned Lokayukta found that the Forest Department had initiated necessary steps by passing an order on that date. The complaint was closed. The report, recorded as Exhibit D at page 48, states: (1) Shri U. S. Patil, Assistant Conservator of Forests, Sangli. Report of Deputy Conservator of Forests, Sangli submitted by Assistant Conservator of Forests shall be taken on record and be exhibited as Exhibit D. The report indicates that necessary steps are being taken in accordance with the recommendations of the Authority and therefore shall be treated as an intimation under Section 12(2) of the Act and the complaint be closed., The petitioners reasonably expected that not only the Forest Department but all concerned respondent authorities would implement the Lokayukta’s order within the stipulated time frame. After three years from the last order dated 26 November 2018 there was no progress. Consequently the petitioners issued a legal notice to the respondent state authorities. A copy of the notice dated 15 January 2021 is placed on record as Exhibit D at page 49. As there was no further response, the petitioners approached this High Court of Bombay by filing the present writ petition., The documents placed on record show that in response to the legal notice, a reply was forwarded to the learned counsel on 4 March 2021. A copy is placed on record as Exhibit E at page 57. The reply referred to certain procedural formalities and claimed substantial compliance with the Lokayukta’s order. The communication, dated 2021, was surprising. The Department of Forests, through the Deputy Conservator of Forests, asserted that there was no delay, and if any delay existed it did not result in monetary loss or mental or physical stress to the petitioners. The communication further cautioned the petitioners that, as their demand was satisfied, they should not take any action against the department, and that any action taken would be at their own risk and they would face necessary consequences. Such a warning to a citizen for raising a grievance is unexpected from a state department. Subsequent communications merely reflected that the matter was being transferred from one authority to another without any concrete outcome of the Lokayukta’s directions., The learned Additional Government Pleader, at this stage, prayed for time to submit a proper and comprehensive reply to the petition., At the request of the learned Additional Government Pleader, two weeks’ time was granted to file the reply. The affidavit in reply proposed to be filed by the State Government is expected to reflect a positive outcome. If it does not show any concrete or positive result and the petitioners and other citizens are left to their own fate, this High Court of Bombay will be constrained to call upon the Secretary of the Forest Department and the Revenue Department to submit personal explanations before this Court., The matter is stood over to 30 June 2022. An authenticated copy shall be supplied to the learned Additional Government Pleader, who will communicate the order to the competent authority accordingly.
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Ba 2927.22 Diksha Rane Senior Counsel Mr. Vikram Chaudhari as well as Adv. Aniket Nikam, Adv. Inderpal Singh, Adv. Hargun Sandhu, Adv. Devyani Chemburkar, Adv. Arveen Sekhon for the applicant. Mr. Anil Singh, Additional Solicitor General as well as Mr. Ashish Chavan, Mr. Aditya Thakkar, Ms. Smita Thakur, Mr. Zishan Quazi, Mr. Manuj Borkar for the respondent No.1 Central Bureau of Investigation. Ms. A. A. Takalkar, Assistant Public Prosecutor for State. Heard learned senior counsel for the applicant, learned Additional Solicitor General for the respondent No.1 Central Bureau of Investigation and learned Assistant Public Prosecutor for the respondent No.2 State., This is an application for grant of bail to the applicant in FIR No. RC2232021A0003 registered by the respondent No.1 Central Bureau of Investigation (hereafter the CBI) for the offences under Section 7 of the Prevention of Corruption Act, 1988 and under Section 120-B of the Indian Penal Code, 1860 (hereafter the IPC)., The applicant is 73 years of age. The CBI investigation in the instant case commenced pursuant to a preliminary enquiry which was ordered by the Division Bench of the Bombay High Court by an order dated April 5, 2022. While doing so, the Division Bench had noted that the matter is quite serious and affects the administration at large. The Special Leave Petitions preferred therefrom by the applicant and the State of Maharashtra were dismissed by the Supreme Court of India by an order dated April 8, 2021, observing that the nature of allegations, the persons involved and the seriousness of the allegations required an independent agency to enquire into the matter., Pursuant to the preliminary enquiry, the CBI registered the First Information Report on April 21, 2021. Writ Petition No. 1904/2021 preferred by the petitioner for quashing the FIR was dismissed by the Division Bench of the Bombay High Court by a detailed order dated July 22, 2021. The Special Leave Petition preferred therefrom was dismissed by the Supreme Court of India by an order dated August 18, 2021., The preliminary enquiry, prima facie, revealed that a cognizable offence was made out wherein the applicant and unknown others attempted to obtain undue advantage for improper and dishonest performance of their public duty. The applicant and others allegedly exercised undue influence over the transfers and postings of police officials and thereby also exercised undue influence over the performance of official duty by the officials. Thus, a regular case under Section 7 of the Prevention of Corruption Act, 1988 and Section 120-B of the IPC came to be registered against the applicant and unknown persons., Treating the aforesaid FIR registered by the CBI as a source from which information is received and the offence alleged therein as a predicate offence, the Enforcement Directorate registered ECIR No. MBZO/1/66/2021 for the offences punishable under Sections 4 read with 3 of the Prevention of Money Laundering Act, 2002 (hereafter PMLA). In the PMLA offence the applicant was arrested on November 2, 2021. The trial Court refused to grant bail to the applicant. The applicant preferred Bail Application No. 1021/2022 in the PMLA case in this Court. By an order dated October 4, 2022, the applicant was enlarged on bail in the PMLA case., So far as the offence registered by the CBI is concerned, for which the applicant has preferred this application, the applicant was arrested on April 6, 2022. The CBI filed its charge-sheet on June 2, 2022 with respect to the issue of corruption on the basis of collecting/extorting monies from restaurants and bar owners. According to Mr. Anil Singh, learned Additional Solicitor General appearing for the CBI, the two other facets of corruption, that is, transfers and postings within the police and influencing the investigation, are still under investigation. The cognizance has been taken by the Special Court by an order dated June 20, 2022. The default bail application of the applicant was dismissed by an order dated July 11, 2022. The Special CBI Court rejected the bail application preferred by the applicant on October 6, 2022., Learned senior advocate for the applicant submitted that as the applicant has been granted bail in the PMLA case which originates from the CBI's case and all accusations including the effect of the statements recorded under Sections 161 and 164 of the Code of Criminal Procedure, 1973 (hereafter the CrPC) have gone into mind making formation of this Court while granting bail in the said case, which order passed by this Court has been accorded imprimatur by the Supreme Court of India, the applicant deserves to be released on bail., Learned senior advocate submitted that to rely on the statement of the approver (Mr. Sachin Waze) is fraught with peril and is in the teeth of the settled law that such a person is unworthy of credit unless corroborated in material particulars., Learned Additional Solicitor General invited my attention to the order passed by the Bombay High Court granting bail in the PMLA case wherein it was clarified that the observations made are limited to the consideration of the question of grant of bail and that they shall not be construed as an expression of opinion which bears on the merits of the matter in the PMLA case as well as the prosecution for the predicate offences. Further, from the decision of the Supreme Court of India, it is pointed out that the observation in the order granting bail in the PMLA case shall not affect the merits of the trial or be pressed in any other collateral proceedings. Though learned senior advocate extensively relied upon the observations of this Court while granting bail in the PMLA case, I find force in the submission of learned Additional Solicitor General that the present application will have to be dealt with on its own merits without being influenced by the observations of this Court in the PMLA bail matter., According to learned Additional Solicitor General, the relevant statements in the charge-sheet which would bear out the involvement of the applicant in the above offences are that of Section 161 statement of Mr. Sanjay Patil (PW-24), Section 164 statement of Mr. Sachin Waze (PW-36) approver, Section 161 statement of Mr. Gajanana Katkade (PW-27), Section 161 statement of Mr. Venkatesh Bhat (PW-28), Section 161 statement of Mr. Ramesh Manale (PW-29) and Section 161 statement of Mr. Parm Bir Singh (PW-30). Learned Additional Solicitor General inviting my attention to pertinent portions of the statements submitted that the evidence would evince that the applicant has committed acts of corruption. It is submitted that by an order dated June 1, 2022, Mr. Sachin Waze has been granted pardon and has turned approver. It is submitted that Mr. Sachin Waze is now a prosecution witness and that the evidence of an approver is at par with the evidence of a prosecution witness once he is granted pardon., I completely agree with the submissions of learned Additional Solicitor General that economic offences are treated as a separate category of offences and must be viewed very seriously. The acts in the instant case are alleged to have been committed by the holder of a high public office who at the relevant time was the Home Minister of the State of Maharashtra. The allegations in the present case are undoubtedly serious., Having carefully gone through the materials on record, the prosecution mainly relies on the statement of Mr. Sachin Waze, who has now been granted pardon and has turned approver. I must bear in mind that the evidence of an approver is at par with the evidence of a prosecution witness once he is granted pardon. I must also bear in mind that it is not open for me to conduct a mini trial while considering this application for bail. The allegation is that the applicant instructed Sachin Waze to collect Rs. 3 lakhs each from 1,750 orchestra bars/pubs/establishments in Mumbai totalling Rs. 40 to Rs. 50 crores approximately. Learned Additional Solicitor General vehemently submitted that the statements of Mr. Parm Bir Singh, the Commissioner of Police, Mumbai and Mr. Sanjay Patil, Assistant Commissioner of Police, Crime Branch, corroborate the allegations made by Sachin Waze that the money was to be collected at the behest of and handed over to the applicant. For the limited purpose of considering the matter from the standpoint of an application for bail, the statement of Mr. Sanjay Patil assumes relevance, which according to the prosecution corroborates the version of Mr. Sachin Waze. It is indicated by Mr. Sanjay Patil that Mr. Sachin Waze informed him that he was collecting the money for No.1, and when Mr. Sanjay Patil asked Sachin Waze as to who is No.1, he was informed that it is the Commissioner of Police, Mumbai. The statements as they stand, even without testing their veracity, which is a subject matter of trial, create some doubt as to whose behest the money was collected. I may hasten to add that these are very prima facie observations limited to considering this application for bail., Learned Additional Solicitor General submitted that the statement of Mr. Sachin Waze was recorded under Section 164 of the CrPC and therefore, it carries great evidentiary value. He has stated that Rs. 4,70,00,000 was collected from the bar owners by Mr. Sachin Waze during the period December 2020 to February 2021 and the total money was handed over to the applicant through Mr. Kundan Shinde in two installments., As the charge-sheet stands, the prosecution case is mainly based on Sachin Waze's statement, who has been granted pardon and turned approver. The question of reliability of Mr. Sachin Waze's version is a matter for trial., It is a matter of record that Sachin Waze was suspended for 16 years. According to him, he was promised reinstatement by the applicant. Post reinstatement, the money was collected by Sachin Waze from the bar owners. Sachin Waze says that the money was delivered to Mr. Kundan Shinde as instructed by the applicant. For the limited purpose of considering the credentials of Sachin Waze, I have no hesitation in relying on the observations of this Court while granting bail to the applicant in the PMLA case. The tenure of Sachin Waze as a police officer has been controversial. He was under suspension for almost 16 years. He came to be arrested by the National Investigation Agency in C.R. No. 35/2021 for the alleged murder of a person in connection with the planting of gelatin sticks in a sport utility vehicle outside the house of an industrialist. He is allegedly involved in extortion cases, fake encounter case, etc., Except for Mr. Sachin Waze, none of the statements recorded indicate that it was under the instructions of the applicant that the money was to be collected. It is for the trial Court to look for corroboration in material particulars for relying on the statement of Sachin Waze, the approver. It has to be borne in mind that Mr. Sachin Waze was a suspect and accomplice who has been granted pardon and has turned approver. To prolong the custody of the applicant on the basis of these materials may not be sound. I am, therefore, inclined to exercise the discretion for grant of bail, this being one of the circumstances., Though I have not taken into consideration the observations made in the PMLA bail case, the circumstance that the applicant has been granted bail in the PMLA case despite the rigour of the restrictions envisaged by the main part of sub‑section (1) of Section 45 of the PMLA cannot be overlooked., The applicant is 73 years old and suffering from multiple ailments which is a factor which deserves to be taken into consideration. Apart from the medical history of the applicant which is placed on record, it would be pertinent to note paragraph 85 of the order of this Court in the PMLA bail case which records that the applicant has been suffering from multiple ailments and that few of the ailments are classified as degenerative. In all fairness to the respondents, it is not the applicant's case that he is not receiving proper medical treatment while in custody. The age and the medical history of the applicant is another circumstance which falls for consideration. The medical reports/certificates show that the applicant is suffering from chronic ailments. This Court in the PMLA case has noted that in the light of the materials on record, it would be audacious to observe that the applicant is not a sick person. I have relied upon the observations for the limited extent of examining the medical condition of the applicant and as this is one of the circumstances considered by me for enlarging the applicant on bail., The applicant has been in the custody of the CBI from April 6, 2022. Earlier he was in the custody of the Enforcement Directorate from November 2, 2021. The applicant is in custody for more than a year. The charge-sheet has already been filed by the CBI on June 2, 2022 with respect to the issue of corruption, the basis being collecting/extorting monies from restaurants and bar owners. The two other facets of corruption, that is, the transfers and postings within the police and influencing investigations, according to the CBI, are still under investigation., The applicant is no longer the Home Minister and therefore, there is no question of his influencing the investigation. The charge-sheet in respect of the two other facets as spelt out by the CBI is yet to be filed and therefore, there is no question of the trial concluding any time soon in the near future. The CBI may proceed with the investigation but not at the cost of continued incarceration of the applicant. I also have no hesitation in relying on paragraph 88 of the order granting bail to the applicant in the PMLA case wherein it is observed that the applicant appears to have roots in society and the possibility of fleeing away from justice seems remote. The apprehension on the part of the prosecution of tampering with the evidence and threatening the witnesses can be taken care of by imposing stringent conditions., I may hasten to add that since the proposition of law canvassed by learned senior advocate and learned Additional Solicitor General is well settled, I have not burdened this order with the authorities which are relied upon., It is made clear that I have not gone into question of non‑compliance of Section 41‑A of the CrPC which was argued by learned senior advocate for the applicant and the response thereon by learned Additional Solicitor General, since I am satisfied that on the grounds mentioned above, the applicant deserves to be enlarged on bail., The offence with which the applicant is charged is punishable with imprisonment up to 7 years but not with life or death. There are no criminal antecedents reported against the applicant. Having regard to the totality of the circumstances, in my opinion, the applicant can be released on bail. The application is, therefore, allowed in terms of the following order. (a) Applicant Anil Vasantrao Deshmukh be released on bail in connection with FIR No. RC2232021A0003 registered by the CBI, on furnishing a personal bond in the sum of Rs. 1,00,000 with one or more sureties in the like amount. (b) The applicant shall report to the office of the CBI on every Tuesday, between 10.00 a.m. to 12.00 noon for a period of one month from the date of his release and thereafter, the applicant shall report to the office of the CBI on every alternate Tuesday, between 10.00 a.m. and 12.00 noon, for the next three months. (c) The applicant shall remain within the area of Greater Mumbai till the trial is concluded and shall not leave the area without permission of the competent Court. (d) The applicant shall surrender his passport to the trial Court, if not already surrendered. (e) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing the facts to Court or any Police Officer. The applicant shall not tamper with evidence. (f) The applicant shall co‑operate with the expeditious disposal of the trial. (g) On being released on bail, the applicant shall furnish his contact number and residential address to the office of the CBI and shall keep them updated, in case there is any change. (h) Suffice it to observe that the observations made are for the limited purpose of considering the question of bail and shall not influence the trial Court while considering the matter on merits., The application is disposed of., After the order is pronounced, learned counsel for the CBI requested that this order be made effective after 10 days from today. This request is strongly opposed by learned counsel for the applicant. However, considering the nature of the controversy, in my opinion, it would be in the interest of justice to make the order effective after a period of ten days from today.
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Adjudication order in the matter of Viaan Industries Limited. The parties are Mr. Ripu Sudan Kundra, Ms. Shilpa Shetty Kundra and Viaan Industries Limited. The Securities and Exchange Board of India (SEBI) conducted an investigation into the trading of the securities of Viaan Industries Limited (formerly Hindustan Safety Glass Industries Limited) for the period 1 September 2013 to 23 December 2015. The investigation observed that Mr. Ripu Sudan Kundra (Noticee No. 1), Ms. Shilpa Shetty Kundra (Noticee No. 2) and Viaan Industries Limited (Noticee No. 3) allegedly violated Regulations 7(2)(a) and 7(2)(b) of the SEBI Prohibition of Insider Trading Regulations, 2015 (PIT Regulations). Consequently, adjudication proceedings were initiated against the Noticees under section 15A(b) of the Securities and Exchange Board of India Act, 1992. The three parties are collectively referred to as the Noticees., The shares of Viaan Industries Limited are listed on the Bombay Stock Exchange (BSE) and Noticees No. 1 and No. 2 are the promoters. On 29 October 2015, the company made a preferential allotment of 500,000 equity shares to four persons, of which 128,800 shares each were allotted to the two promoters. Under Regulation 7(2)(a) of the PIT Regulations, the promoters were required to disclose the transaction to the company because its value exceeded ten lakh rupees. Under Regulation 7(2)(b), the company was required to disclose the transaction to the stock exchange within two trading days of receiving the promoters’ disclosures or becoming aware of the transaction. The investigation found that the Noticees failed to make the required disclosures within the prescribed time, thereby violating the PIT Regulations. Consequently, adjudication proceedings were initiated against the Noticees under section 15A(b) of the Securities and Exchange Board of India Act, 1992., By order dated 1 February 2021, issued under Section 19 of the Securities and Exchange Board of India Act in conjunction with Section 15A of the Act and Rule 3 of the SEBI Procedure for Holding Inquiry and Imposing Penalties Rules, 1995 (Adjudication Rules), the undersigned was appointed as the Adjudicating Officer to inquire into and adjudicate the alleged violations by the Noticees under section 15A(b) of the Securities and Exchange Board of India Act., A Show Cause Notice (SCN) numbered SCN/SEBI/EAD1/SBM/KL/9354/2021 dated 26 April 2021 was issued to the Noticees under Rule 4(1) of the Adjudication Rules in conjunction with Section 15A of the Securities and Exchange Board of India Act, requiring them to show cause why an inquiry and penalty should not be imposed for the alleged violations., The SCN alleged that Viaan Industries Limited was incorporated as Hindustan Safety Glass Industries Limited on 19 October 1982 as a public limited company, initially listed on the Calcutta Stock Exchange (CSE) and subsequently listed on the Bombay Stock Exchange (BSE) by direct listing on 20 February 2014. Trading on the CSE ceased in 2013 and no further trading occurred on that exchange., During the investigation period, the promoters’ shareholding was as follows:\n- Quarter ended March 2015: Ripu Sudan Kundra – 786,830 shares (25.75%); Shilpa Shetty Kundra – 786,830 shares (25.75%); Total – 1,573,660 shares (51.51%).\n- Quarter ended June 2015: same figures.\n- Quarter ended September 2015: same figures.\n- Quarter ended December 2015: Ripu Sudan Kundra – 915,630 shares (25.76%); Shilpa Shetty Kundra – 915,630 shares (25.76%); Total – 1,831,260 shares (51.51%)., SEBI sought information from the company, BSE and CSE regarding the change in promoter shareholding and related disclosures. The company responded by e‑mail on 14 May 2019 and on 4, 12 and 13 June 2019, providing details of the disclosures made by it and by BSE., The SCN further alleged that in March 2015 the two promoters acquired 1,573,660 shares of Viaan Industries Limited (786,830 shares each), representing 51.51% of the share capital, thereby becoming the promoters. In the quarter ending December 2015, a preferential allotment of 500,000 shares was made to four persons, of which 128,800 shares each were allotted to the two promoters on 29 October 2015, amounting to a transaction value of Rs 2.57 crore (exceeding ten lakh rupees). The disclosures made by the promoters and the company regarding this transaction are set out in Table 2., The SCN alleged that (i) the promoters, having acquired 128,800 shares each through the preferential allotment valued at Rs 2.57 crore, were required under Regulation 7(2)(a) of the PIT Regulations to disclose the transaction to the company within two trading days, but disclosed it only in May 2019, a delay of more than three years; and (ii) the company, as required under Regulation 7(2)(b), was required to disclose the transaction to the stock exchange within two trading days, but also disclosed it only in May 2019, thereby violating the PIT Regulations., The Noticees submitted their reply to the Show Cause Notice on 8 May 2021. Noticee No. 1 stated that the reply was on his behalf and on behalf of Mrs. Shilpa (Noticee No. 2). The reply confirmed that the company was incorporated as Hindustan Safety Glass Industries Limited, listed on the Calcutta Stock Exchange with no trading since 2013, and listed on the Bombay Stock Exchange in February 2014. It further stated that Ms. Shilpa held 786,830 shares (25.75% of the share capital) and Mr. Ripu held 786,830 shares (25.75%), together constituting 51.51% of the paid‑up capital as promoters from the quarter ended 31 March 2015. The preferential allotment of 257,600 shares (128,800 each) on 29 October 2015 increased their individual holdings to 25.76% each, maintaining a total of 51.51%., The Noticees acknowledged that disclosures under Regulation 7(2) of the PIT Regulations were made in May 2019 with a delay, attributing the delay to inadvertence without malafide intention, and requested that the delay be condoned and the proceedings be dropped., Viaan Industries Limited (Noticee No. 3) stated that the promoters’ shareholding remained at 51.51% after the preferential allotment of 257,600 shares (128,800 each) on 29 October 2015. Since each acquisition exceeded Rs 10 lakh, the company was required to disclose under Regulation 7(2) within two trading days, but it received the promoters’ disclosures only in May 2019 and consequently made the exchange disclosure in May 2019. The company contended that it had not violated Regulation 7(2) and requested that the proceedings be dropped., The Noticees were given an opportunity for personal hearing on 5 July 2021 via an online Webex platform. Ms. Shailashri Bhaskar appeared as the Authorized Representative on behalf of the Noticees and reiterated the submissions made in the letter dated 8 May 2021., The Adjudicating Officer identified the issues for consideration as follows: (I) Whether Noticees No. 1 and No. 2 violated Regulation 7(2)(a) of the PIT Regulations and whether Noticee No. 3 violated Regulation 7(2)(b); (II) If so, whether the violations attract a monetary penalty under section 15A(b) of the Securities and Exchange Board of India Act; (III) If so, the quantum of the monetary penalty., The relevant provisions of the PIT Regulations alleged to be violated are:\n7(2) Continual Disclosures. (a) Every promoter and director shall disclose to the company the number of securities acquired or disposed of within two trading days of the transaction if the value of the securities traded, whether in a single transaction or a series of transactions during any calendar quarter, exceeds ten lakh rupees or such other value as may be specified.\n(b) Every company shall notify the particulars of such trading to the stock exchange on which the securities are listed within two trading days of receipt of the disclosure or becoming aware of such information., I note that in March 2015 Mr. Ripu Sudan Kundra (Noticee No. 1) and Ms. Shilpa Shetty Kundra (Noticee No. 2) became promoters of the company, each holding a 25.75% stake. On 29 October 2015 the company made a preferential allotment of 500,000 equity shares at Rs 10 each with a premium of Rs 190 per share to four persons, including the two promoters, who each received 128,800 shares, valued at Rs 2.57 crore. Because the transaction value exceeded Rs 10 lakh, the promoters were required to disclose the acquisition to the company under Regulation 7(2)(a) within two trading days, and the company was required to disclose to the Bombay Stock Exchange under Regulation 7(2)(b) within two trading days. The records show that the promoters made the disclosures to the company on 20 May 2019 and 22 May 2019, and the company disclosed to the exchange on 21 May 2019 and 22 May 2019, resulting in a delay of more than three years. The promoters have not disputed these facts. Accordingly, the promoters failed to make the required disclosures within the prescribed time., The company contended that upon receiving the promoters’ disclosures in May 2019 it immediately disclosed to the stock exchange, and therefore did not violate Regulation 7(2)(b). However, the information regarding the allotment was available to the company as of 29 October 2015, having been approved at the shareholders’ meeting on 28 September 2015. Consequently, the company was aware of the transaction and was required to disclose within two trading days, but made the disclosure only in May 2019. The contention that it did not violate Regulation 7(2)(b) is therefore untenable, and the company is held to have violated the provision., The Adjudicating Officer rejected the Noticees’ argument that the delay was due to inadvertence and without malafide intention, emphasizing that timely disclosures are essential for investor protection and market integrity. Precedents such as Akriti Global Traders Ltd. v. SEBI (Appeal No. 78 of 2014) and Ankur Chaturvedi v. SEBI (Appeal No. 434 of 2014) were cited, holding that penalty liability arises upon violation of the regulations irrespective of intent or gain., The applicable penalty provision is Section 15A of the Securities and Exchange Board of India Act, which provides that a person who fails to furnish information, return, or documents within the prescribed time shall be liable to a penalty of not less than one lakh rupees and may extend to one lakh rupees for each day of default, subject to a maximum of one crore rupees., Section 15J requires the Adjudicating Officer to consider (a) the amount of disproportionate gain or unfair advantage, (b) the amount of loss to investors, and (c) the repetitive nature of the default. In the present case, no quantifiable gain or loss was identified, and there is no evidence of repetitive default. However, the disclosures were delayed by more than three years, which is a serious breach., The Adjudicating Officer imposes a monetary penalty of Rs 3,00,000 (Rupees Three Lakh only) on the Noticees—Mr. Ripu Sudan Kundra, Ms. Shilpa Shetty Kundra, and Viaan Industries Limited—jointly and severally, under section 15A(b) of the Securities and Exchange Board of India Act., The penalty shall be paid within 45 days of receipt of this order, either by demand draft in favor of SEBI – Penalties Remittable to Government of India payable at Mumbai, or via the SEBI online payment gateway at https://siportal.sebi.gov.in/intermediary/AOPaymentGateway.html. In case of difficulties, the Noticees may contact portalhelp@sebi.gov.in., The Noticees must submit confirmation of e‑payment in the prescribed format to the Division Chief, EFD1‑DRA‑I, Securities and Exchange Board of India, SEBI Bhavan, Plot No. C‑7, “G” Block, Bandra Kurla Complex, Bandra (E), Mumbai 400051, and to the email address tad@sebi.gov.in. The format includes case name, name of payee, date of payment, amount paid, transaction number, bank details, and purpose of payment., Copies of this order are sent to the Noticees—Mr. Ripu Sudan Kundra, Ms. Shilpa Shetty Kundra, and Viaan Industries Limited—and to the Securities and Exchange Board of India., Date: 28 July 2021. Suresh B. Menon.
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Sri Praveen Uppar, learned High Court of Karnataka, accepts notice for respondent Nos. 1 to 4., The appellant is before this Karnataka High Court seeking the following reliefs: (i) call for the records and set aside the impugned order dated 24 June 2021 passed in Writ Petition No. 107136/2018 (S‑RES) by a learned Single Judge of this Honourable Court; (ii) strike down Rule 3(3) of Karnataka Civil Service (Appointment on Compassionate Grounds) Rules, 1996, Notification No. DPAR 100 SCA 95 dated 12 September 1996 issued by respondent No. 1; (iii) issue a writ of mandamus or any other appropriate direction directing respondents Nos. 1 to 3 to issue an appointment order on compassionate ground; (iv) issue a writ of certiorari or any other appropriate writ or order quashing the endorsement dated 7 August 2018 issued by respondent No. 2 (Annexure‑F) and the endorsement dated 16 August 2018 issued by respondent No. 4 (Annexure‑G); and (v) grant such other reliefs as this Honourable Court may deem fit in the interest of justice and equity., Writ Petition No. 107136/2018 had been filed seeking to strike down sub‑Rule (3) of Rule 3 of Karnataka Civil Service (Appointment on Compassionate Grounds) Rules, 1996, Notification DPAR 100 SCA 95 dated 12 September 1996 issued by respondent No. 1 as per Annexure‑H., It is the case of the appellant that the petitioner is the adopted son of Vinayak M. Muttatti, who was working as a Class‑IV employee (dalayat) in the office of Assistant Public Prosecutor, Junior Metropolitan Magistrate Court, Banahatti. The appellant was adopted on 8 December 2011 by way of an adoption deed, the adoption being made because the natural born son of Vinayak M. Muttatti had expired in a road traffic accident on 8 November 2010., The adoptive father Vinayak M. Muttatti expired on 27 March 2018. The appellant submitted a representation on 7 June 2018 seeking a compassionate appointment. That representation was rejected by respondent No. 2 by endorsement dated 7 August 2018 and by respondent No. 4 on 16 August 2018 on the ground that the appellant was an adopted son and the Rules do not provide for consideration of an adopted son for compassionate appointment. It is in that background that the Writ Petition was filed., The learned Single Judge, by his order dated 24 June 2021, dismissed the challenge on the ground that the Rules do not provide for an adopted son to be considered for compassionate appointment. The appellant is before this Karnataka High Court challenging that order., Another Single Judge of this Court, in Writ Petition No. 211068/2020, considered all the issues and, by judgment dated 23 February 2022, taking into consideration the amendment to the Rules made on 9 April 2021, concluded that there cannot be a distinction between a natural born son and an adopted son., Sri Shravan Madhav, learned counsel for the appellant, submits that the amendment made on 9 April 2021 was not brought to the notice of the learned Single Judge when the order dated 24 June 2021 was passed. He relies upon the judgment of the other learned Single Judge in Writ Petition No. 211068/2020 and submits that the writ appeal ought to be allowed., Sri Praveen Uppar, learned High Court of Karnataka, who has entered appearance for the respondents, submits that consideration of the application must be made on the basis of the Rules applicable on the date of the application and that the subsequent amendment cannot be extended to the petitioner. He contends that the judgment of the learned Single Judge is proper and does not require any interference., Heard Sri Shravan Madhav, learned counsel for the appellant, and Sri Praveen Uppar, learned High Court of Karnataka for the respondents. Papers were perused., The short question raised, apart from the amendment made to the Rules on 9 April 2021, is whether an adopted son must be treated equally to a natural son while considering an application for compassionate appointment., The ground for compassionate appointment arises only on account of financial difficulty or stringency faced by the family after the death of the earning family member employed in Government service. The object and intention of compassionate appointment is to enable a family member to take care of the entire family, and therefore such an application must be considered., Admittedly, the deceased left behind his wife, son, adopted son and a daughter who is mentally retarded and physically handicapped. In view of those facts, the appointing authority must consider the application for compassionate appointment if there is financial stringency., Respondent Nos. 2 and 4 have sought to distinguish between an adopted son and a natural son to deprive the adopted son of compassionate appointment. The daughter, being a natural daughter, would have been entitled to compassionate appointment but for her mental and physical disabilities. The adopted son, who was adopted by the deceased to take care of the family after the death of a natural‑born son, has applied for compassionate appointment., In these circumstances, we are of the considered opinion that the application made by the adopted son for compassionate appointment is bona fide and must be considered in view of the family's difficulties. The distinction made by respondents Nos. 2 and 4 between an adopted son and a natural son, based on the existing Rules, would have no impact in this matter; a son is a son and a daughter is a daughter, adopted or otherwise. Accepting such a distinction would defeat the purpose of adoption. Moreover, the distinction would violate Article 14 of the Constitution, and the Rules have been amended to remove the artificial distinction., Therefore, the contention of Sri Praveen Uppar, learned High Court of Karnataka, that the application has to be considered on the basis of the Rules applicable on the date of the application is liable to be rejected, since the artificial distinction between an adopted son and a natural son was the basis for the endorsement., In the above circumstances, we pass the following: (i) The appeal is allowed. (ii) The order dated 24 June 2021 passed by the learned Single Judge in Writ Petition No. 107136/2018 is set aside. (iii) The endorsement dated 7 August 2018 issued by respondent No. 2 (Annexure‑F) and the endorsement dated 16 August 2018 issued by respondent No. 4 (Annexure‑G) are quashed, and a mandamus is issued directing respondent No. 2 to consider the representation submitted by the petitioner on 7 June 2018 for compassionate appointment as if the petitioner were a natural born son, without making any distinction, to be considered within twelve weeks from receipt of a certified copy of this order. (iv) Respondent No. 2 shall act on a printout of the uploaded copy of this order, without insisting on a certified copy. In the event of any doubt, Respondent No. 2 may cross‑check the order by scanning the QR code on this judgment, which will lead to the judgment hosted on the website of the Karnataka High Court. (v) Learned counsel for the appellant is permitted to furnish a printout copy of this order to respondent No. 2.
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Versus Appearance: Mr. A. J. Yagnik (1372) for the Applicant No. 1 for the Respondent No. 2,3 Date: 10/02/2023. By way of the main petition being Special Criminal Application No. 5485 of 2019, the petitioner has prayed for the following reliefs: (a) Be pleased to admit and allow this petition; (b) Be pleased to direct the respondents to provide the petitioner and her family with armed police protection at the cost of the State; (c) Be pleased to grant interim/ad‑interim relief in terms of paragraph 10(b); (d) Be pleased to pass such other and further order as the nature and circumstances of the case may require in the interest of justice and equity., However, learned advocate Mr. A. J. Yagnik makes a statement at bar that the petitioner does not press the prayers of the petition being Special Criminal Application No. 5485 of 2019 at this stage, and he is limiting his prayers made in Criminal Miscellaneous Application No. 2 of 2019 in Special Criminal Application No. 5485 of 2019, which read as under: A. To direct the respondents to produce the copy of the document of process undertaken before withdrawing the security of the petitioner; B. Your Lordship be pleased to direct the respondents to produce the copy of the communication dated 16.07.2018 whereby the police commissioner was directed by the in‑charge Director General of Police (Law and Order) to withdraw the security; C. Your Lordship be pleased to direct the respondents to produce relevant documents to show what were the essential factors that were considered by the reviewing committee before withdrawing the security of the petitioner; D. During the pendency and/or final disposal of the present application Your Lordship be pleased to grant interim or ad‑interim relief in terms of paragraph E. To pass any other and further reliefs that may be deemed fit and proper and in the interest of justice and equity., A perusal of the prayers made in Criminal Miscellaneous Application No. 2 of 2019 would indicate that the police protection granted to the husband of the petitioner was withdrawn vide communication dated 16.07.2018 and the petitioner is asking for a copy of the said communication., The Coordinate Bench of the High Court vide order dated 02.12.2019 passed the following order: Learned Public Prosecutor to place on record orders withdrawing protection before the Registry on or before 24.12.2019. Standing Order to 27.12.2019., Thereafter another Coordinate Bench of the High Court, on 13.09.2021, passed the following order: Learned Public Prosecutor Mr. Mitesh Amin prays for time to place on record in compliance of order dated 02.12.2019. If that is so, the report be placed before the Registry so as to be tagged with this matter. Let the matter be listed on 22.09.2021., Thereafter vide order dated 03.12.2021 the compliance of the order dated 02.12.2019 was recorded by the Coordinate Bench of the High Court which is read as under: In compliance of the order dated 02.12.2019 learned Additional Public Prosecutor Mr. Pranav Trivedi has produced the copy of the order passed by In‑charge Director General of Police (Law and Order), Home Department, State of Gujarat; the same is ordered to be taken on record. Let the matter be listed on 24.12.2021., Today when the matter was heard, learned advocate Mr. A. J. Yagnik appearing for the petitioner submitted that though the copy of the order dated 16.07.2018 is provided to him, the same cannot be said to be an order but the same can be said to be a communication only and not the order., Learned advocate Mr. Yagnik submitted that it is the right of the petitioner to know the grounds or reasons for which the police protection provided to the husband of the petitioner was withdrawn and, therefore, asked for any further order directing the State Government to produce reasoning behind the order dated 16.07.2018., Learned Public Prosecutor Mr. Mitesh Amin assisted by learned Additional Public Prosecutor Ms. Mehta, at the outset, submitted that the order dated 16.07.2018 is a confidential order and the same is produced only because the Court directed the State Authority to produce the same and a copy of the same is made available to learned advocate Mr. Yagnik., Learned Public Prosecutor Mr. Amin submitted that the aforesaid order, being an order of confidential nature, under directions of the Court the same is provided and the rest of the documents, which are of sensitive nature pertaining to the security of VIP and VVIP persons who have asked for police protection, are not to be parted with by the State., Learned Public Prosecutor Mr. Amin submitted that it is not the case that security of the husband of the petitioner only has been withdrawn as vide order dated 16.07.2018 police protection granted to as many as 64 persons was withdrawn after assessing the overall situation by a committee headed by the Additional Chief Secretary of Home Department in its meeting dated 15.05.2018., Learned Public Prosecutor Mr. Amin also apprised the High Court about the fact that at the relevant point of time the police protection was granted to the husband of the petitioner as he was a serving police officer and also a witness in respect of a criminal case. At that time, on consideration of overall facts and circumstances, the police protection was provided. Thereafter since September 2018 the husband of the petitioner has been arrested by State Police and is behind bars till today. Mr. Amin submitted that, in fact, in one of the trials the husband of the petitioner has been convicted as well; however, at the relevant point of time, considering the fact that he was serving as a police officer as well as a witness in a particular criminal case, police protection was granted to the husband of the petitioner and since those circumstances now do not exist the police protection has been rightly withdrawn., Learned Public Prosecutor Mr. Amin further submitted that even otherwise, considering the confidentiality of the matter as it involves many other dimensions about security of VIPs and VVIPs, it cannot be parted with by way of providing documents to the petitioner and, therefore, once the State Committee has considered overall threat perception and also considered the fact that at present the husband of the petitioner is under police custody, as he has already been arrested since 2018, he does not require any police protection and as such this application is nothing but an abuse and misuse of process of law; the details sought by the petitioner cannot be parted with., By making the aforesaid submissions, learned Public Prosecutor Mr. Amin prayed for dismissal of the petition., I have considered the submissions made by learned advocate Mr. Yagnik and learned Public Prosecutor Mr. Amin., The High Court put a query to learned advocate Mr. Yagnik whether getting police protection is a matter of right or a matter of discretion of the State Authority by taking into consideration the threat perception or not. Learned advocate Mr. Yagnik could not dispute the fact that getting police protection is not a matter of right; however, he submitted that administrative law requires that once police protection is granted and if the same is withdrawn, at least reasoning should be made available to the person in whose favour police protection was granted., Learned advocate Mr. Yagnik submitted that except for the aforesaid fact, the action of the State of not providing reasons for withdrawing police protection amounts to violation of Article 14 of the Constitution of India; the State is bound to give the reasons for withdrawal of police protection., In view of the above, since learned advocate Mr. Yagnik could not establish the fact whether getting police protection is a matter of right, this Court tried to assert the aforesaid fact from learned Public Prosecutor Mr. Amin who made submissions which are already incorporated in the foregoing paragraph., As pointed out and noted in the foregoing paragraphs, the reason behind granting police protection at the relevant point of time was that the husband of the petitioner was a serving IPS officer and also a witness in a criminal trial. Today the husband of the petitioner is arrested and in jail since September 2018 which shows that the ground on which the police protection was sought by the petitioner does not exist today. Further, when police protection is not a matter of right and police have very limited resources for granting protection, if any application is considered positively by the State Government and subsequently withdrawn and if the State is directed to assign reasons for each and every withdrawal of police protection, the limited police force which is meant for protection of citizens at large and for maintaining law and order will be busy with those administrative works only., When a responsible State Officer like learned Public Prosecutor makes a statement at bar and makes available a copy of the order dated 16.07.2018 whereby the police protection has been withdrawn not only in respect of the husband of the present petitioner but in respect of a total of 64 persons also, the intention of the State Government cannot be questioned as the decision was taken by a committee headed by the Additional Chief Secretary, Home Department of the State Government and the decision taken by the said committee is approved by the State Government which shows that at various levels the decision taken by the Committee was scrutinized and ultimately approved., Further considering the fact that the Committee has taken a decision of withdrawing police protection not only in respect of one person but in respect of many persons to whom police protection was granted and thereafter the Committee has considered continuing police protection for some persons and discontinuing it for others, this indicates that the Committee decided the issue by taking stock of the overall situation and facts and circumstances existing at the relevant point of time. If any decision in respect of police protection is directed to be placed on record, there is a possibility that it may expose the various modes and methods of collecting information by the State Government in respect of security and threat perception about VIPs and VVIPs, which may be of a sensitive nature. If such a decision is directed to be provided to the petitioner, the methods by which the State Government decides whether police protection is required to be granted to a particular person or not, and whether to continue with it or not, may be exposed, which could frustrate the real purpose behind granting police protection., When the petitioner could not successfully establish his right of getting police protection, after overall consideration by the State Government for withdrawal of police protection, if any order is passed, it is not open for the petitioner to ask for reasons behind withdrawal of police protection., This Court finds that the State is absolutely justified in not disclosing the reasons and in refusing to place any other material as the right of the petitioner is very limited and even in the prayer the petitioner has specifically asked for the order dated 16.07.2018 and therefore the Coordinate Bench has observed in its order dated 03.12.2021 that the order dated 02.12.2019 is complied with. Since in the prayer itself the petitioner has prayed for production of communication dated 16.07.2018, the same is produced by the State Government. As far as another prayer made by the petitioner to direct the respondent to produce relevant document to show where the essential factors were considered by the Reviewing Committee, if those factors are asked to be produced before this Court, the confidentiality of the mode and method about providing or withdrawing police protection will not be maintained and, therefore, in the larger public interest, I do not deem it appropriate to issue any further direction once the order dated 16.07.2018 is already made available on record and is already provided to the petitioner., In view of the foregoing discussion, the present application is required to be dismissed and it is dismissed accordingly., Since the prayer made in the main petition is not pressed by the petitioner, no further order is required. Hence, the main petition is also disposed of as not pressed.
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Bhupinder Singh Appellant(s) versus Unitech Limited Respondent(s)/Applicant(s) Present Interim Application No. 88960 of 2020 has been preferred by the present management of Unitech Limited seeking the following prayers and directions: Direct Messrs Devas Global Limited Liability Partnership to deposit the entire sale consideration of Rupees 206.50 crores for 26.475 acres of land sought to be purchased by it in a time‑bound manner; Direct Messrs Devas Global Limited Liability Partnership to either purchase the entire land, as committed, at the same rate or, in the alternative, provide suitable access to the balance land by taking only proportionate frontage of the land so that any other subsequent purchaser is also able to get adequate access to the land without any interference and Unitech is able to maximise its revenues from realisation of assets; Direct that Messrs Devas Global Limited Liability Partnership shall not create any third‑party rights on the entire land and if any rights have been created surreptitiously, then the same shall be kept in abeyance and no further action be taken in furtherance of the same; Direct Messrs Markwell Properties Private Limited to pay an amount of Rupees 29,24,87,837 which was given as advance for the purchase of 36 acres of land out of which only 26 acres 19 guntas land was transferred, along with interest from March 2007 till its payment; Direct Colonel Mohinder Singh Khaira and Naresh to immediately return a sum of Rupees 83.40 crores and deposit the said amount in the Registry of the Supreme Court of India, which they have received in respect of sale of 12 acres 21 guntas (first sale transaction) and 10 acres 3.5 guntas (second sale transaction) to Devas along with interest; Direct Colonel Mohinder Singh Khaira and Naresh to provide all the requisite documents, including the details of financial transactions in respect of 26 acres 19 guntas of land as mentioned above; Direct legal action be taken against Colonel Mohinder Singh Khaira for forgery, cheating, fraud and criminal conspiracy for submission of Board Resolutions of the Company after its dissolution regarding his own authorisation; and pass any such further orders that the Supreme Court of India deems fit in the facts and circumstances of the present case., The dispute with respect to the sale consideration in respect of 26 acres and 19 guntas of land (hereinafter referred to as land in question) owned by Unitech Limited in favour of Messrs Devas Global Services Limited Liability Partnership located at Kadiganahalli Village, Bangalore, was confirmed in favour of Messrs Devas Global Services Limited Liability Partnership pursuant to earlier orders passed by the Supreme Court of India., As per the case on behalf of Unitech Limited, Unitech Limited was the absolute owner of the land in question and therefore entitled to the entire sale consideration of Rupees 172.08 crores. It is the case that despite this, the amount received in the account of Unitech in the Supreme Court Registry out of the sale transaction is only Rupees 87.35 crores and the balance amount was ordered to be appropriated or paid to the respondents Shri Naresh Kempanna (Rupees 56.11 crores) and Colonel Mohinder Khaira (Rupees 41.96 crores), which, according to Unitech, they were not entitled to. Unitech contends that true facts were not brought to the notice of the Justice Dhingra Committee and even before the Supreme Court of India and that the aforesaid amounts were ordered to be appropriated in favour of Shri Naresh Kempanna and Colonel Mohinder Khaira respectively., It is the case on behalf of Unitech Limited that none of the rights of the aforesaid two persons, who received any amount out of the total sale consideration of Rupees 172.08 crores, were adjudicated upon by the Supreme Court of India or by the Justice Dhingra Committee. The aforesaid amount has been paid to Shri Naresh Kempanna and Colonel Mohinder Khaira pursuant to a Memorandum of Understanding dated 02.01.2018. Therefore, Unitech Limited, being the absolute owner of the land in question, asserts that neither Colonel Mohinder Khaira nor Shri Naresh Kempanna have any title or ownership rights in the land and were not entitled to any amount out of the total sale consideration. Unitech alleges that a fraud has been committed by Messrs Devas Global Services Limited Liability Partnership, Colonel Mohinder Khaira and Shri Naresh Kempanna and the erstwhile directors and management of Unitech Limited. Unitech states that the actual sale consideration paid to it is just about fifty per cent of the total amount, to the detriment of home buyers, fixed deposit holders, employees and other important stakeholders. Unitech questions the basis on which the amount was ordered to be appropriated in favour of Shri Naresh Kempanna and Colonel Mohinder Khaira., If the true and correct facts had been pointed out to the Supreme Court of India and the dispute with respect to the appropriation of the sale consideration had been adjudicated upon by the Supreme Court of India or the Justice Dhingra Committee, this Court might not have passed any order to pay any amount to the aforesaid two persons out of the total sale consideration of Rupees 172.08 crores. Therefore, Unitech prays that the prayers be allowed and directions issued as prayed in the present application, even by invoking the principle of restitution., Shri N. Venkataraman, learned Additional Solicitor General appearing on behalf of the management of Unitech Limited, pointed out the number of facts and various transactions with respect to the land in question from 2005 onwards to demonstrate and satisfy the Supreme Court of India that Unitech Limited was the absolute owner of the land and that neither Shri Naresh Kempanna nor Colonel Mohinder Khaira had any title or ownership rights in the land and therefore were not entitled to any amount out of the sale consideration., The present application has been vehemently opposed by learned counsel appearing on behalf of the respondents Shri Naresh Kempanna and Colonel Mohinder Khaira. Several submissions have been made on merits on behalf of the contesting respondents in whose favour the amount has already been disbursed pursuant to earlier orders passed by the Supreme Court of India. Pursuant to those orders, solely on the basis of the report submitted by the Justice Dhingra Committee and a Memorandum of Understanding dated 02.01.2018, without adjudicating the rights of the respective parties, the amount of Rupees 98.07 crores was paid to Shri Naresh Kempanna and Colonel Mohinder Khaira (Rupees 56.11 crores to Shri Naresh Kempanna and Rupees 41.96 crores to Colonel Mohinder Khaira). However, the Justice Dhingra Committee submitted the report to pay the said amount to the two persons without any adjudication of the claims of Unitech, Messrs Devas Global Services Limited Liability Partnership and the two persons, and the Supreme Court of India passed the order directing payment of Rupees 56.11 crores to Shri Naresh Kempanna and Rupees 41.96 crores to Colonel Mohinder Khaira out of the sale proceeds of the land sold to Messrs Devas Global Limited Liability Partnership. There was no adjudication by this Court on the entitlement of the amount paid to the two persons. There are serious disputes on the entitlement of the amount already paid to them. Thus, there was an obvious error or mistake on the part of this Court in directing payment of Rupees 56.11 crores to Shri Naresh Kempanna and Rupees 41.96 crores to Colonel Mohinder Khaira, which was without any adjudication of their claims. In view of the matter, we are of the opinion that the mistake committed by this Court is to be corrected on the basis of the principle of restitution., On the principle of restitution, the decision of the Constitution Bench of the Supreme Court of India in the case of Indore Development Authority versus Manoharlal and Others (2020) 8 Supreme Court Cases 129 is required to be referred to. In paragraphs 335 to 339, it is observed and held as follows: The principle of restitution is founded on the ideal of doing complete justice at the end of litigation, and parties have to be placed in the same position but for the litigation and interim order, if any, passed in the matter. In South Eastern Coalfields Limited v. State of Madhya Pradesh (2003) 8 Supreme Court Cases 648, it was held that no party could take advantage of litigation. It has to disgorge the advantage gained due to delay in case the suit is lost. The interim order passed by the court merges into a final decision. The validity of an interim order passed in favour of a party stands reversed in the event of a final order going against the party successful at the interim stage. Section 144 of the Code of Civil Procedure is not the fountain source of restitution. It is rather a statutory recognition of the rule of justice, equity and fair play. The court has inherent jurisdiction to order restitution so as to do complete justice. This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it. In exercise of such power, the courts have applied the principle of restitution to myriad situations not falling within the terms of Section 144 of the Code of Civil Procedure. What attracts applicability of restitution is not the act of the court being wrongful or a mistake or an error committed by the court; the test is whether, on account of an act of the party persuading the court to pass an order held at the end as not sustainable, resulting in one party gaining an advantage which it would not have otherwise earned, or the other party having suffered an impoverishment, restitution has to be made. Litigation cannot be permitted to be a productive industry. Litigation cannot be reduced to gaming where there is an element of chance in every case. If the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order. This Court observed in South Eastern Coalfields Limited v. State of Madhya Pradesh thus:, In State of Gujarat v. Essar Oil Limited (2012) 3 Supreme Court Cases 522, it was observed that the principle of restitution is a remedy against unjust enrichment or unjust benefit. The Court observed: The concept of restitution is virtually a common law principle, and it is a remedy against unjust enrichment or unjust benefit. The core of the concept lies in the conscience of the court, which prevents a party from retaining money or some benefit derived from another, which it has received by way of an erroneous decree of the court. Such remedy in English law is generally different from a remedy in contract or in tort and falls within the third category of common law remedy, which is called quasi‑contract or restitution. If we analyse the concept of restitution, one thing emerges clearly that the obligation to restitute lies on the person or the authority that has received unjust enrichment or unjust benefit., In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (2012) 6 Supreme Court Cases 430, it was stated that restitutionary jurisdiction is inherent in every court, to neutralise the advantage of litigation. A person on the right side of the law should not be deprived, on account of the effects of litigation; the wrongful gain of frivolous litigation has to be eliminated if the faith of people in the judiciary has to be sustained. The Court observed:, In Indian Council for Enviro‑Legal Action v. Union of India (2011) 8 Supreme Court Cases 161, the Court dealt with the concept of restitution. In Ram Krishna Verma v. State of Uttar Pradesh (1992) 2 Supreme Court Cases 620, this Court observed that operators have been running their stage carriages by blatant abuse of the process of the court by delaying the hearing. The Court held that the interest of justice requires that any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised., In Kavita Trehan v. Balsara Hygiene Products Limited (1994) 5 Supreme Court Cases 380, the Court observed that the jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands, even if the case does not strictly fall within the ambit of Section 144 of the Code of Civil Procedure, 1908., In Marshall Sons & Company (India) Limited v. Sahi Oretrans (P) Limited (1999) 2 Supreme Court Cases 325, the Court observed that proceedings are often dragged on for a long time and unscrupulous parties take undue advantage, and that appropriate orders such as mesne profit, appointment of a Receiver, etc., may be necessary to protect the interest of the judgment creditor., In Padmawati v. Harijan Sewak Sangh (2008) Delhi High Court, the Court held that frivolous litigation is a calculated venture involving no risk, and that costs imposed on such litigants should be equal to the benefits derived and the deprivation suffered by the rightful person, to discourage unjust enrichment using courts as a tool., The Supreme Court of India dismissed the special leave petition in Padmawati v. Harijan Sewak Sangh (2012) 6 Supreme Court Cases 460, finding no ground to interfere with the High Court judgment., In Ouseph Mathai v. M. Abdul Khadir (2002) 1 Supreme Court Cases 319, the Court reiterated that a stay granted by the court does not confer a right upon a party and is always subject to the final result of the matter., In Kalabharati Advertising v. Hemant Vimalnath Narichania (2010) 9 Supreme Court Cases 437, the Court observed that courts should be careful in neutralising the effect of consequential orders passed pursuant to interim orders, and that the restitutionary principle requires that the advantage gained by a litigant should be suitably offset in favour of the other party.
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In Krishnaswamy S. Pd. v. Union of India [Krishnaswamy S. Pd. v. Union of India, (2006) 3 Supreme Court Cases 286], it was observed that an unintentional mistake of the Supreme Court of India, which may prejudice the cause of any party, must and alone could be rectified. Thus, in our opinion, the period for which the interim order has operated under Section 24 has to be excluded for counting the period of five years under Section 24(2) for the various reasons mentioned above., As per the settled position of law, the act of the Supreme Court of India shall prejudice no one and in such a fact situation, the Supreme Court of India is under an obligation to undo the wrong done to a party by the act of the Supreme Court of India. The maxim acta curiae neminem gravabit shall be applicable. As per the settled law, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Supreme Court of India must be neutralized, as the institution of litigation cannot be permitted to confer any advantage on a suitor by the act of the Supreme Court of India., Applying the principle of restitution and the law laid down by the Supreme Court of India in the case of Indore Development Authority (supra) on the principle of restitution to the facts of the case on hand, we are of the opinion that this is a fit case to apply the principle of acta curiae neminem gravabit and the principle of restitution and to direct Shri Naresh Kempanna and Colonel Mohinder Khaira to return the amount and deposit the same with the Supreme Court of India with nine percent interest from the date on which the payment is received by them. However, with the liberty in their favour to move appropriate application(s) or appropriate proceedings before the Supreme Court of India for adjudication of their rights to receive any amount from the sale proceeds of the land sold to Messrs Devas Global LLP., In view of the above and for the reasons stated above, Shri Naresh Kempanna and Colonel Mohinder Khaira are hereby directed to return and deposit the amount paid to them (i.e., Rs. 56.11 crores paid to Shri Naresh Kempanna and Rs. 41.96 crores paid to Colonel Mohinder Khaira), paid pursuant to the earlier order(s) passed by the Supreme Court of India, with nine percent interest from the date on which the amount is received, to be deposited with the Registry of the Supreme Court of India within four weeks from today. However, it will be open for either of them to move appropriate application(s) or appropriate proceedings for adjudication of their rights to receive any amount from the sale proceeds of the land sold to Messrs Devas Global LLP and as and when such application(s) is/are made, the same be considered in accordance with law and on its own merits. The present application is disposed of in terms of the above. Interim Application No. 47525 of 2021 filed for impleadment is also disposed of. Doctor D. Y. Chandrachud.
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Ajay Madhukar Makaji Mudgul, Age: 40 years, resident of Gole, Gondegaon, Taluka Niphad, District Nashik. (Presently lodged at Nashik Central Prison, Nashik). Appellant versus the State of Maharashtra through Lasalgaon Police Station, Respondent. High Court on its own motion petitioner versus Madhukar Makaji Mudgul, respondent. Mr. Ashish Satpute, Advocate for the Appellant in Appeal No. 218 of 2013 and for the Respondent in Appeal No. 309 of 2014. Mr. H.J. Dedhia, Additional Public Prosecutor for the State in Appeal No. 218 of 2013 and for the State in Appeal No. 309 of 2014. Reserved on 25 July 2022. Pronounced on 19 August 2022., Criminal Appeal No. 218 of 2013 has been filed by the appellant (accused) against the judgment and order dated 13 February 2013 passed by the learned Additional Sessions Judge, Niphad, District Nashik in Sessions Case No. 32 of 2006, convicting the appellant for offences punishable under Sections 376 and 503 of the Indian Penal Code, 1860 and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs.1,000, in default of which he shall undergo simple imprisonment for one month., Criminal Appeal No. 309 of 2014 has been filed by the State of Maharashtra for enhancement of the sentence passed by the learned trial court convicting the appellant., Criminal Suo-Motu Petition No. 2 of 2015 has been registered by this court having issued a suo-motu notice for enhancement of the sentence passed by the learned trial court vide order dated 26 June 2013 in Criminal Appeal No. 218 of 2013. The appeal is admitted. The applicant is convicted for the offence punishable under Section 376 of the Indian Penal Code, sentenced to rigorous imprisonment for five years and to pay a fine of Rs.1,000, in default of which simple imprisonment for one month shall be imposed. The minimum sentence for the offence under Section 376 is seven years. The Sessions Court justified a lesser sentence on the grounds that the accused had been undergoing trial for six to seven years and that he was about sixty years of age. The victim was the appellant’s sister‑in‑law, who is physically handicapped, being deaf and mute. The notice for enhancement of sentence was served upon the applicant in Nashik Central Prison, returnable on 10 July 2013. The learned counsel for the applicant was granted time to file a private paper book within six weeks. In the meanwhile, the court called for records and pleadings., The facts emerging from the record are as follows: Mother of the victim, Meerabai Jairam Gare, the first informant, filed First Information Report No. I‑98 of 2005 with Lasalgaon Police Station concerning the alleged rape of her daughter ‘X’ by the appellant. Victim ‘X’ is the wife of Bhausaheb Mudgul, younger brother of the accused. The victim is deaf and mute and communicates by gestures and sign language. She was married to Bhausaheb for five years and had one son. On 19 November 2005, after being taken to her paternal house by her father‑in‑law, the victim informed her father‑in‑law that she had been ravished three days earlier and threatened not to disclose the incident. The first informant immediately approached Lasalgaon Police Station and lodged the report. Police Inspector Sangle recorded the victim’s statement with the help of the first informant, referred her for medical examination, recorded statements of witnesses and conducted a spot‑panchanama. The appellant was arrested and also referred for medical examination. After completion of investigation, a charge‑sheet was filed stating that on 16 November 2005 at about 21:00 to 22:00 hours, in the victim’s residential house, the appellant committed rape without her consent and threatened her husband and reputation if she disclosed the offence. The appellant pleaded not guilty., Prosecution examined six witnesses: PW‑1 Vrushali Shrikant Gharpure, a special teacher and translator for deaf and mute persons; PW‑2 the victim herself, examined through PW‑1; PW‑3 Dr. Vijaysingh Dnyanoba Mundhe, who examined the appellant on 19 November 2005; PW‑4 Meerabai Jayram Gare, mother of the victim; PW‑5 Prabhakar Bhaguji Gade, spot‑panchanama witness; PW‑6 Dr. Sandhya Vilas Patil, who examined the victim on 20 November 2005. In addition, prosecution relied upon chemical analyser reports of blood, pubic hair, nail clippings of the accused and blood, pubic hair, vaginal swab and vaginal smear samples of the victim., Mr. Ashish Satpute, counsel for the appellant, argued that the prosecutrix filed a false complaint to pressurise the family for partition of property; that on 16 November 2022 the appellant was not present in the house and had gone with family members to attend a kirtan programme, returning late at night; that the investigating officer was not examined; that there was a three‑day delay in filing the report, which is fatal to the complaint; that no injuries were found on the victim’s private parts; that the victim did not disclose the incident to the doctor who attended her in the hospital; and that the police recording of the victim’s statement was highly suspicious. He prayed for setting aside the impugned judgment and, alternatively, that since the appellant has already undergone the five‑year sentence, both Criminal Appeal No. 309 of 2014 and Suo‑Motu Petition No. 2 of 2015 be dismissed., Mr. H.J. Dedhia, learned Additional Public Prosecutor, on behalf of the State, submitted that the accused is the brother‑in‑law of the victim and that on 16 November 2005, all family members except the accused, the victim and her blind husband had gone to attend a kirtan programme in the village temple. At about 22:00 hours, when the victim was alone inside the house, the accused entered, forced himself on her and ravished her. He submitted that circumstantial evidence clearly established the commission of the overt act, corroborated by medical evidence, and prayed for enhancement of the sentence of five years awarded to the appellant under the unamended provisions of Section 376 IPC prior to 2018., We have perused the evidence of the prosecution witnesses carefully. Evidence of PW‑1, PW‑2 and PW‑4 reveals that the incident took place on 16 November 2005 whereas the FIR was lodged on 19 November 2005. It also appears that immediately after the incident the victim, through gestures, informed her father‑in‑law, but no steps were taken until 19 November 2005, when the report was lodged. Hence the delay, if any, is legitimate and properly explained., Considering that the incident occurred inside the house, the evidence given by the victim through PW‑1, read with the evidence of PW‑4, clearly indicates and proves the incident. PW‑1, an expert witness, has given evidence before the court. The prosecution has examined PW‑1 and her evidence indicates that the victim informed her in the presence of the High Court of Bombay how she was dealt with by the accused. Questions asked to the victim through PW‑1 and answers recorded by the High Court of Bombay show the skill of PW‑1 in communicating with the victim. We are convinced that the entire evidence supports the prosecution., It is pertinent to note that the testimony of PW‑1, the expert witness, is not challenged before the trial court. PW‑1, as translator/interpreter, had no interest in the trial. The statements and gestures of the victim, interpreted by PW‑1, are corroborated by the evidence of PW‑4, the mother of the victim. The evidence of these three witnesses is not shattered in cross‑examination. The interpreter acted on the direction of the investigating officer and the learned trial court, based on her expertise as a special teacher for hearing and speech impaired children. Hence, the evidence of PW‑1, PW‑2 and PW‑4 deserves to be accepted., The incident occurred on 16 November 2005, whereas the partition suit Registered Civil Suit No. 8 of 2006 was filed by Bhausaheb Makaji Mudgul in 2006. The defence cannot rely on the partition dispute because it arose after the incident., It is pertinent to note that, since the victim is deaf and mute, her evidence was recorded through the expert witness PW‑1 under Section 119 of the Indian Evidence Act, 1872. PW‑1 is an experienced special teacher working since 1987 with Smt. Mai Lele Shrawan Vikas Vidyalaya, Nashik, holding a Bachelor of Arts and Bachelor of Education (Deaf) degrees. PW‑2, the victim, testified that on the date of the incident her husband was sleeping outside the house, other family members were at the temple, and she was alone with her son. At about 22:00 hours the accused entered, closed the door, shut her mouth and ravished her, threatening her not to disclose the incident and promising a handsome amount. She later informed her father‑in‑law, who dropped her at her paternal house for two days. The victim had undergone uterine surgery earlier and had been advised to abstain from sexual relations for some time., It will be useful to refer to Section 119 of the Indian Evidence Act, 1872 which defines a dumb witness as one who is unable to speak but may give evidence in any other manner, such as writing or signs, which must be made in open court and shall be deemed oral evidence. In the present case, the provisions of Section 119 have been fully complied with. The victim, PW‑2, was examined through the expert witness PW‑1, who interpreted sign language and gestures, and both were administered oath. The cross‑examination was insufficient to disprove the incident., During cross‑examination, the victim was asked about the partition suit and stated that the suit could end if the portion of the field claimed by her husband is delivered to him by the accused and the father‑in‑law. The defence views this as an indication of a false complaint, but the statement has no nexus with the alleged rape and cannot be the basis for discarding the complaint., The testimony of PW‑4, the mother of the victim, also deserves belief as it corroborates PW‑1 and PW‑2. Medical evidence includes PW‑3, Dr. Vijaysingh Mundhe, who examined the accused on 19 November 2005 within 24 hours of the incident and collected samples; and PW‑6, Dr. Sandhya Patil, who examined the victim on 20 November 2005. The delay in the victim’s medical examination does not render the certificate unreliable. The chemical analyser report shows human semen detected on the accused’s pubic hair., The Apex Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (AIR 1983 SC 753) held that refusal to act on the testimony of a victim of sexual assault in the absence of corroboration adds insult to injury and that the evidence of a woman who complains of rape should not be viewed with doubt. The Apex Court in Sheikh Zakir v. State of Bihar (AIR 1983 SC 911) held that the absence of injury on the complainant does not discredit her statement and that a conviction based solely on the prosecutrix’s evidence is not illegal., The Apex Court in Moti Lal v. State of Madhya Pradesh, referring to observations in Rameshwar v. State of Rajasthan, observed that a woman who is raped is not an accomplice, that corroboration is not a sine qua non for conviction, and that the victim’s testimony need not be corroborated by a doctor’s evidence. The Court emphasized the need for sensitivity in rape cases and that minor contradictions should not defeat a reliable prosecution case., In the present case, the testimony of PW‑1, PW‑2 and PW‑4, read together, clearly proves the offence. The defence has failed to place any cogent material on record. Accordingly, the prosecution has proved its case beyond reasonable doubt., The unamended Section 376 IPC prior to 21 April 2018 prescribed a minimum of seven years rigorous imprisonment for rape, unless the case falls under sub‑section (2). The present case is covered by Section 376(1). The learned trial court erred in awarding only five years on the basis of the appellant’s age and the duration of trial. Therefore, the sentence is set aside and substituted as follows: the accused Madhukar Makaji Mudgul is convicted under Section 376 IPC and sentenced to rigorous imprisonment for seven years and to pay a fine of Rs.25,000, in default of which he shall undergo simple imprisonment for six months. The rest of the impugned judgment remains as is., Subject to the above modification, Criminal Appeal No. 218 of 2013 filed by the accused fails and is dismissed. Criminal Appeal No. 309 of 2014 filed by the State is allowed, substituting the sentence from five years to seven years rigorous imprisonment and fine from Rs.1,000 to Rs.25,000, with simple imprisonment for six months in default. Suo‑Motu Petition No. 2 of 2015 also stands disposed., The appellant shall surrender before the learned Additional Sessions Judge, Niphad, District Nashik, to undergo the remaining sentence within four weeks from the date of uploading of this judgment. If the appellant does not surrender, a non‑bailable warrant shall be issued., This High Court had requested Advocate Mr. Ashish Satpute to espouse the cause of the appellant in Criminal Appeal No. 218 of 2013; he has assisted the court in appreciating the evidence on record.
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His professional fee quantified as per rule to be paid to him by the High Court Legal Aid Services Committee, Mumbai.
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Reserved on: 30th August 2022. Pronounced on: 21st November 2022. Through: Ms. Pooja M. Saigal, Mr. Anshul Bajaj and Mr. Simrat Singh Pasay, Advocates for the petitioner versus Through: Mr. Suhail Dutt, Senior Advocate with Mr. H. S. Parihar, Mr. Kuldeep Singh Parihar and Ms. Ikshita Parihar, Advocates for the respondents., This petition has been filed under Articles 226 and 227 of the Constitution of India seeking the following reliefs: (a) issue a writ of certiorari, or any other appropriate writ, order or direction, quashing the Enquiry Proceedings and Report against the petitioner; (b) issue a writ of certiorari, or any other appropriate writ, order or direction, quashing the order dated 30.10.2006 passed by Respondent number 3 by declaring the same as illegal and void being violative of Articles 14 and 21 of the Constitution; (c) issue a writ of certiorari, or any other appropriate writ, order or direction, quashing the order dated 6.7.2007 passed by Respondent number 2 by declaring it as illegal and void due to non‑application of mind and non‑consideration of several important grounds and thus in violation of Article 14 and 21 read with Article 301 of the Constitution., The petitioner was working as an Assistant Manager in the Reserve Bank of India (hereinafter RBI) and was posted at the Currency Verification and Processing System (hereinafter CVPS) of the Issue Department. On 31st May 2005, the petitioner was entrusted with processing and shredding of currencies worth Rs. 4,50,000. During a surprise check of the cancelled notes brought for shredding in the shredding room, it was noticed that there was a shortage of 50 pieces of Rs.100 denomination in three packets., Consequently, two alternate charges—wilful failure to perform duties towards the bank and surreptitious abstracting or pilfering of the said currency notes to derive pecuniary benefit and displaying gross negligence—were framed against the petitioner by a chargesheet dated 11th June 2005. After conducting the disciplinary inquiry, the charges against the petitioner were found to be proved and, accordingly, by order dated 30th October 2006, the petitioner was dismissed from the bank’s service and Rs.5,000 was ordered to be recovered from the petitioner. The appeal against the order dated 30th October 2006 was also dismissed by the Appellate Authority by order dated 6th July 2007. Aggrieved by the aforesaid, the instant writ petition has been filed., Learned counsel appearing on behalf of the petitioner submitted that there is no evidence to support the findings of fact arrived at by the Inquiry Officer. It is further submitted that the material evidence has been completely disregarded without assigning any reasons. The chargesheet dated 11th June 2005 charged the petitioner with an act of gross misconduct of pilferage and, in alternative, with negligence in his duties. The chargesheet is vague; the charges framed against the petitioner were ambiguous and unspecific. The chargesheet neither disclosed the material relied upon by the bank to frame the charges nor the list of witnesses to be produced by the bank to prove the charges. It is submitted that the first and foremost charge of pilfering relates to notes that were to be shredded and destroyed, which were not currency in circulation; therefore, there is no loss caused to the Reserve Bank of India and no pecuniary benefit could accrue to the petitioner., Learned counsel for the petitioner further submitted that the Inquiry Officer conducted the inquiry against the principles of natural justice. It is stated that the Inquiry Officer did not afford the petitioner ample opportunity to present his case. It is further submitted that there is no evidence, whatsoever, whether by way of CCTV recording, documentary evidence or any oral testimony, that the petitioner was seen removing notes and retaining them in his possession after walking out of the CVPS section on the fateful day of 31st May 2005. The only evidence on which the charge has been proved is a CCTV footage recording which suggests that the petitioner was folding certain notes in three packets processed in audit mode, then removed them from the packet, dropped the notes on the table, kept the notes folded in a piece of paper and left them on a tray beside his table, where another piece of paper was already lying in the tray., It is stated that in another section of the CCTV footage, the petitioner is seen placing his hands on the register while standing at the table and, once he moved away from the table, a single sheet of paper remained in the tray, leading to the assumption that the folded paper with notes inside was kept inside the register. The petitioner can be seen with the register moving out of the coverage area of camera number 13 in the CVPS section and, when he was next seen after a gap of about 20 seconds in front of camera number 10, there was no register with him, but, according to the bank’s witness, a folded piece of paper was in his hand. It is submitted that this is the only evidence against the petitioner on the basis of which it has been assumed that he pilfered or abstracted 50 notes from the packets by keeping them inside a folded piece of paper placed in a register. It is also submitted that the aforesaid CCTV recording was not supplied to the petitioner at the initiation of the inquiry., Learned counsel for the petitioner vehemently submitted that there is no CCTV footage or oral testimony affirming that the petitioner kept the notes in the register and walked out of the CVPS section with the register at the end of his shift, particularly when the bank’s witness affirms that when the petitioner is seen coming towards the CVPS section, he had the folded piece of paper in his hand. The bank’s main witness, Bank Witness 1 (Sh. Prabhat Ranjan), admitted that he was not aware of what happened to the register which the petitioner was seen carrying when he moved out of the coverage area of camera 13., Learned counsel for the petitioner submitted that without even establishing the fact that the petitioner removed the notes and walked out of the CVPS section with them, no reasonable person could have drawn the conclusion that he pilfered the notes, a charge for which he was found guilty. It is further submitted that the movement of the petitioner captured in CCTV footage of camera 10 shows the petitioner coming towards the CVPS hall at 7:57:31 hours. Camera 13 after 7:57:44 hours was shown to Bank Witness 1 for the purpose of identifying the petitioner’s movements. These movements have been recorded in the footage after 7:57:31, when, as per the respondent bank, he was seen coming towards the CVPS hall, and in these movements, as identified by the bank’s witness, the petitioner was shown again handling loose notes and the folded piece of paper was lying on the table. It is thus evident that the petitioner handled the loose notes after coming back to the CVPS section., Learned counsel for the petitioner submitted that there is no testimony in which any witness of the bank identified the petitioner’s actions on the fateful date as suspicious and that all evidence and testimony are contrary to each other. It is submitted that there is no evidence produced by the bank which suggests that the petitioner was seen to have kept notes in a folded piece of paper, and this crucial fact has been completely disregarded by the Inquiry Officer, the competent authority as well as the Appellate Authority., Learned counsel appearing on behalf of the petitioner submitted that the machines installed were malfunctioning, which was admitted by the respondents’ witnesses during the inquiry proceedings dated 14th November 2005, and that the engineers provided in the section were found sitting on the machine for longer durations only to remedy the malfunctioning, which was repaired more than thirty times during the day. It is also seen that one Rahul, an on‑site engineer, was working for more than 20 minutes on the machine while even feeding notes in the machine, which is not authorised by the bank. It is submitted that there is no record maintained in the time book at the CVPS section to record the entry and exit of people from that section, nor was there any frisking of the bags of the on‑site engineers when they exited from the CVPS section., It is submitted that the packets in which the shortage was found were not sealed. Even on 1st June 2005, when the notes were counted again in the presence of the petitioner, the packets from which the shortage was noticed were not shown to the petitioner for identification. The petitioner was only present when the recounting was done. It is vehemently submitted that during the inquiry proceedings, none of these packets or bundles were produced before the Inquiry Officer., It is further submitted that the testimony of Bank Witness 1 was not an independent version. Moreover, Bank Witness 1 declined to answer questions on pilferage and on excess notes found on 1st June 2005, an adverse inference from which ought to have been drawn but was not. It is submitted that the Competent Authority simply accepted the Inquiry Report without any independent examination. The Appellate Authority also did not give the petitioner an opportunity of hearing despite a specific request and dismissed the appeal without assigning any proper reason and without application of mind. Therefore, it is submitted that the petitioner was denied a fair opportunity and a fair hearing to defend his case., Learned counsel for the petitioner submitted that the inquiry was conducted with a mala fide intention and with the sole aim to convict the petitioner on Charge 1 since all three persons who were charged with the offence arising out of the same transaction, a joint inquiry in terms of Regulation 47 was not carried out. It is submitted that Mr. V. K. Jain, the other Assistant Manager charged along with the petitioner, was found only negligent and not even grossly negligent and was punished by denial of the last four increments in his pay for the same charges of pilferage. There being no proof of any pilferage and nobody having seen the petitioner walking away with the notes, since the CCTV footage shows the petitioner walking out of the CVPS section empty‑handed, the finding of wilful abstracting or pilfering notes for pecuniary benefit is not proved and the punishment of dismissal imposed is not based on any evidence. The impugned order is improper, illegal and without application of mind. It is thus submitted that there is no evidence to prove the charges levelled by the respondent., While buttressing the arguments, reliance has also been placed upon several judgments of the Honorable Supreme Court in Union of India v. H. C. Goel, AIR 1964 SC 364; Roop Singh Negi v. Punjab National Bank and Others (2009) 2 SCC 570; State Bank of Bikaner and Jaipur v. Nemo Chand Nalwaya (2011) 4 SCC 584; Deputy General Manager (Appellate Authority) and Others v. Ajay Kumar Srivastava (2021) 2 SCC 612; and United Bank of India v. Biswanath Bhattacharjee decided on 31st January 2022., Learned counsel for the petitioner submitted that in view of the foregoing discussion and the law laid down, the impugned order is liable to be set aside and the instant petition may be allowed., Learned senior counsel appearing on behalf of the respondent submitted that by filing the instant writ petition, the petitioner seeks interference of the High Court for re‑appreciation of evidence, interference with the conclusions in the inquiry, adequacy and reliability of evidence and the alleged error of facts which, as per well‑settled principles of law, is impermissible under Articles 226/227 of the Constitution of India., In support of the arguments, he relied upon the judgment of the Honorable Supreme Court in Union of India v. P. Gunasekaran (2015) 2 SCC 610, wherein it is held that the High Court is not constituted in a proceeding under Article 226 as a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed, and whether the rules of natural justice are not violated. Where there is some evidence accepted by the authority that may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and arrive at an independent finding. The High Court may interfere where the departmental authorities have held the proceedings in a manner inconsistent with the rules of natural justice or in violation of statutory rules, or where the conclusion is so wholly arbitrary and capricious that no reasonable person could have arrived at it. The departmental authorities, if the enquiry is otherwise properly held, are the sole judges of fact, and the adequacy or reliability of that evidence is not a matter that can be canvassed before the High Court in a writ proceeding., Learned senior counsel for the respondent bank submitted that in the present case, among other cogent evidence, there is clear CCTV footage showing the petitioner taking out some notes from packets, wrapping them in a piece of paper, putting the notes in a register and taking that register out with him. Upon return, the said register was not with the petitioner. Moreover, the petitioner’s contention that he handed over the folded paper and loose notes to Shri Muni Ram, Assistant Treasurer, through Mr. V. K. Jain is untenable, since neither Shri Muni Ram was produced as a witness during the inquiry nor is it supported by the CCTV recording produced during the inquiry., It is further submitted that there is no force in the allegation that the petitioner was not provided documents and the CCTV recording relied upon by the disciplinary authority at the time of initiation of the inquiry, and that the Presenting Officer himself recorded the statement of the witness. It is submitted that, as far as providing documents and CCTV recording is concerned, it is not the case of the petitioner that they were not provided. The record of the case shows that these documents were duly provided to the petitioner at the time when evidence of the management was being recorded. The petitioner had ample opportunity to cross‑examine the witness and counter the documents by bringing his own witness. It is submitted that the delinquent was given more than twelve opportunities/hearings to cross‑examine the witness and therefore there is no infraction of the principles of natural justice., Learned senior counsel for the respondent bank vehemently submitted that the submissions regarding alleged recording of evidence by the Presenting Officer himself are factually incorrect as Bank Witness 1 had clearly deposed in this regard. In any case, the same pertains to what is recorded in the CCTV footage which is not denied by the petitioner and hence it cannot be said that any prejudice has been caused to the petitioner in this regard. It is submitted that the petitioner has failed to make out a case of violation of principles of natural justice as it is well settled that any alleged violation of natural justice which does not cause any prejudice to the delinquent officer has no legal effect and cannot vitiate the inquiry or the punishment order passed therein., In support of his arguments, learned senior counsel relied upon the judgment in Sanjay Kumar Singh v. Union of India and Others (2011) 14 SCC 692, wherein it was held that two benches of the High Court, after looking into the records, found no violation of the principles of natural justice and that the charges were established against all the appellants and that the punishment awarded was not disproportionate to the offences alleged. After those findings were recorded by the learned Single Judge and the Division Bench, there is hardly any scope for this Court to substitute its findings and come to a different conclusion by re‑appreciating the evidence. The findings recorded by the benches of the High Court are concurrent findings and the same cannot be interfered with lightly. In our considered opinion, to re‑appreciate the evidence and to come to a different finding would be beyond the scope of Article 136 of the Constitution of India. Therefore, we hold that the judgment and order passed by the High Court suffers from no infirmity., Learned counsel for the respondent submitted that the petitioner alleged that the procedure for conducting the surprise check was not properly followed and the packet containing the discrepancy was not preserved and sealed. It has further been contended that they were also not shown to the officer for his satisfaction that they contained shortage. A bare perusal of the record of the inquiry proceedings shows that due process was followed. Bank Witness 3 clearly deposed on 16th November 2005 in the inquiry proceedings that, in the evening of the same day, the entire lot of notes was put under triple lock in the presence of the Regional Director, Chief General Manager, General Manager (Issue Department), Treasurer and the Manager (CVPS). Therefore, there is no force in the petitioner’s contention that he was not shown the concerned packet. In fact, the petitioner was fully associated with the work of detailed manual recounting on 1st June 2005 of all the process notes of 31st May 2005 as shown in management Exhibit 23., Learned senior counsel for the respondent further submitted that the petitioner alleged that the inquiry of both officers involved in the misconduct, i.e., the petitioner and Shri V. K. Jain, were conducted separately in contravention of Regulation 47 of the Reserve Bank of India (Staff) Regulations 1948. It is submitted that Regulation 47 does not provide that inquiries are to be mandatorily conducted jointly or that approval or sanction of any higher authority is required for conducting inquiries separately., Learned senior counsel for the respondent submitted that the petitioner has also raised an objection that the charges levelled against him are vague. The charge proved against the petitioner specifically states that he has been charged for not serving the bank diligently by wilfully and surreptitiously abstracting or pilfering 50 pieces of Rs.100 denomination notes to derive pecuniary benefit thereby committing a breach of Regulation 34 read with Regulation 47(1) of the Reserve Bank of India (Staff) Regulations 1948. It is submitted that the charges are absolutely clear and there is no vagueness as alleged by the petitioner., It is submitted that it is a well‑settled principle of law that employees of a bank hold positions of trust and utmost integrity and, in cases where public money is involved, strict punishment is to be given. It is not only the amount involved but also the mental set‑up, the type of duty performed and similar relevant circumstances which go into the decision‑making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. The petitioner, being an officer in Class I Cadre, is expected to be absolutely honest and the charges proved against him amount to serious misconduct which cannot be tolerated and do not warrant any leniency. It is submitted that misconduct in such cases has to be dealt with iron hands. Therefore, where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable., In support of his arguments, learned senior counsel for the respondent bank has relied upon judgments passed by the Honorable Supreme Court in State Bank of India and Others.
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Versus S.N. Goyal (2008) 8 Supreme Court Cases 92 and Regional Manager, Uttar Pradesh State Road Transport Corporation, Etawah and Others versus Hoti Lal & Another (2003) 27. In view of the above discussions, learned senior counsel for the respondent vehemently submitted that the petitioner has failed to make out any case for interference of this Court in the instant writ petition. There is no illegality or error in the disciplinary proceedings as well as the order of the competent authority and the Appellate Authority. Hence, the instant petition is devoid of any merit and is liable to be dismissed., The show cause notice dated 2 June 2005 was issued by the General Manager (Banking), Competent Authority of the respondent Bank to the petitioner and asked to reply within three days as to why disciplinary proceedings should not be initiated against him. He was suspended from service on 4 June 2005. He replied to the show cause notice on 6 June 2005. The charge sheet was issued to the petitioner on 11 June 2005 to which the petitioner gave a reply dated 17 June 2005. Thereafter, the respondent instituted a domestic inquiry by their letter dated 24 June 2005 and appointed Mr. M. K. Mali, Deputy General Manager, Exchange Control Department as Inquiry Officer., The main argument of the petitioner is that the present case is a case of no evidence, and that the petitioner was held guilty by the Inquiry Officer without following due process of law. It has further been submitted that the Inquiry Officer has not taken into consideration the material evidence which negates the charges levelled against him and rather relied upon only those pieces of evidence against the petitioner which were actually no evidence to prove the charges levelled against the petitioner. During the course of arguments, the petitioner alleged the mala fide intention of the department to intentionally hold the petitioner guilty in the misconduct alleged against the petitioner. It was also argued by the petitioner that there is violation of Regulation 34 read with Regulation 47(1) of the Rules of 1948 as two officers who were working together on the same day were charged separately and proceedings have also been initiated against both the employees, i.e., the petitioner as well as one Mr. V. K. Jain. It is also argued that while dismissing the appeal, the Appellate Authority has not taken into consideration whatever was stated or contended by the petitioner in appeal and without application of mind, the said appeal was rejected., On the contrary, the respondent has argued that there is sufficient material on record against the petitioner to hold him guilty for the offences as per the charge sheet dated 11 June 2005. It is also argued that there is no procedural lapse in conducting the inquiry and there was no violation of principles of natural justice as well as it is also vehemently argued that despite giving opportunities to the petitioner, he failed to cross‑examine the witnesses. It is stated that the Inquiry Officer, after conducting the inquiry in a fair manner, reached the conclusion that the petitioner is guilty for the misconduct as alleged. The competent authority has accepted the report of the Inquiry Officer, after considering the entire material on record and findings of the Inquiry Officer. The Appellate Authority also did not find any error or illegality in the decision taken by the competent authority as well as in the report submitted by the Inquiry Officer. Learned senior counsel for the respondent has submitted that there is no force in the argument of the petitioner that the instant case is a case of no evidence., In the instant case, the following charges were levied against the petitioner: (i) not serving the Bank diligently by wilfully and surreptitiously abstracting/pilfering fifty pieces of Rs. 100 denomination notes to derive pecuniary benefit therefrom, thereby committing a breach of Regulation 34 read with Regulation 47(1) of the Reserve Bank of India (Staff) Regulations, 1948; (ii) having displayed gross negligence in the discharge of his duties leading to the shortage/pilferage of fifty pieces of Rs. 100 denomination notes worth Rs. 5,000, thereby acting in a manner detrimental to the interests of the Bank., As per the foregoing discussions, the questions that arise for consideration in the present petition are as follows: (i) firstly, whether the entire disciplinary proceedings against the petitioner is based on no evidence; (ii) secondly, whether the High Court in dealing with the writ petition filed by the Government employee, who has been dismissed from service, is entitled to hold that the conclusion reached by the competent authority regarding misconduct of the petitioner is not supported by any evidence at all; (iii) thirdly, whether the High Court in dealing with the writ petition filed by the Government employee can re‑appreciate the evidence and other material available on record for the purpose of reaching a conclusion which is contrary to that of the Disciplinary Authority and the Appellate Authority., For proper adjudication of the instant matter, it is deemed appropriate to record certain documents as well as evidence available on record., The disciplinary authority, by way of adjudicating the two charges stated above, has taken on record the CCTV footage and also recorded the statements of the witnesses. The documents which have been relied upon by the Inquiry Officer had been duly served to the petitioner. The petitioner was given opportunity for cross‑examination of the concerned witness who proved/verified the documents on record but he chose not to cross‑examine the said witness. The petitioner had also not produced his own witness for deposition in his favour. The Inquiry Officer had given at least twelve opportunities to the petitioner for cross‑examining the witnesses., The Inquiry Officer gave a detailed report on 30 October 2006 of the inquiry proceedings which have been initiated against the petitioner. The Inquiry Officer issued a Show Cause notice to the petitioner on 12 April 2006 and the petitioner submitted his reply to the said Show Cause notice on 19 April 2006. The relevant portion of the inquiry report is reproduced herein below: 2. I have carefully gone through the entire case papers and the written representation dated 7 May 2006 received from the Charge‑sheeted Officer. I have carefully examined the submissions put forth by the Charge‑sheeted Officer in his representation. The Charge‑sheeted Officer in his representation has stated that he had handed over the folded paper and loose notes to Shri Muni Ram, Assistant Treasurer (although written as Muni Lal by the Charge‑sheeted Officer) for consolidation through Shri V. K. Jain. He has further stated that the handling of loose notes was a part of functioning of the process of CVPS and at no stage were loose notes removed or taken out by him. Thus the theory of folding of notes/removal of notes from the packets for the purpose of taking them out of CVPS is only a myth and not the fact. The Charge‑sheeted Officer has also repeated the contention of asking leading questions by the Presenting Officer during the oral enquiry. The Charge‑sheeted Officer has produced some extracts of the oral enquiry in his representation. In addition to the above contentions, the Charge‑sheeted Officer has raised a number of other contentions. I find the contentions raised by the Charge‑sheeted Officer in his representation are similar to those which he had raised in his representation against the Enquiry Officer’s report and the same have already been dealt with by me in my findings. As regards the Charge‑sheeted Officer’s claim that he had handed over the folded paper and loose notes to Shri Muni Ram, I find that the CCTV recording produced during the oral enquiry did not show the Charge‑sheeted Officer handing over the aforesaid folded paper containing loose notes to Shri V. K. Jain. The Charge‑sheeted Officer’s contention of handing over the notes purported to be run in Audit Mode in the morning to Shri Muni Ram through Shri V. K. Jain and that too at the end of the day, appears to be unbelievable. Further, Shri Muni Ram was not produced as witness during the oral enquiry by the defence to corroborate this point. It is pertinent to note that as per CCTV recording the folded paper containing the notes taken out from the packets processed in Audit Mode was kept by the Charge‑sheeted Officer in a register and this register was picked up by him. He went out of the CCTV coverage (Camera No. 13) for a few seconds and when he appeared under CCTV coverage of another Camera (No. 10) the register was not seen in his hands. Therefore, the Charge‑sheeted Officer’s contention of handing over the notes to Shri Muni Ram is not legible. Regarding the contention made by the Charge‑sheeted Officer that leading questions were asked by the Presenting Officer, I find from the record of oral enquiry that the Presenting Officer was only explaining the recording of CCTV which was produced by him during the oral enquiry and the Charge‑sheeted Officer is challenging the submissions of the Presenting Officer on technical grounds. Further, the Enquiry Officer had also given his ruling, wherever required, during the oral enquiry. Here, I would also like to clarify that the standard of proof required during the domestic enquiry is different from that of criminal proceedings. I therefore observe that the contentions raised by the Charge‑sheeted Officer in his representation against the show‑cause notice are untenable and do not warrant reconsideration of my findings. As regards the quantum of proposed penalty, I have once again given serious thought to it. In view of the seriousness of charges proved against the Charge‑sheeted Officer I am not inclined to take a lenient view in the matter. Thus, I am of the opinion that such misconduct calls for severe punishment against the Charge‑sheeted Officer so that the same should also act as a deterrent for the other employees/officers of the Bank intending to commit such misconduct. I, therefore, confirm the proposed penalty and order that: (i) In terms of Regulation 47(1)(e) of the Reserve Bank of India (Staff) Regulations, 1948, Shri Vijak Kumar Gupta III, Assistant Manager (under suspension) (PF Index No. DG0158) be dismissed from the Bank’s service with effect from the close of business on 30 October 2006; (ii) In terms of Regulation 47(1)(d) of the Reserve Bank of India (Staff) Regulations, 1948, an amount of Rs. 5,000.00 (Rupees Five Thousand only) being the pecuniary loss caused to the Bank be recovered from the Charge‑sheeted Officer., Deposition of Witness 1 (BW‑1) is reproduced below for reference: The petitioner asked who was working on the CVPS machine No.1 on 31 May 2005 and who was handling the notes processed in audit mode. BW‑1 stated that records of who was doing what work at a given point of time were maintained in the CVPS section. On the said date on Machine No.1, Assistant Managers Shri V. K. Jain and Shri V. K. Gupta were working during audit mode processing. They were assisted by two labourers, Shri R. S. Rathi and Shri Sat Pal. When asked whether pockets processed by the machine in audit mode are banded with paper band, BW‑1 replied that normally yes, but during jams the machine may ask the operator to count the notes lying in a particular stacker and enter its numbers on the screen, or to take out a given number of notes from a particular stacker. In such cases, if the operator makes a mistake either in counting or in entering the number, the concerned packets may not contain 100 pieces and will be less or more depending upon the figures entered. BW‑1 confirmed that jams are part of machine operation but could not recall any specific jam on the given date. He explained that jams are routine and may occur up to fifty times a day; they need not be reported to the CVPS in‑charge unless they adversely affect output. When a jam affects output significantly, it is brought to the notice of the CVPS in‑charge, who may supervise the clearing process and involve an onsite engineer if necessary. BW‑1 stated that jams do not affect the reconciliation process and no mid‑term reconciliation is required after every jam. Details such as machine number, date, time, value of the note packet, and stacker number are printed on the paper band. BW‑1 explained that recounting of packets banded with paper band is done to ensure that there are 100 pieces of notes in the packet. If a packet is found to contain less than or more than 100 pieces, the person counting the packet informs other members of the Note Processing Team and the CVPS in‑charge, especially if the discrepancy is unusually high (more than five pieces). The person handling such packets is responsible for any discrepancy. The CVPS in‑charge advises the Note Processing Team to ascertain whether a shortage or excess in a packet is compensated by a corresponding excess or shortage in a preceding or following packet; if not, the team is advised to reconcile the processed notes at the earliest possible time. BW‑1 stated that after the note packets are examined and counted by a member of the Note Processing Team, they are bound into a bundle with the help of a bundling machine by a labourer upon instruction from a team member. If any packet in a bundle contains less than 100 pieces of notes after removal of folded notes, the bundle will not contain the required number of notes (1000 pieces). BW‑1 described various irregular activities such as removing folded notes from counted packets and re‑banding them, which he considered inexplicable and indicative of potential shortage. He also explained that the Parameter Section Balance Report pertains to the processing of Rs.100 denomination notes of ICICI Bank in CVPS Machine No.1 on 31 May 2005, detailing audit mode and normal mode processing, shortages, and reconciliation figures., It is well settled law that in a domestic inquiry the strict and sophisticated rules of evidence under the Indian Evidence Act are not applicable. Evidence which has probative value of reasonable nexus and credibility can be relied upon in support of the allegations., It is not in dispute that the charges in disciplinary proceedings are not required to be proved to the same extent as in a criminal trial, i.e., beyond reasonable doubt. The Inquiry Officer is not required to observe the strict adherence of the Indian Evidence Act but, to arrive at a conclusion, he has to consider the documents/evidence available before him on the basis of preponderance of probabilities to prove the charges., In the case of M. V. Bijlani versus Union of India (2006) 5 Supreme Court Cases 88, the Honorable Supreme Court held: It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi‑criminal in nature, there should be some evidence to prove the charge. Although the charges in departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi‑judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into allegations with which the delinquent officer had not been charged., It is settled law that this Court will not act as an Appellate Court and will not reassess the evidence already led during inquiry so as to interfere on the ground that another view is possible on the basis of material on record. After perusal of the aforesaid inquiry report as well as the statement of BW‑1 and other material on record, I do not find any force in the argument of the petitioner that there is no evidence against the petitioner with the Inquiry Officer to hold him guilty for the charges which were levied against him., The Honorable Supreme Court in the case of State Bank of Bikaner and Jaipur versus Nemi Chand Nalwaya (2011) 4 Supreme Court Cases 584 held: It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding on the material on record. The courts will, however, interfere with the findings in disciplinary matters if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations., In Union of India versus H. C. Goel, AIR 1964 Supreme Court 364, the Honorable Supreme Court held: That takes us to the merits of the respondent’s contention that the conclusion of the appellant that the third charge framed against the respondent had been proved, is based on no evidence. The learned Attorney General stressed that the appellant is acting with the determination to root out corruption, and if it is shown that the view taken by the appellant is a reasonably possible view this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. The only test which can be legitimately applied is whether there is any evidence on which a finding can be made against the respondent that Charge No. 3 was proved against him. In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? Applying this test, the Court was inclined to hold that the respondent’s grievance is well founded, because, in the Court’s opinion, the finding which is implicit is the appellant’s order dismissing the respondent that charge number 3 is proved against him is based on no evidence., In K. L. Tripathi versus State Bank of India and Others (1984) SCC (1) 43, the Honorable Supreme Court held: The basic concept is fair play in action—administrative, judicial or quasi‑judicial. The concept of fair play in action must depend upon the particular dispute, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified is in dispute, the right of cross‑examination must inevitably form part of fair play in action. But where there is no dispute regarding the facts but only an explanation of the circumstances, there is no requirement of cross‑examination to be fulfilled to justify fair play in action. When on the question of facts there was no dispute, no real prejudice has been caused to a party aggrieved by an order; the absence of any formal opportunity of cross‑examination per se does not invalidate or vitiate the decision arrived at fairly.
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This is more so when the party against whom an order has been passed does not dispute the facts and does not demand to test the veracity of the version or the credibility of the statement. In view of the discussion in the foregoing paragraphs, there is no force in the argument that the entire disciplinary proceedings against the petitioner is based on 'no evidence'. Hence, issues no. 1 and 2 are decided accordingly., ISSUE No. 3 (Scope of Writ Jurisdiction) Argument has been advanced on behalf of the petitioner that the mandatory procedure has not been followed by the disciplinary authority and by the Inquiry Officer. For adjudicating this argument, the High Court has to look into the deposition of BW-3 wherein it is stated that in the evening of the same day, the entire lot of notes was put under triple lock in the presence of RD, CGM, GM (ID), Treasurer and Manager (CVPS) and preserved in the CVPS Vault. Therefore, the contention of the petitioner that procedure has not been followed or he was not shown the concerned packet, which was kept under lock is not tenable. In fact, the petitioner was fully associated with the work of the detailed manual recounting on 1st June 2005 of all the processed notes of 31st May 2005 as shown in Management exhibit-11. Therefore, in view of the above facts and circumstances, the arguments of the petitioner in the instant writ petition that the entire disciplinary proceedings initiated by the respondent bank against the petitioner is contrary to the provisions of law cannot be entertained. It has also been contested that there was gross violation of Principles of Natural Justice due to non-supplying of documents and also not considering the material or reply submitted by the petitioner before the Inquiry Officer. However, there is nothing on record to substantiate the claim made by the petitioner. Therefore, the High Court does not find force in the said arguments of learned counsel for the petitioner., It is also settled law that there is limited scope for interference in the disciplinary proceedings by a writ Court. At the outset, it is pertinent to outline the scope of writ jurisdiction under Articles 226 and 227 of the Constitution of India while examining and adjudicating upon an impugned order., Under Article 226 of the Constitution of India, High Courts have the power to adjudicate upon an impugned order along with the power to entertain writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. While adjudicating upon an impugned order, the scope of writ jurisdiction is narrowed down to examining the contents of the order which is before the Court. Any consideration beyond assessment of the impugned order, including investigation into evidence and question of facts would amount to exceeding the jurisdiction. While examining the challenge to an impugned order, the Court has to limit itself to the consideration whether there is any illegality, irregularity, impropriety or error apparent on record., The Honourable Supreme Court of India in Union of India versus P. Gunasekaran, (2015) 2 Supreme Court Cases 610, elaborating upon the extent of exercise of writ jurisdiction, held as under: 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate the evidence; (ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based; (vi) correct the error of fact however grave it may appear to be., Further, the Honourable Supreme Court of India in Sarvepalli Ramaiah versus District Collector, Chittoor, (2019) 4 Supreme Court Cases 500, made the observations reproduced hereunder, while examining the scope of Article 226 of the Constitution of India: 41. In this case, the impugned decision, taken pursuant to orders of Court, was based on some materials. It cannot be said to be perverse, to warrant interference in exercise of the High Court's extraordinary power of judicial review. A decision is vitiated by irrationality if the decision is so outrageous, that it is in defiance of all logic; when no person acting reasonably could possibly have taken the decision, having regard to the materials on record. The decision in this case is not irrational. 42. A decision may sometimes be set aside and quashed under Article 226 on the ground of illegality. This is when there is an apparent error of law on the face of the decision, which goes to the root of the decision and/or in other words an apparent error, but for which the decision would have been otherwise. 43. Judicial review under Article 226 is directed, not against the decision, but the decision‑making process. Of course, a patent illegality and/or error apparent on the face of the decision, which goes to the root of the decision, may vitiate the decision‑making process. In this case there is no such patent illegality or apparent error. In exercise of power under Article 226, the Court does not sit in appeal over the decision impugned, nor does it adjudicate hotly disputed questions of fact., Further in Sanjay Kumar Jha versus Prakash Chandra Chaudhary, (2019) 2 Supreme Court Cases 499, the following observations were made by the Honourable Supreme Court of India: 13. It is well settled that in proceedings under Article 226 of the Constitution of India, the High Court cannot sit as a court of appeal over the findings recorded by a competent administrative authority, nor reappreciate evidence for itself to correct the error of fact, that does not go to the root of jurisdiction. The High Court does not ordinarily interfere with the findings of fact based on evidence and substitute its own findings, which the High Court has done in this case., In the case of General Manager (Operations) State Bank of India & Anr. versus R. Periyasamy, (2015) 3 Supreme Court Cases 101 the Honourable Supreme Court of India held as under: 11. It is interesting to note that the learned Single Judge went to the extent of observing that the concept of preponderance of probabilities is alien to domestic enquiries. On the contrary, it is well known that the standard of proof that must be employed in domestic enquiries is in fact that of the preponderance of probabilities. In Union of India versus Sardar Bahadur [(1972) 4 Supreme Court Cases 618 : (1972) 2 Supreme Court Reports 218] , this Court held that a disciplinary proceeding is not a criminal trial and thus, the standard of proof required is that of preponderance of probabilities and not proof beyond reasonable doubt. This view was upheld by this Court in SBI versus Ramesh Dinkar Punde [(2006) 7 Supreme Court Cases 212 : 2006 Supreme Court (Law & Society) 1573] . More recently, in SBI versus Narendra Kumar Pandey [(2013) 2 Supreme Court Cases 740 : (2013) 1 Supreme Court (Law & Society) 459] , this Court observed that a disciplinary authority is expected to prove the charges levelled against a bank officer on the preponderance of probabilities and not on proof beyond reasonable doubt. 12. Further, in Union Bank of India versus Vishwa Mohan [(1998) 4 Supreme Court Cases 310 : 1998 Supreme Court (Law & Society) 1129] , this Court was confronted with a case which was similar to the present one. The respondent therein was also a bank employee, who was unable to demonstrate to the Court how prejudice had been caused to him due to non‑supply of the inquiry authority's report/findings in his case. This Court held that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this were not to be observed, the Court held that the confidence of the public/depositors would be impaired. Thus, in that case the Court set aside the order of the High Court and upheld the dismissal of the bank employee, rejecting the ground that any prejudice had been caused to him on account of non‑furnishing of the inquiry report/findings to him. 13. While dealing with the question as to whether a person with doubtful integrity ought to be allowed to work in a government department, this Court in Commissioner of Police versus Mehar Singh [(2013) 7 Supreme Court Cases 685 : (2013) 3 Supreme Court (Criminal) 669 : (2013) 2 Supreme Court (Law & Society) 910] , held that while the standard of proof in a criminal case is proof beyond all reasonable doubt, the proof in a departmental proceeding is merely the preponderance of probabilities. The Court observed that quite often the criminal cases end in acquittal because witnesses turn hostile and therefore, such acquittals are not acquittals on merit. An acquittal based on benefit of doubt would not stand on a par with a clean acquittal on merit after a full‑fledged trial, where there is no indication of the witnesses being won over. The long‑standing view on this subject was settled by this Court in R.P. Kapur versus Union of India [All India Reporter 1964 SC 787] , whereby it was held that a departmental proceeding can proceed even though a person is acquitted when the acquittal is other than honourable. We are in agreement with this view. 17. We also find it difficult to understand the justification offered by the Division Bench that there was no failure on the part of the respondent to observe utmost devotion to duty because the case was not one of misappropriation but only of a shortage of money. The Division Bench has itself stated the main reason why its order cannot be upheld in the following words, on reappreciation of the entire material placed on record, we do not find any reason to interfere with the well considered and merited order passed by the learned Single Judge., In the case of Allahabad Bank versus Krishna Narayan Tewari, (2017) 2 Supreme Court Cases 308, the Honourable Supreme Court of India held as under: 7. We have given our anxious consideration to the submissions at the Bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty‑bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non‑application of mind by the enquiry officer or the disciplinary authority, non‑recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority., While dealing with the scope of interfering with the finding of fact recorded in departmental inquiry on the basis of the evidence available on record, similar view has been reiterated by the Honourable Supreme Court of India in the case State of Bihar versus Phulpari Kumari (2020) 2 Supreme Court Cases 130. It is held as under: 6. The criminal trial against the respondent is still pending consideration by a competent criminal court. The order of dismissal from service of the respondent was pursuant to a departmental inquiry held against her. The inquiry officer examined the evidence and concluded that the charge of demand and acceptance of illegal gratification by the respondent was proved. The learned Single Judge and the Division Bench of the High Court committed an error in reappreciating the evidence and coming to a conclusion that the evidence on record was not sufficient to point to the guilt of the respondent: 6.1. It is settled law that interference with the orders passed pursuant to a departmental inquiry can be only in case of no evidence. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental inquiry. Strict rules of evidence are to be followed by the criminal court where the guilt of the accused has to be proved beyond reasonable doubt. On the other hand, preponderance of probabilities is the test adopted in finding the delinquent guilty of the charge. 6.2. The High Court ought not to have interfered with the order of dismissal of the respondent by re‑examining the evidence and taking a view different from that of the disciplinary authority which was based on the findings of the inquiry officer., The law, as has been interpreted by the Honourable Supreme Court of India, is clear that a High Court exercising its writ jurisdiction shall not appreciate evidence and must not interfere in the order impugned unless there is a gross illegality or error apparent on the face of record. Hence, this Court will also limit itself to the question of law to see whether there is any gross illegality or error apparent on record in the same., After examining the impugned order as well as the material on record, I do not agree with the arguments/submissions made by learned counsel for the petitioner that the departmental proceeding has been proceeded and concluded contrary to the principles of Departmental Inquiry. It is clearly established that the charges were duly proven and the petitioner was rightly held guilty by the competent authority. The Appellate Authority while rejecting the appeal of the petitioner herein has passed a detailed and reasoned order after considering all the material and evidence on record before it. Hence, there is no illegality or error on the appellate order., In view of the foregoing discussion, issue no. 3 is decided accordingly., In the instant case, the petitioner is a bank employee. A bank employee/officer must perform his duty with absolute devotion, diligence, integrity and honesty, so that the confidence of the public/depositors is not lost in the bank. The banking system is the backbone of the Indian economy. An officer who is found to have been involved in financial irregularities while performing his duty as bank officer, cannot be let off even if there is a minor infraction in the inquiry report. In the departmental inquiry, the standard of proof is not that of a criminal case i.e., beyond reasonable doubt, rather the test applicable is that of merely the preponderance of probabilities., As goes the popular saying Caesar's wife must be above suspicion. It is settled law that honesty and integrity of employees/officers working in the banks who are dealing with public money must be paramount. The allegations which have been leveled against the petitioner are certainly serious in nature and this amounts to gross misconduct. Therefore, I do not find any force in the argument of the petitioner that the punishment which has been awarded to the petitioner for removal from service is not proportionate., In view of the above discussion on facts as well as law, the High Court does not find that there has been any procedural infraction or violation of Principles of Natural Justice in conducting the inquiry against the petitioner. It is also decided in the foregoing paragraphs that there is sufficient material on record to establish the guilt of the petitioner., Considering the facts and circumstances of the present case, the High Court does not find any substance in the instant petition. The petitioner has failed to establish a case warranting interference in the impugned order., Accordingly, the instant petition being devoid of merits is dismissed., Pending application, if any, also stands dismissed., The judgment be uploaded on the website forthwith.
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Naresh Goyal, age 73 years, residing at 72 Jupiter Apartments, Anstey Road, Off Altamount Road, Mumbai 400026, is a petitioner. The respondents are the Directorate of Enforcement, Mumbai Zone II, Ceejay House, Unit Nos. 301, 302, 303, 402 & 403, Dr. Annie Besant Road, Worli, Mumbai 400018; the State of Maharashtra through the Additional Public Prosecutor; and other respondents including Mr. Ravi Kadam, Senior Advocate, Mr. Karan Kadam, Mr. Ameet Naik, Mr. Abhishek Kale, Mr. Avdhoot Prabhu, Ms. Arya Bile and Mr. Vidhur Malhotra of Naik Naik & Company, appearing for the petitioner., The learned counsel for the parties appeared before the High Court of Bombay. Mr. Shreeram Shirsat, as counsel for the Enforcement Directorate, and Mr. Y. M. Nakhwa, Additional Public Prosecutor for the State, also appeared., The Court made the rule returnable forthwith in both petitions, with the consent of the parties, and ordered that the petitions be taken up for final disposal. Mr. Shirsat waived notice on behalf of the Enforcement Directorate, and the Additional Public Prosecutor waived notice on behalf of the State in both petitions., The petitioner seeks, under Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure, a writ of certiorari or any appropriate writ, order or direction directing the records of the Enforcement Directorate pertaining to the Enforcement Case Information Report (ECIR) MBZO‑II/01/2020 dated 20 February 2020 (the impugned ECIR) to be quashed and set aside, together with the investigation and all proceedings emanating therefrom, as being illegal and contrary to law., The senior counsel for the petitioner submitted that the ECIR registered by the Enforcement Directorate does not survive because there is no scheduled offence, which is a condition precedent for initiating Enforcement Directorate proceedings. The submission relied on the judgments of Harish Fabiani and Others v. Enforcement Directorate and Others, and Criminal Appeal No. 1269 of 2017 (Directorate of Enforcement v. M/s. Obulapuram Mining Company Pvt. Ltd. and others) decided on 2 December 2022., The counsel for the Enforcement Directorate did not dispute that no scheduled offence is pending against either petitioner, nor that registration of a scheduled offence is a condition precedent for initiating Enforcement Directorate proceedings. He submitted, however, that other cases may be registered against the petitioners and that the Enforcement Directorate has uncovered certain irregularities in the forensic audit accounting, making it possible to keep the ECIR alive., The facts relevant to the petitions are as follows: The petitioner in Writ Petition No. 4037 of 2022 is the husband of the petitioner in Writ Petition No. 4038 of 2022. Akbar Travels India Private Limited filed a private complaint before the Court of the Metropolitan Magistrate, Ballard Pier, Mumbai, against Jet Airways (India) Limited and its erstwhile non‑executive directors, i.e., the petitioners, alleging offences punishable under Sections 120B read with 406, 420, 467, 468, 471 and 471‑A of the Indian Penal Code. By order dated 15 February 2020, the Metropolitan Magistrate directed the Senior Police Inspector of MRA Marg Police Station, Mumbai, to register an FIR against the petitioners. Consequently, on 18 February 2020, FIR C.R. No. 66 of 2020 was registered against Jet Airways and the petitioners, alleging offences under Sections 406, 420, 465, 467, 468, 471 read with 120B of the IPC. Based on this FIR, the Enforcement Directorate registered ECIR MBZO‑II/01/2020 on 20 February 2020 under Sections 3 and 4 of the Prevention of Money Laundering Act, as the offences in the FIR were scheduled offences under the Schedule to the Act., On 9 March 2020, the police of MRA Marg Police Station filed a closure report stating that the dispute was civil in nature, relating to dues payable to Akbar Travels by Jet Airways, and that the claim had already been filed in the insolvency proceedings under the Insolvency and Bankruptcy Code, 2016. The Enforcement Directorate filed an Intervention Application and a Protest Petition on 15 June 2020 challenging the closure report. Akbar Travels also filed a separate protest petition on 16 June 2020. The Metropolitan Magistrate rejected the Enforcement Directorate’s intervention and protest petitions by order dated 19 September 2020, observing that the Directorate had no locus to intervene when the original complainant was present. The Directorate appealed this order by filing Criminal Revision Application No. 400 of 2020 in the Sessions Court, which dismissed the application by order dated 15 October 2020, again holding that the Directorate had no locus to intervene. The Directorate then filed Criminal Writ Petition (Stamp) No. 3122 of 2020 before this Court, which was dismissed on 21 December 2020, the Court holding that no provision of law supported the Directorate’s claim to intervene. A Special Leave Petition (Criminal) No. 5524 of 2021 was filed in the Supreme Court of India, which was dismissed by order dated 26 September 2022. Meanwhile, the Metropolitan Magistrate, by order dated 22 December 2020, accepted the closure report and rejected the original complainant’s complaint and protest petition. Akbar Travels challenged this order in the Sessions Court, which by order dated 6 August 2021 dismissed the criminal revision application, confirming the Magistrate’s order. The order has attained finality as it has not been further challenged., The above facts demonstrate that the closure report and the acceptance of the C Summary Report by the Metropolitan Magistrate, confirmed by the Sessions Court, have resulted in the FIR being closed. Consequently, the predicate offence on which the ECIR was based no longer exists. It is well settled, including by the Supreme Court of India in Vijay Madanlal Choudhary and Others v. Union of India and Others (2022 SCC OnLine SC 929), that an ECIR is maintainable only if a predicate offence exists. If the FIR stands closed by judicial process, the ECIR cannot survive., The Supreme Court, in State of Maharashtra v. Bhimrao Vithal Jadhav (21 September 1974), observed that granting a C Summary Report amounts to an acquittal. In Vijay Madanlal Choudhary, the Court held that a person discharged or acquitted of a scheduled offence cannot be subject to money‑laundering proceedings under the Prevention of Money Laundering Act, 2002, as the definition of proceeds of crime requires a scheduled offence that has been registered with the jurisdictional police or is pending before a competent forum. The Court further explained that any other view would amount to rewriting the statutory provisions., The Enforcement Directorate attempted to argue that the ECIR is a private internal document and not equivalent to an FIR, and therefore need not be quashed. However, the petitioner’s senior counsel produced the Apex Court’s order in the Obulapuram Mining Company case, where the Solicitor General for the Directorate acknowledged that when the underlying predicate offence is acquitted, the Directorate’s proceeding cannot survive., The ratio in Vijay Madanlal Choudhary has been reaffirmed by the Supreme Court in Parvathi Kollur and Another v. State by Directorate of Enforcement (Criminal Appeal No. 1254 of 2022, decided 16 August 2022). The Court reiterated that the offence under Section 3 of the Prevention of Money Laundering Act depends on illegal gain from a scheduled offence, and that no money‑laundering prosecution can be sustained if the scheduled offence is finally discharged, acquitted or quashed., Accordingly, as there is no scheduled offence against the petitioners, the impugned ECIR MBZO‑II/01/2020 registered by the Enforcement Directorate does not survive and is hereby quashed and set aside., The rule is made absolute in the aforesaid terms. The petitions are disposed of accordingly., All concerned are directed to act on the authenticated copy of this judgment.
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id_116
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The present appeal is directed against the impugned order dated 9 September 2016 passed by the National Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as the NCDRC) in Revision Petition No. 1104 of 2016 whereby the NCDRC, while allowing the said Revision Petition filed by Respondent No. 1 – Insurance Company, has set aside the order dated 16 December 2015 passed by the State Consumer Disputes Redressal Commission, Haryana at Panchkula and the order dated 26 February 2015 passed by the District Consumer Disputes Redressal Forum, Gurgaon., Heard Mr. Avinash Lakhanpal, learned counsel appearing on behalf of the appellant. No appearance was entered on behalf of the respondents though duly served., The precise question that falls for consideration before this Court is whether the Insurance Company could repudiate the claim in toto made by the owner of the vehicle, which was duly insured with the insurance company, in case of loss of the vehicle due to theft, merely on the ground that there was a delay in informing the company regarding the theft of the vehicle., The undisputed facts transpiring from the record are that the vehicle in question, a Tata Aiwa Truck bearing Registration No. RJ‑02‑098177, was purchased by the appellant on 31 October 2007 and was duly insured with Respondent No. 1 – Insurance Company. The vehicle was robbed by miscreants on 4 November 2007. Consequently, an FIR was registered by the appellant‑complainant on 5 November 2007 for the offence under Section 395 IPC at Police Station Nagina, District Mewat (Haryana). The police arrested the accused and filed a challan against them in the concerned Court; however, the vehicle could not be traced and therefore the police filed an untraceable report on 23 August 2008. Thereafter, the complainant lodged a claim with the Insurance Company regarding the theft. The Insurance Company failed to settle the claim within a reasonable time, and consequently the appellant‑complainant filed Consumer Complaint No. 63 of 2010 before the District Consumer Disputes Redressal Forum, Gurgaon., During the pendency of the complaint before the District Forum, Respondent No. 1 – Insurance Company repudiated the claim of the complainant by its letter dated 19 October 2010, stating inter alia that there was a breach of Condition No. 1 of the policy which mandated immediate notice to the insurer of the accidental loss or damage, and that the complainant had intimated about the loss on 11 April 2008, i.e., after the lapse of more than five months, and therefore the Insurance Company disowned its liability on the claim., The District Forum allowed the claim of the complainant, holding that the complainant was entitled to the insured amount on a non‑standard basis, i.e., Rs 12,79,399 as 75 % of the IDV of Rs 17,05,865, with interest at 6 % per annum from the date of filing of the complaint till realization from the Insurance Company. The Forum also awarded compensation of Rs 10,000 and litigation expenses of Rs 5,000 to the complainant. The aggrieved Insurance Company preferred Appeal No. 612 of 2015 before the State Consumer Disputes Redressal Commission, Haryana, Panchkula. The complainant also preferred Appeal No. 537 of 2015 seeking enhancement of compensation. The State Commission dismissed the appeal filed by the Insurance Company and partly allowed the appeal filed by the complainant by increasing the rate of interest awarded by the District Forum from 6 % to 9 % vide the Judgment and Order dated 16 December 2015. The aggrieved Insurance Company then preferred the Revision Petition before the NCDRC, which was allowed as stated above., Since Respondent No. 1 – Insurance Company has repudiated the claim of the complainant on the ground that the complainant had committed a breach of Condition No. 1 of the Insurance Contract, it is beneficial to reproduce the said condition, which reads as follows: 'Notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage in the event of any claim and thereafter the insured shall give all such information and assistance as the company shall require. Every letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately when the insured shall have knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy. In case of a major loss, theft or criminal act which may be the subject of a claim under this policy the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender.', At the outset, it may be noted that there is a conflict of decisions of the Bench of two Judges of this Court in the case of Om Prakash v. Reliance General Insurance & Another and in the case of Oriental Insurance Company Limited v. Parvesh Chander Chadha on the question whether a delay in informing the Insurance Company about the occurrence of theft, although the FIR was registered immediately, would disentitle the claimant of the insurance claim. The matter was referred to a three‑Judge Bench. The three‑Judge Bench in Gurshinder Singh v. Shriram General Insurance Company Ltd. & Another reported in 2020 (11) SCC 612, in a similar case, interpreted Condition No. 1 of the Insurance Contract and observed as under:, We are of the view that much would depend upon the words 'cooperate' and 'immediate' in Condition 1 of the standard form for commercial vehicles package policy. Before we analyse this case further, we need to observe the rules of interpretation applicable to a contract of insurance. Generally, an insurance contract is governed by the rules of interpretation applicable to general contracts. However, due to the specialised nature of insurance contracts, certain rules are tailored to suit insurance contracts. Under English law, the development of insurance jurisprudence is given credence to Lord Mansfield, who developed the law from its infancy. Without going much into the development of the interpretation rules, we may allude to Neuberger, J. in Arnold v. Britton, which is simplified as follows: (1) Reliance placed in some cases on commercial common sense and surrounding circumstances was not to be invoked to undervalue the importance of the language of the provision which is to be construed. (2) The less clear the words used were, the more ready the court could properly be to depart from their natural meaning, but that did not justify departing from the natural meaning. (3) Commercial common sense was not to be invoked retrospectively, so that the mere fact that a contractual arrangement has worked out badly, or even disastrously, for one of the parties was not a reason for departing from the natural language. (4) A court should be very slow to reject the natural meaning of a provision as correct simply because it appeared to be a very imprudent term for one of the parties to have agreed. (5) When interpreting a contractual provision, the court could only take into account facts or circumstances which existed at the time that the contract was made and which were known or reasonably available to both parties. (6) If an event subsequently occurred which was plainly not intended or contemplated by the parties, if it was clear what the parties would have intended, the court would give effect to that intention., A perusal of the aforesaid shows that this contract is to be interpreted according to the context involved in the contract. The contract we are interpreting is a commercial vehicle package policy. There is no gainsaying that in a contract the bargaining power is usually at equal footing. In this regard, the joint intention of the parties is taken into consideration for interpretation of a contract. However, in most standard form contracts that is not so. In such circumstances the court would consider the application of the rule of contra proferentem when ambiguity exists and prefer an interpretation that favours the party with lesser bargaining power., It is argued on behalf of the respondents, and rightly so, that the insurance policy is a contract between the insurer and the insured and the parties would be strictly bound by the terms and conditions as provided in the contract., In our view, applying the aforesaid principles, Condition 1 of the standard form for commercial vehicles package policy will have to be divided into two parts. The first part provides that notice shall be given in writing to the company immediately upon the occurrence of any accidental loss or damage, and thereafter the insured shall give all such information and assistance as the company shall require. It further provides that every letter, claim, writ, summons and/or process or copy thereof shall be forwarded to the insurance company immediately on receipt by the insured, and that a notice shall also be given in writing to the company immediately by the insured if he has knowledge of any impending prosecution, inquest or fatal inquiry in respect of any occurrence which may give rise to a claim under this policy., The wording of this part reveals that all the obligations are related to an occurrence of an accident. On occurrence of an accidental loss, the insured is required to give immediate written notice to the company so that the company can assign a surveyor to assess the damages. The requirement to forward any letter, claim, writ, summons or process immediately on receipt by the insured would arise in the event of criminal proceedings being initiated with respect to the accident. The intention is clear that the immediate action contemplated is in respect of an accident occurring to the vehicle., The second part of Condition 1 deals with theft or a criminal act other than an accident. It provides that in case of theft or criminal act which may be the subject of a claim under the policy, the insured shall give immediate notice to the police and cooperate with the company in securing the conviction of the offender. The object behind giving immediate notice to the police is that the police machinery can be set in motion and steps for recovery of the vehicle expedited. In a case of theft, the insurance company or its surveyor would have a limited role; it is the police, acting on the FIR of the insured, who are required to take immediate steps for tracing and recovering the vehicle., It is further to be noted that, if after the registration of an FIR the police successfully recover the vehicle and return it to the insured, there would be no occasion to lodge a claim for compensation under the policy. Only when the police are unable to trace and recover the vehicle and the final report is lodged stating that the vehicle is not traced would the insured be in a position to lodge a claim for compensation., The term 'cooperate' as used under the contract needs to be assessed in the facts and circumstances. While assessing the duty to cooperate for the insured, the court should have regard to those breaches by the insured which are prejudicial to the insurance company. Usually, mere delay in informing the theft to the insurer, when the same was already informed to the law enforcement authorities, cannot amount to a breach of the duty to cooperate of the insured., We therefore hold that when an insured has lodged the FIR immediately after the theft of a vehicle, and when the police after investigation have lodged a final report stating that the vehicle was not traced, and when the surveyors/investigators appointed by the insurance company have found the claim of theft to be genuine, then mere delay in intimating the insurance company about the occurrence of the theft cannot be a ground to deny the claim of the insured., In the opinion of the Court, the aforesaid ratio of the judgment clinches the issue involved in the case at hand. In the instant case also, the FIR was lodged immediately on the next day of the occurrence of theft. The accused were arrested and charge‑sheeted, however, the vehicle could not be traced. Although there was a delay of about five months on the part of the complainant in informing and lodging its claim before the Insurance Company, it is pertinent to note that the Insurance Company has not repudiated the claim on the ground that it was not genuine; it repudiated only on the ground of delay. When the complainant had lodged the FIR immediately after the theft, and the police had arrested the accused and filed a challan before the concerned Court, and the claim of the insured was found to be genuine, the Insurance Company could not have repudiated the claim merely on the ground of delay in intimating the Insurance Company about the occurrence of the theft., In that view of the matter, the Court is of the opinion that the National Consumer Disputes Redressal Commission should not have set aside the orders of the District Forum and the State Commission by holding that the repudiation of the insurance claim by the insurance company was justified. The impugned order, being erroneous and against the settled position of law, deserves to be set aside and is set aside accordingly., The appeal is allowed, affirming the order of the State Consumer Disputes Redressal Commission.
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id_1161
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Suo Moto Mr. Anil Joshi, Additional Advocate General. Today, the entire country is celebrating Pran Pratishtha Mahotsava of Ram Temple situated in Ayodhya. The real celebration would be if the society respects and follows the ideal and virtues which Lord Ram embodied and is worshiped as an ideal person – Maryada Puroshottam Ram., While coming to the High Court, it was noticed that the administration or some unscrupulous people have installed barricades and barriers and blocked the entire way leading towards the Jhalamand Circle and the High Court, which has resulted in a chaotic situation and complete jam on the main highway road connecting the city to the High Court, Judicial Academy, Pali and Sirohi etc., On account of such blockage, many lawyers, High Court staff and even judges found it difficult or impossible to reach the High Court on time., While fully associating with the sentiments of millions of people on the advent of Pran Pratishtha Mahotsava, the High Court is of the view that the blockage of the road, particularly the road connecting the High Court, amounts to interference in the administration of justice. It is ironic that while Lord Ram had created a bridge to approach Lanka, people have blocked the way resulting in a complete road block and impasse., A notice was issued to the Commissioner of Police and the District Collector to appraise the High Court as to whether these barriers have been installed by the administration and whether any permission was granted to do the same., Mr. Anil Joshi, learned Additional Advocate General was directed to inform the Commissioner of Police and the District Collector to remain present in the High Court forthwith, to respond to the High Court's concern and to elicit their response about the action they propose to take to remove the barriers and open the road for public use., Mr. Gaurav Agarwal, District Collector and also Mr. Ravi Dutt Gaur, Commissioner of Police appeared and informed that the persons concerned have been asked to remove the blockage, and that the Jhalamand Circle and the road in question have been opened for free flow of traffic., The District Collector and the Commissioner of Police are directed to ensure that in future the roads, particularly the road leading towards the High Court, are not blocked in the name of any julus, dharna and religious celebrations., The office is directed to register this petition as a Public Interest Litigation and place before the Hon'ble Chief Justice for listing before an appropriate bench for further direction as deemed appropriate or to dispose of the petition in light of what has been noted in paragraphs 8 and 9 above.
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id_1163
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Applicant: Kundan Yadav Opposite Party: State of Uttar Pradesh Counsel for Applicant: Vishwa Nath Pandey Counsel for Opposite Party: G.A. Hon'ble Justice Vikram D. Chauhan, J., Learned Additional Government Advocate for the State submits that instructions have been received and he has no objection in case the bail application is heard on merits. The court heard counsel for the applicant, the Additional Government Advocate for the State and perused the record., It is submitted by counsel for the applicant that the applicant has been falsely implicated. There is no independent witness of the recovery. There is no allegation of slaughter against the applicant. The procedure for seizure as provided under the Criminal Procedure Code has not been followed., It is further submitted that the applicant was not apprehended from the spot. Six cows have been recovered from one vehicle. There is no evidence linking the applicant with the alleged crime. The co‑accused, Golu alias Amarjeet, has already been released on bail by order dated 19‑05‑2023 passed by this Court in Criminal Miscellaneous Bail Application No. 18834 of 2023 and the co‑accused, Guddu Yadav, has already been released on bail by the coordinate Bench of this Court by order dated 17‑05‑2023 passed in Criminal Miscellaneous Bail Application No. 19455 of 2023. The applicant has no criminal history. The applicant has been languishing in jail since 06‑03‑2023 and, if released on bail, will not misuse the liberty of bail and will cooperate in the trial., The Additional Government Advocate for the State opposed the prayer for bail but does not dispute the factual matrix of the case. It is submitted that the Uttar Pradesh Prevention of Cow Slaughter Act, 1956 is enacted to prohibit and prevent the slaughter of cow and its progeny in Uttar Pradesh. The applicant has been found to have committed an offence under the aforesaid act., The Additional Government Advocate for the State has not shown that the applicant has been previously convicted under the provisions of the Uttar Pradesh Prevention of Cow Slaughter Act, 1956., No material has been shown by the Additional Government Advocate for the State to demonstrate that the applicant has slaughtered or caused to be slaughtered or offered or caused to be offered for slaughter a cow, bull or bullock in any place in Uttar Pradesh. The alleged act cannot be said to fall within the ambit of section 2(d) of the Uttar Pradesh Prevention of Cow Slaughter Act, 1956. There is no independent witness of the recovery. Mere possession of a live cow or bullock by itself cannot amount to committing, abetting or attempting an offence under the Act. The maximum sentence imposed by section 3 read with section 8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1956 is ten years., Mere transportation of the cow from one place to another within Uttar Pradesh would not come within the ambit of Section 5 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1956. Mere transport of a cow within Uttar Pradesh would not amount to committing, abetting or attempting to commit an offence under the Act. There is no independent witness of the said recovery. No fact, circumstance or material has been shown by the Additional Government Advocate for the State to demonstrate that transport or offer for transport or cause to be transported of any cow, bull or bullock is from any place within the State to any place outside the State. The maximum sentence imposed by section 5A read with section 8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1956 is ten years., No material or circumstance has been shown by the Additional Government Advocate for the State to demonstrate that any physical injury to any cow or its progeny so as to endanger its life, such as mutilation or deprivation of food or water, was caused by the applicant. There is no witness to substantiate that the applicant caused any physical injury to any cow or its progeny. No report of a competent authority has been placed to show any physical injury was caused to the body of a cow or bullock. There is no independent witness of the alleged recovery. The maximum sentence imposed by section 5B of the Uttar Pradesh Prevention of Cow Slaughter Act, 1956 is seven years., In view of the above, prima facie the applicant is not guilty under the provisions of the Uttar Pradesh Prevention of Cow Slaughter Act, 1956., The Additional Government Advocate for the State has not brought any fact or circumstance to indicate a criminal history or antecedents of the applicant which would disqualify the applicant for bail., It is not the case of the State that the applicant has not cooperated in the investigation or proceedings before the trial court., The principle that bail is a rule and jail is an exception has been well recognised by the Apex Court, more specifically on the touchstone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil v. Central Bureau of Investigation and another, 2022 (10) SCC 51. The Additional Government Advocate for the State has not shown any exceptional circumstances which would warrant denial of bail to the applicant., No material, facts or circumstances have been shown by the Additional Government Advocate for the State that the accused may tamper with evidence or witnesses, or that the accused is of such character that his mere presence at large would intimidate witnesses or that the accused will use his liberty to subvert justice or tamper with evidence., It is a settled principle of law that the object of bail is to secure the attendance of the accused at trial. No material particulars or circumstances suggestive of the applicant fleeing from justice, thwarting the course of justice, repeating offences or intimidating witnesses have been shown by the Additional Government Advocate for the State., The Additional Government Advocate for the State has not shown any material or circumstance that the accused/applicant is not entitled to bail in the larger interests of the public or the State., Considering the facts and circumstances of the case, the nature of the offence, the evidence, the complicity of the accused, and the submissions of counsel for the parties, and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed., Let the applicant Kundan Yadav, involved in Case Crime No. 29 of 2023, under Sections 3, 5A, 5B and 8 of the Uttar Pradesh Prevention of Cow Slaughter Act, 1964 and Section 11 of the Prevention of Animal Cruelty Act, 1960, Police Station Pataherwa, District Kushinagar, be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned, subject to the following conditions: (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not pressurise or intimidate the prosecution witness. (iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted, and shall make himself available for interrogation by a police officer as and when required. (iv) The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. (v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence. (vi) The applicant shall not leave India without the prior permission of the Court. (vii) In the event the applicant changes residential address, the applicant shall inform the court concerned about the new residential address in writing., In case of breach of any of the above conditions, the prosecution shall be at liberty to move a bail cancellation application before this Court.
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id_1164
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Arising out of Police Station Case No. 57 of the year 2015, Thana Jhajha, District Jamui, the appellant is Islam Mian, also known as Md. Islam, son of late Liyakat Mian, resident of village Narganjo, Police Station Jhajha, District Jamui. The appellant is the convicted accused. The respondent is the State of Bihar. Appearance for the appellant: Mr. Diwakar Upadhyaya, Advocate. Appearance for the State: Mr. Bipin Kumar, Additional Public Prosecutor. Date of hearing: 22-06-2022. By this appeal, the appellant challenges the judgment and order dated 09-03-2017 passed by the learned Additional Sessions Judge‑I, Jamui, in Sessions Case No. 233 of 2015, which convicted him of offences punishable under Sections 376, 323, 452 and 506 of the Indian Penal Code and under Sections 3(1)(xi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act., For the offence under Section 376 of the Indian Penal Code, the appellant is sentenced to rigorous imprisonment for ten years and a fine of Rupees ten thousand, with a default sentence of six months. For the offence under Section 323 of the Indian Penal Code, he is sentenced to rigorous imprisonment for one year. For the offence under Section 452 of the Indian Penal Code, he is sentenced to rigorous imprisonment for two years, and for the offence under Section 506 of the Indian Penal Code, he is sentenced to rigorous imprisonment for two years. For each count under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, he is sentenced to rigorous imprisonment for one year., The prosecutrix is a woman residing in village Narganjo, District Jamui. The incident allegedly took place on 09-04-2015. In the morning of that day, the prosecutrix (Petitioner Witness 4) went to the accused’s brick kiln for labour work. At the end of the day she demanded her wages, but the accused told her that he would pay later. In the evening, while the prosecutrix was cooking, the accused came to her house, dragged her into a room, closed the door and committed rape. The prosecutrix shouted, villagers gathered, and the accused was taken in custody by them and tied to a tree. Subsequently, the accused’s relatives freed him and took him away. The prosecutrix lodged a report on the next day, 10-04-2015, with the Mahila Police Station, resulting in registration of Crime No. 57 of 2015 against the accused., The routine investigation followed and ultimately the accused was charge‑sheeted., The learned trial court framed and explained the charge to the accused. He pleaded not guilty and claimed trial., In order to establish guilt, the prosecution examined seven witnesses. Petitioner Witness 1 Munni Marandi and Petitioner Witness 2 Pramila Hembram turned hostile. Petitioner Witness 3 Karu Prasad, the father‑in‑law of the prosecutrix, was examined as Petitioner Witness 4. Petitioner Witness 5 Dr. Veena Singh examined the prosecutrix. Petitioner Witness 6 Raj Ranjani Kumari is the investigating officer, and Petitioner Witness 7 Devraj, the Judicial Magistrate, recorded the statement of the prosecutrix under Section 164 of the Code of Criminal Procedure., The defence of the accused was a total denial., Upon hearing the parties, the learned trial court convicted the accused and sentenced him as indicated in the opening paragraphs of the judgment., The counsel for the appellant argued that even if the prosecution case is accepted, the incident amounts to consensual sex between two adults. He contended that the medical officer’s evidence does not support the prosecution, there were no injuries on the prosecutrix, and there was no evidence that the prosecutrix offered resistance to the accused., The court considered the submissions and perused the records and proceedings., This is a case of rape and, when the prosecutrix’s version is found reliable and trustworthy, it is not necessary for it to be corroborated by medical evidence in order to act upon it., The prosecutrix, examined as Petitioner Witness 4, stated that at about 08:00 p.m. on the day of the incident, while she was cooking, the accused came to her house and asked her son about her whereabouts. The accused then entered the house, took her into a room, bolted the door, thrust her on the ground and committed rape by pressing his mouth against hers. She further deposed that she raised a hue and cry, villagers apprehended the accused, tied him to a tree, and later his relatives released him., In cross‑examination, the prosecutrix disclosed that her son is about four years old and her husband was residing in another town for livelihood. She also stated that she had shown the spot of the incident to the police. No other material was elicited that could create doubt about her version., Petitioner Witness 5 Dr. Veena Singh examined the prosecutrix after the incident and found no external injuries. She was unable to give a definite opinion regarding the commission of rape., The prosecutrix is a married woman with a four‑year‑old son. She was overpowered by an adult male in her own house at night. In such a situation, it may not be possible for her to offer resistance, and lack of resistance does not amount to consent. Section 375 of the Indian Penal Code requires an unequivocal voluntary agreement as consent, and its proviso clarifies that physical non‑resistance cannot be interpreted as consent. Moreover, the prosecutrix’s evidence shows that the accused was apprehended by villagers at the spot of the incident., Petitioner Witness 3 Karu Prasad, the father‑in‑law of the prosecutrix, testified that the prosecutrix was shouting, the accused was apprehended at the spot and tied to a tree, and subsequently his relatives came and took him away. He claimed to have personally seen the incident., Petitioner Witness 6 Raj Ranjani Kumari, the investigating officer, proved the First Information Report lodged by the prosecutrix., Petitioner Witness 7 Devraj, the Judicial Magistrate, proved the statement of the prosecutrix recorded by him under Section 164 of the Code of Criminal Procedure., The version of the prosecutrix regarding the commission of rape is corroborated by the testimony of her father‑in‑law and by her statement to the magistrate. Her promptly lodged First Information Report further supports her account. There is no evidence on record to suggest consensual sex between two adults. Accordingly, by entering the prosecutrix’s house, the accused committed rape., It is held on the basis of the evidence that the prosecution has proved the commission of offences punishable under Sections 376 and 452 of the Indian Penal Code. However, there is no evidence to support the offences punishable under Sections 323 and 506 of the Indian Penal Code, nor under Sections 3(1)(xi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Accordingly, the appeal is partly allowed. The conviction and sentence for the offences under Sections 376 and 452 of the Indian Penal Code are maintained, while the appellant is acquitted of the offences under Sections 323 and 506 of the Indian Penal Code and under Sections 3(1)(xi) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
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id_1167
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Mr. Santosh Kumar Tripathi, Assistant Solicitor, Government of National Capital Territory of Delhi with Mr. Aditya P. Khanna, Advocate. The matter has been placed before the Full Bench by Hon'ble the Chief Justice in the light of the order dated 19.04.2021, passed by the Division Bench in the present Writ Petition., The order dated 19.04.2021 reads as follows: In view of the alarming resurgence of Covid-19, the functioning of this Delhi High Court is restricted only to extremely urgent matters vide Office Order No.1/R/RG/DHC/2021 dated 18.04.2021 with effect from 19.04.2021., The said Office Order reads as follows: In continuation of this Delhi High Court's Office Order No.223/RG/DHC/2021 dated 8.4.2021, keeping in view the alarming rise in the Covid-19 cases in the National Capital Territory of Delhi, it has been ordered that all the Hon'ble Benches of this Delhi High Court shall, with effect from 19.04.2021, take up extremely urgent matters filed in the year 2021 only. It has been further ordered that the other pending routine / non‑urgent matters and the matters filed/listed before this Delhi High Court between 22.3.2020 and 31.12.2020 shall not be taken up by this Delhi High Court and such matters shall be adjourned en bloc as per the dates already notified. In case of any extreme urgency, the request in the pending matters may be made on the already notified designated link., The Government of National Capital Territory of Delhi has imposed a curfew vide order passed today w.e.f 10:00 p.m., of 19.04.2021, whereunder strong measures have been enforced to prevent the spread of Covid-19 up to 26.04.2021. In view of the curfew imposed by the Government of National Capital Territory of Delhi, and the extremely limited functioning of Courts, the routine matters would be adjourned en‑bloc to the dates to be notified. Consequently, the advocates and the litigants would not be in a position to appear in the said matters, including those where stay, bail, parole have been granted by this Delhi High Court, or the Courts subordinate to this Delhi High Court on or before 19.03.2021. As a result, interim orders operating in favour of the parties would start expiring on and from 19.04.2021., Faced with a similar situation last year, Hon'ble the Chief Justice of this Delhi High Court suo motu initiated Writ Petition (Civil) No. 3037 of 2020, titled Court on its Own Motion v. State & Ors. In Re: Extension of Interim Orders, for dealing with the aforesaid crisis. The same was listed before a Full Bench headed by Hon'ble the Chief Justice. We are of the view that the situation which has now arisen requires similar response. Accordingly, we direct the registration of the present Petition as suo motu Writ Petition. The same be listed before Hon'ble the Chief Justice for constitution of an appropriate bench and for passing appropriate orders therein., Taking suo moto cognizance of the extraordinary circumstances, under Article 226 and Article 227 of the Constitution of India, it is hereby ordered that in all matters pending before this Delhi High Court and courts subordinate to this Delhi High Court, wherein such interim orders issued were subsisting as on 19.04.2021 and expired or will expire thereafter, the same shall stand automatically extended till 16.07.2021 or until further orders, except where any orders to the contrary have been passed by the Hon'ble Supreme Court of India in any particular matter, during the intervening period. Needless to clarify that in case the aforesaid extension of interim order causes any hardship of an extreme nature to a party to such proceeding, they would be at liberty to seek appropriate relief, as may be advised., This order be uploaded on the website of this Delhi High Court and be conveyed to Delhi High Court Bar Association, and all other Bar Associations of Delhi, as well as to all District Courts subordinate to this Delhi High Court. List on 16.07.2021.
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Asha wife of Rajendra Jangam, Asha daughter of Uttamrao Aglave and others Petitioner versus the Union of India and others Respondents. Mister B L Sagar Killarikar, Advocate for petitioners. Mister Bhushan B Kulkarni, Advocate for respondents 1, 2 and 6. Mister Alok M Sharma, Advocate for respondents 3 to 5. This public interest litigation is at the instance of twelve citizens of the country. The first eleven petitioners are holders of public offices and claim that their services have been utilized in the past by the Election Commission of India for conducting polls. The twelfth petitioner claims to be a person having acquaintance with rules and regulations regarding elections and has assisted all other petitioners in collecting information so as to protect the rights of a voter on election duty, as defined in rule 17 of the Conduct of Election Rules (hereafter 1961 Rules for short)., The concern expressed in the public interest litigation stems from the personal experience of the first eleven petitioners. They claim that although public officers deputed for election duty are responsible for free, fair and smooth conduct of polls, at times they stand deprived of their right to vote. Accordingly, it has been prayed that: (A) record and proceedings giving rise to the public interest litigation be called for; (B) the Election Commission of India be directed to ensure that a voter on election duty is not deprived in future of his right to vote; (C) the respondents 1 to 4 be directed to initiate action against respondent number 5 District Election Officer and other concerned subordinate officers for violating sub‑rule (4) of rule 23 of the 1961 Rules; (D) the respondents be directed to ensure that a voter on election duty is entitled to exercise his right to vote being a part and parcel of his right guaranteed by Article 19‑1(a) of the Constitution as well as count the same, irrespective of the consequences, for the purposes of the general election held in 2019 for Aurangabad parliamentary constituency., Although the petitioners refer to certain instances where postal ballots were not received by voters on election duty, Mister Killarikar, learned counsel appearing for the petitioners has conceded that in the past couple of years several corrective steps have been taken by the Election Commission of India and the situation is now vastly improved. However, it is his contention that the Election Commission ought to be directed to ensure that those who opt for voting by applying in Form 12 receive the ballot papers well in time so as to exercise his or her voting right effectively., Mister Sharma, learned counsel appearing for the respondents 3 to 5 including the Election Commission of India invites our attention to the averments made in the reply affidavit and contends that proper measures have been taken to ameliorate the grievances of voters on election duty. He has also invited our attention to rule 20 of the 1961 Rules and contended that such provisions provide adequate opportunity to the voters on election duty to exercise their rights of voting and the protection envisaged therein is sufficient to hold that there is no denial of any right., For facility of convenience, rule 20 is reproduced hereunder: 20. Intimation by voters on election duty. (1) A voter on election duty who wishes to vote by post at an election shall send an application in Form 12 to the returning officer so as to reach him at least seven days or such shorter period as the returning officer may allow before the date of poll; and if the returning officer is satisfied that the applicant is a voter on election duty, he shall issue a postal ballot paper to him. (2) Where such voter, being a polling officer, presiding officer or other public servant on election duty in the constituency of which he is an elector, wishes to vote in person at an election in a parliamentary or assembly constituency and not by post, he shall send an application in Form 12A to the returning officer so as to reach him at least four days, or such shorter period as the returning officer may allow, before the date of poll; and if the returning officer is satisfied that the applicant is such public servant and voter on election duty in the constituency, he shall (a) issue to the applicant an election duty certificate in Form 12B, (b) mark EDC against his name in the marked copy of the electoral roll to indicate that an election duty certificate has been issued to him, and (c) ensure that he is not allowed to vote at the polling station where he would otherwise have been entitled to vote., Having read Rule 20, it is clear that an option is allowed to be exercised by a voter on election duty to either vote through postal ballot or to vote by remaining present in person at an election. For the former, an application of the nature prescribed in Form 12 has to be filled in whereas for the latter, an application has to be made in Form 12A. Those who opt for casting vote in person are required to be issued a certificate in Form 12B, viz. Election Duty Certificate (hereafter EDC for short). An EDC mark has to be made in the copy of the electoral roll to indicate that an election duty certificate has been issued to the concerned voter and the EDC holder would not be allowed to vote at the polling station where he would otherwise have been entitled to vote., In view of such statutory provisions, we are of the considered opinion that the concern expressed by the petitioners in the public interest litigation would stand adequately addressed. It would be open to the first eleven petitioners, if they are once again deputed for election duty, to opt for voting either through postal ballot or by voting in person in the manner ordained by sub‑rule (2) of rule 20 of the 1961 Rules. To sound a note of caution, we wish to observe that for those public officers who opt for voting through postal ballot by sending an application in Form 12, the Election Commission of India must ensure that the address to which the postal ballot is to be dispatched is complete in the real sense of the term and nothing is left out so as to render the process infructuous. There must be a genuine attempt to rule out the element of human error on the part of the officers or staff of the Election Commission. After all, the right to vote is a vital right of every citizen of the country and if those officers who assist the Election Commission in holding peaceful polls are themselves deprived, that would indeed not be a very acceptable situation. We encourage the Election Commission to ensure, at all times, that every citizen holding a public office, but who is required to perform a public duty at a polling station, is in a position to exercise his or her right to vote., With the aforesaid observations, this public interest litigation stands disposed of. No costs.
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% Date of Decision: 23.10.2020 Through Mr. Hemant Singh, Mr. Vipul Tiwary and Ms. Shipra Alisha Philip, Advs. Versus Through Mr. Sandeep Sethi, Sr. Adv. with Ms. Malvika Trivedi, Mr. Mrinal Ojha, Mr. Harshul Singh, Mr. Debarshi Dutta and Mr. Rajat Pradhan, Advs., The aforesaid suit is filed by the plaintiff seeking a decree of permanent injunction in favour of the plaintiff and against the defendants from using the trade mark title tagline NEWSHOUR or any other such mark title tagline comprising NEWSHOUR as a part thereof amounting to infringement of the plaintiff's registered mark. A decree of permanent injunction is also sought to restrain the defendants from adopting or using the trademark titles taglines NATION WANTS TO KNOW or any other trade mark title tagline either by itself or comprising NATION WANTS TO KNOW or any derivatives or combinations thereof. Other connected reliefs Interim Application No. 7306/2017 are also sought., Interim Application No. 7306/2017 is filed by the plaintiff under Order 39 Rules 1 & 2 of the Code of Civil Procedure seeking an interim injunction to restrain the defendants from adopting and using the trademarks titles taglines NEWSHOUR and NATION WANTS TO KNOW or any other trade mark title tagline comprising NEWSHOUR as a part thereof amounting to infringement of the plaintiff's registered trade mark as well as dilution or acts of passing off., I may only note that when this matter came up for hearing on 05.07.2017, the Hon'ble High Court of Delhi noted the submission of learned senior counsel for the plaintiff that he does not wish to press for an interim order at that stage. The Hon'ble High Court of Delhi also directed that till the present suit is pending, none of the parties to the suit will report or publish any news with regard to it except reproducing the court order and the order was not to operate against third party publication or news channels or social media., The plaintiff Company is said to be the flagship Company of the Times Group carrying on print media business since 1838. The key business of the plaintiff Company is television broadcasting and its distribution services. The television division of the Times Group is under the plaintiff Company. Times Now is a news channel operated by the plaintiff having several segments of programmes. One of such programmes, launched in 2006, titled as THE NEWSHOUR pertained to discussions, panel discussions and debates on current topics. This programme THE NEWSHOUR was launched by Times Now on 31.01.2006. The title of the said programme THE NEWSHOUR is the plaintiff's registered trade mark and has been in continuous use since 2006 having been developed in various forms and derivatives including word and label marks. The mark THE NEWSHOUR has attained distinct identity to differentiate the programme amongst other programmes in the industry. The plaintiff gives the details of the registration of the trade mark THE NEWSHOUR under Classes 16, 35 and 38, the registration being dated 15.05.2014 with the user claimed since 31.01.2006. Hence, the plaintiff, being the proprietor of the trade mark THE NEWSHOUR, has a statutory right to the exclusive use thereof in India. The plaintiff has also applied for registration of the mark NEWSHOUR in Classes 9 and 41 and the same are pending registration before the Trade Mark Registry. Every month the plaintiff releases multiple advertisements for its publication through e‑mails, newspaper ads, etc. The Television Audience Measurement (TAM) and Broadcast Audience Research Council (BARC) Reports for the year 2010 suggest that the plaintiff's channel Times Now and the programmes aired on the channel have gathered maximum viewership compared to competitor channels and programmes., In order to popularise the programme THE NEWSHOUR, the plaintiff invested its resources to generate strategies, concepts, implement segments and formulate catch lines titles. During such creative efforts the catch line tagline title NATION WANTS TO KNOW was created for and on behalf of the plaintiff. This tagline was coined and developed by the then editorial and marketing team of the plaintiff as key words to be used during the discussions and debates conducted on the NEWSHOUR programme. Because of its usage primarily as a part of the programme, the tagline has acquired goodwill and distinctiveness indicative of the programme originating from the plaintiff in the eyes of the viewers. The tagline NATION WANTS TO KNOW is a coined mark and is inherently creative. Keeping in mind the goodwill and popularity generated by the tagline, the plaintiff has applied for registration of the trade mark word mark and logo of the said tagline in Classes 38 and 41 covering broadcasting and entertainment services respectively. The applications have been filed on 17.12.2016. Initially the applications were filed for registration of the mark NATION WANTS TO KNOW as proposed to be used on account of inadvertence and oversight. The plaintiff has thereafter filed an application for amendment of the word mark applications by mentioning the user date as 31.01.2006., The plaintiff is the proprietor of the trademarks titles taglines THE NEWSHOUR and THE NATION WANTS TO KNOW. The plaintiff has been using the mark title THE NEWSHOUR continuously since the launch of Times Now in 2006 and the tagline THE NATION WANTS TO KNOW has been closely associated and used with THE NEWSHOUR for several years. The plaintiff has continuously expended huge sums of money and time in creation, production, advertisement, marketing and publicity of the brand and its channel. The details of the marketing spends have been stated in the plaint., Defendants No. 1 and 3 are companies. Defendant No. 1 is the company which has filed the impugned trade mark applications that are the subject matter of the present dispute. Defendant No. 2 is said to be the Managing Director of defendant No. 3 company and is involved in the same business of media and broadcasting as that of the plaintiff. Defendant No. 2 is a journalist and an ex‑employee of the plaintiff Company. He resigned from the post of Editor‑in‑Chief of the plaintiff's channel w.e.f. 18.11.2016. On 06.05.2017, he launched a news channel Republic TV as well as a website. The defendants have also filed trade mark applications for registration of the mark NATION WANTS TO KNOW, etc., claiming proprietary rights. The applications have been filed in class 38 on 27.01.2017 for some of the marks/device. The user for the mark NATION WANTS TO KNOW is claimed since 20.11.2016 and for other marks the applications mention proposed to be used., On becoming aware that the defendants propose to adopt and use the aforesaid infringing trade mark title tagline, the plaintiff issued cease and desist notices dated 01.04.2017 and 13.04.2017 to the defendants to desist from adopting and using the infringing KNOW respectively. No reply was received. However, on 24.06.2017, the defendants commenced use of the tagline NATION WANTS TO KNOW on their news channel., Defendant No. 2 had joined the plaintiff's company Times Global Broadcasting Company Limited in 2004/2005 well before the launch of the plaintiff's Times Now Channel. He played a vital role in the plaintiff's channel as Editor‑in‑Chief and was privy to confidential information. As per the employment agreement and other terms of the employment of defendant No. 2 with the plaintiff, all intellectual property rights in everything created, made, developed or written during defendant No. 2's employment are the sole and exclusive property of the plaintiff. Defendant No. 2 is trying to take undue advantage of his past services with the plaintiff and popularity of the plaintiff's programme under the said trade mark title tagline. Reliance is placed on clause 4 of the letter of appointment dated 31.05.2005. Any brand image accrued to defendant No. 2 as an anchor of the plaintiff's show was due to the investment made by the plaintiff; therefore, all goodwill and proprietary rights created during such period belong to the plaintiff., Defendant No. 2 and Ms. Prema Sridevi, an ex‑employee of the plaintiff, committed breach of contract and misappropriated the plaintiff's confidential data and proprietary content pertaining to news stories and committed appropriate offences. The plaintiff filed a complaint before the police and also filed a suit being Civil Suit (Commercial) 370/2017 before the Hon'ble High Court of Delhi. The suit is pending. Vide order dated 26.05.2017 in Civil Suit (Commercial) 370/2017, a statement was recorded on behalf of the defendants that clause 4 of defendant No. 2's appointment letter dated 31.03.2005 and clause 6 of defendant No. 3's letter dated 16.06.2005 have not been violated and that the defendants have no intention of violating the aforesaid clauses. The defendants are pleaded to be guilty of infringement, passing off and also of violating the undertaking given to the Hon'ble High Court of Delhi on 26.05.2017 in Civil Suit (Commercial) 370/2017., The defendants have wholly and identically incorporated and usurped the most dominant feature of the registered mark NEWSHOUR and are infringing the trade mark title tagline as originating from the plaintiff. The plaintiff has used various combinations like THE NEWSHOUR, THE NEWS HOUR DEBATE, NEWSHOUR WITH 12. The plaintiff's tagline/trade mark THE NATION WANTS TO KNOW has also been copied ad verbum. The words NEWSHOUR and NATION WANTS TO KNOW are well known marks associated with the Times Group considering its scale, business, reputation and goodwill. The defendants have misled and continued to mislead the public at large which already associates the impugned trademarks titles taglines with the plaintiff Company. The acts of the defendants also amount to passing off on account of confusion and deception and are causing irreparable injury, damage and prejudice to the plaintiff., On 23.04.2018, the Hon'ble High Court of Delhi while dealing with Interim Application No. 12323/2017 filed under Order I Rule 10 of the Code of Civil Procedure for deletion of defendant No. 1 noted that the name of defendant No. 1 has been changed to defendant No. 3. Learned senior counsel for the defendants also undertook that any order passed against defendant No. 3 shall be binding on defendant No. 1. Recording the said undertaking, defendant No. 1 was deleted from the array of parties., Defendant No. 2 has filed his written statement. It is pleaded that viewers of news channels belonging to the plaintiff and defendant No. 3 are well informed, literate and can never associate or confuse between the shows or programmes aired on the respective news channels. The plaintiff's animosity with the defendants is well known and publicised and hence there is no question of any passing off. The present proceedings have been initiated in the form of vendetta litigation and merely in a purported attempt to harass and arm‑twist the defendants. The present suit is devoid of any merits., The suit is not maintainable and is barred by the doctrine of Res Sub Judice. The plaintiff on 17.05.2017 instituted a suit being Civil Suit (Commercial) No. 370/2017 alleging infringement of its alleged intellectual property by defendants No. 2 and 3 and Ms. Prema Sridevi. Defendant No. 2 was impleaded as a defendant in that suit. The plaintiff in the said suit alleged infringement of intellectual property but failed and/or deliberately omitted to sue the claims made in the present suit even though no new facts have come to light subsequent to filing of the earlier suit. In the absence of any leave from the Hon'ble High Court of Delhi under Order II Rule 2 of the Code of Civil Procedure, the present suit is not maintainable and should be rejected at the threshold. The plaintiff cannot vex and harass defendant No. 2 twice in respect of the same matter. The plaintiff was well aware that the defendants were desirous to use the title NEWSHOUR and other words and tagline as a logo even before filing of the previous suit Civil Suit (Commercial) No. 370/2017., The claim of the plaintiff to the proprietary rights in the mark NEWSHOUR has been denied. THE NEWSHOUR comprises words which are generic in nature and are widely used by different news channels and websites in simple and non‑distinct combinations in India and abroad. The word is descriptive in nature and is widely perceived as being used by news channels. Various widely broadcast items watched in the name and style of NEWSHOUR are relied upon. The registration of the trade mark THE NEWSHOUR in favour of the plaintiff is not valid since the mark lacks distinctiveness and was wrongly granted. The defendants have reserved their rights to challenge the validity of the registration granted in favour of the plaintiff of the mark THE, On the tagline NATION WANTS TO KNOW, it is stated that defendant No. 2 as a news anchor used the tagline frequently and consistently in continuation with past usage. Defendant No. 2 has been using the tagline till date. The same tagline was used by defendant No. 2 during his tenure with the plaintiff merely as words of common speech. No other news anchors or journalists employed with the plaintiff use the same as it was descriptive in nature. The tagline was neither scripted nor pre‑planned and was used in extempore speech by defendant No. 2. The tagline is synonymous with defendant No. 2 and cannot be conceived as a work over which the plaintiff can claim proprietary right. There is no intellectual property right which accrued to the plaintiff as words in common speech cannot be considered intellectual property. A simple search on popular online search engines shows that the words THE NATION WANTS TO KNOW refer only to defendant No. 2. The tagline is specific and inseparable from defendant No. 2, has become an integral part of his image and individuality and is incapable of being appropriated or imitated by any other person or entity., Defendant No. 2 after leaving the plaintiff's employment came to know about the applications filed by the plaintiff for registering the tagline as words per se and as a device. The plaintiff initially alleged the tagline as proposed to be used. Later, as an afterthought, the plaintiff sought to amend the usage stating it was a clerical error. The plaintiff cannot pre‑pone the date of usage of the tagline by simply filing a form in the Registry as this substantially alters the applications and is impermissible in law. Filing the applications with the stated usage proposed to be used indicates that the plaintiff had accepted that it had no intellectual property rights in the tagline when defendant No. 2 was employed. The subsequent volte‑face of changing the date of use is misconceived and illegal. Defendant No. 3 filed applications to register the tagline NATION WANTS TO KNOW on 27.01.2017, claiming user since November 2016. After resignation of defendant No. 2 around March 2017, he got the tagline extensively advertised on hoardings and boards announcing the launch of Republic TV. Since January 2017, the defendants have been extensively promoting the tagline in graphical form, particularly with defendant No. 2., Defendant No. 3 has also filed its written statement. It is stated that the present suit has been instituted because the channel launched by the defendants within a short span of time has stolen a march over the plaintiff's channel both in popularity and viewership. The plaintiff has not sought any specific relief against defendant No. 2. The contentions and averments raised by defendant No. 2 in his written statement have been reiterated by defendant No. 3., I have heard learned counsel for the plaintiff and learned senior counsel for the defendants. The parties have also filed their written submissions., Learned counsel for the plaintiff has made the following submissions: THE NEWSHOUR is a registered trade mark of the plaintiff in Class 35, Class 38 and Class 41 dated 15.05.2014 in relation to programme title/news broadcast. Registration of THE NEWSHOUR and its formative trademarks is prima facie evidence of its validity under Section 31 of the Trade Marks Act, 1999. No application for cancellation of the plaintiff's trade mark registration has been filed. Therefore, an injunction restraining the defendants from using the trade mark NEWS HOUR per se or in combination with other words ought to be granted in favour of the plaintiff. The plaintiff has been using the trade mark THE NEWS HOUR as the title of its shows since 2006., In March 2017, the plaintiff came across trade mark applications for the mark ARNAB GOSWAMI'S NEWSHOUR, ARNAB GOSWAMI'S NEWSHOUR 9, etc. The applications were filed by defendant No. 3 on 20.03.2017 in Class 38 on a proposed to be used basis. ARNAB GOSWAMI'S NEWSHOUR contains the whole of the plaintiff's registered trade mark NEWSHOUR and it is an established test of infringement that added elements do not prevent infringement. As NEWSHOUR is a registered trade mark, Sections 28 and 29 of the Trade Marks Act preclude the defendants from using the mark. The plaintiff relies upon the Supreme Court judgments in Kavi Raj Pandit Durga Dutt Sharma vs. N.P. Laboratories, AIR 1965 SC 980 and the Coordinate Bench judgment in Procter & Gamble Co. vs. Joy Creators & others, 2011 (45) PTC 541., The plaintiff's trade mark tagline NATION WANTS TO KNOW (hereinafter NWTK) is based on distinctiveness, goodwill and reputation of the plaintiff on account of its use since 2006 for television broadcast services. Defendant No. 2, in its written statement, admits that NWTK has acquired immense goodwill and reputation. The defendants claim that the goodwill is associated with him and not the plaintiff, which is misconceived. Defendant No. 2 was only an anchor while the entire show was a team effort involving editors, researchers, production control, creative team and script writers. In the programmes, the anchor's dialogues are based on a script and prompts provided through a teleprompter and earphone placed in the anchor's ear. Defendant No. 2 cannot claim credit for the mark/tagline., There is likelihood of confusion and deception if the defendants are permitted to use the tagline/trade mark NWTK. The defendants admit that NWTK is being used as a tagline and also as a mark. Reliance is placed on the judgment of this court in Procter & Gamble Manufacturing (Tianjin) Co. Ltd. vs. Anchor Health & Beauty Care Pvt. Ltd., 2014 (59) PTC 421., As per the employment contract signed between defendant No. 2 and the plaintiff, all intellectual property created, developed and used by defendant No. 2 in or on the channel, including in relation to the programme, exclusively belongs to the plaintiff. Accordingly, all intellectual property rights, goodwill and reputation in the trade mark title tagline in the NEWSHOUR and the NWTK belong to the plaintiff and the defendants cannot claim any right over it. Reliance is placed on clause 5 of the employment agreement dated 31.05.2004 and clause 4 of the employment agreement dated 31.03.2005., The defendants' plea that the trade mark title NEWSHOUR and the tagline NWTK are generic and descriptive is misplaced. The trade mark title tagline have acquired a high degree of distinctiveness and secondary meaning on account of long and continuous usage, aggressive promotion and marketing on various media and enormous goodwill and reputation acquired by the plaintiff. The tagline/trade mark NWTK does not indicate the kind, quality or characteristics of the services it is used for i.e., television broadcast and therefore cannot be said to be descriptive. Reliance is again placed on the Division Bench judgment in Procter & Gamble Manufacturing (Tianjin) Co. Ltd. vs. Anchor Health & Beauty Care Pvt. Ltd., The defendants cannot be permitted to approbate and reprobate. They have themselves claimed proprietary rights in the subject trade mark title tagline NEWSHOUR and NWTK by filing trade mark applications. They cannot be permitted to approbate and reprobate before the courts of law and are precluded from alleging that the subject marks are generic or descriptive., Regarding the defendants' plea that this suit is barred by the doctrine of Res Sub Judice, the previous suit being Civil Suit (Commercial) 370/2017 is a suit for breach of the contract of employment as the defendants, during employment, took away stories/material in the form of audio conversations/recordings without knowledge and consent of the plaintiff and dishonestly used them on Republic TV. The present suit is for infringement of trade mark, passing off, dilution and blurring. Therefore, the subject matter of the present suit is different from the previous suit and the causes of action are on different footings. In the earlier suit, defendant No. 2 stated that he had no intention of violating the employment agreement. He has breached the undertaking given to the Hon'ble High Court of Delhi., Learned senior counsel for the defendants has pleaded as follows: The present suit is barred by the principles of Res Sub Judice. The matter in issue is directly and substantially the same as that in the previous suit Civil Suit (Commercial) 370/2017 instituted on 17.05.2017. The plaintiff was aware of the trade mark applications filed by the defendants in March 2017 and omitted to sue them in the previous suit. In the absence of any leave of the Hon'ble High Court of Delhi under Order II Rule 2 of the Code of Civil Procedure, the present suit is not maintainable., The viewers of the plaintiff's and the defendants' news channels are well informed and literate persons and can never confuse between the shows aired on the respective channels. Reliance is placed on the Division Bench judgment in Cadila Healthcare Limited vs. Gujarat Cooperative Milk Marketing Federation Ltd., ILR (2010) II Delhi 85., THE NEWSHOUR mark comprises generic words and is widely used by news channels and websites in India and abroad. NEWSHOUR is descriptive in the news industry as a common term. It is alleged that everybody uses the mark NEWSHOUR. Reliance is placed on Sections 9 and 11 of the Trade Marks Act. The learned senior counsel also relied upon examples of the mark THE NEWSHOUR and noted that BBC also uses NEWSHOUR, hence there can be no passing off., The defendants' marks with addition of prefixes or suffixes to NEWSHOUR are not deceptively similar to the plaintiff's registered mark. The plaintiff's mark lacks distinctiveness and has been wrongly registered. The defendants seek liberty to challenge the registered mark in their written statement and intend to use combinations such as NEWSHOUR‑Arnab Goswami's News hour, Arnab Goswami's Newshour 9, Arnab Goswami's Newshour 10, Arnab Goswami's Newshour Sunday, etc., The expression NWTK and the tagline is not registered in favour of the plaintiff. Consequently, relief against alleged infringement is not sustainable. The claim for passing off is untenable as there is no misrepresentation to viewers that would injure the plaintiff's business or goodwill and no damage has been caused to the plaintiff., The tagline NWTK has become synonymous and exclusive to defendant No. 2 due to its standalone and past usage. It was a distinctive tool of news dispensation used by defendant No. 2 and is an integral part of his image and individuality, never associated with the plaintiff. Searches on Google, Yahoo, Facebook or Twitter refer the tagline NWTK only to defendant No. 2. A book by Mr. Rajdeep Sardesai titled \2014 The Election that changed India\ refers to Arnab's NWTK. The plaintiff has not filed any material to show that it has acquired goodwill or reputation in relation to the tagline; there is nothing on record suggesting public association of the tagline with the plaintiff., The use of the tagline by defendant No. 2 was never pre‑planned or scripted. It was used as words of common speech for which no intellectual property rights accrued to the plaintiff. It is a spontaneous and creative expression coined by defendant No. 2. The tagline NWTK is not a trade mark but only a part of speech. Reliance is placed on Section 2(1)(z)(b) of the Trade Marks Act., Defendant No. 2, after resigning from the plaintiff's employment on 18.11.2016, filed trade mark applications on 27.01.2017 seeking registration of the tagline as a device, claiming usage from November 2016. Defendant No. 2 decided to nurture the tagline by advertising it on hoardings and filing the applications, commencing a show in its name on 24.06.2017., The plaintiff filed a trade mark application on 17.12.2016 for the usage of NWTK on a proposed to be used basis. It is clear that the plaintiff accepted that there were no intellectual property rights subsisting in the tagline. Later, the applications were amended by changing the date of usage to 31.01.2006 as an afterthought to strengthen its claim. There is nothing on record to show that the plaintiff was using the tagline since 31.01.2006. The amendment seeking change of date of use is illegal and contravenes Rule 37 of the Trade Marks Rules 2017., None of the documents adduced by the plaintiff indicate a connection to any goods or services or the plaintiff's news channel. The phrase was used only to pose questions during interviews or while presenting news.
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It is further pleaded that the tagline NWTK and the mark NEWHOUR are not governed by the employment contract between the plaintiff and defendant No. 2. These are not trademarks to which the plaintiff has any right., I may first deal with the preliminary objection raised by the defendants that the present suit is barred by the principle of Res Sub Judice. This plea has been taken stating that the matter in the present suit is directly and substantially in issue in the previous suit filed by the plaintiff being CS 24. I may have a look at the earlier suit filed by the plaintiff. The earlier suit being CS(COMM) 370/2017 has been filed as a suit for permanent and mandatory injunction. The reliefs prayed in the said suit are as follows: Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants, its employees, assigns, nominees, etc., restraining the Defendants, its employees, assigns, nominees, etc., all other persons acting on its behalf from using or causing to use intellectual properties of the Plaintiff, disclosing or using the confidential information of the Plaintiff and broadcasting or causing to broadcast such intellectual properties, confidential information and/or confidential secret audio and video recordings pertaining to the Plaintiff, its management, senior officers, Directors, and/or other employees. Pass a decree of mandatory injunction in favour of the Plaintiff and against the Defendants, its employees, assigns, nominees, etc., directing the Defendants, its employees, assigns, nominees, etc., all other persons acting on its behalf to hand over intellectual properties of the Plaintiff, the confidential information of the Plaintiff, confidential secret audio and video recordings pertaining to the Plaintiff, its management, senior officers, Directors, and/or other employees., The present suit is filed seeking the following reliefs: Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants permanently restraining the Defendants, their directors, agents, officers, employees, cable operators, multi system operators, direct to home operators and all such other persons associated with the Defendants from adopting and using the trade mark title or tagline NEWSHOUR or any other trade marks titles taglines either by itself or comprising \NEWSHOUR\ as a part thereof, amounting to infringement of the Plaintiff's registered trade mark as enumerated above in the plaint including dilution. Pass a decree of permanent injunction in favour of the Plaintiff and against the Defendants permanently restraining the Defendants, their directors, agents, officers, employees, cable operators, multi system operators, direct to home operators and all such other persons associated with the Defendants from adopting and using trade marks titles taglines either by itself or comprising derivatives or combinations thereof or any other deceptively similar trade marks titles taglines of the Plaintiff and its channel Times Now on their television channel Republic TV, its website or any other website medium or channel in any manner whatsoever amounting to passing off of the Defendants' business services for those of the Plaintiff. Pass a decree of delivery up in favour of the Plaintiff and against the Defendants directing the Defendants to deliver up all the impugned articles and items that have upon it a mark that is identical or deceptively similar to that of the Plaintiff's trade marks titles taglines or any other material infringing the rights of the Plaintiff, lying in the possession of the Defendants and their principal officers, directors, agents, franchisees, servants etc. Pass a decree of rendition of accounts in favour of the Plaintiff and against the Defendants directing the Defendants to render all accounts of profits illegally earned by the Defendants on account of their infringing activities and a decree for the amount ascertained by this Hon'ble Delhi High Court be passed against the Defendants and in favour of the Plaintiff; and/or Pass a decree directing the Defendants to pay a sum of Rs.1,00,00,000/- towards damages to the Plaintiff., What clearly follows is that the earlier suit being CS(COMM) 370/2017 is filed by the plaintiff seeking the relief of injunction to restrain the defendants from using the intellectual properties of the plaintiff. The grievance was that defendant No. 2 herein and other defendants have wilfully and deliberately converted for their own use and for airing on Republic TV the intellectual property of the plaintiff channel. In contrast, as is apparent from the prayer clause of the present suit, the present suit is filed to restrain the defendants from infringing the registered trade mark of the plaintiff NEWS HOUR and to restrain the defendants from using the mark title or tagline NATION WANTS TO KNOW in a manner which tantamounts to passing off of the defendants' business services as those of the plaintiff., Order 2 Rule 2 of the Code of Civil Procedure reads as follows: 2. Suit to include the whole claim. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Delhi High Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted., Hence, a plaintiff is bound to include the whole of the claim which he is entitled to make in respect of the cause of action. Where a plaintiff omits to sue in respect of any portion of his claim, he shall not claim thereafter for the portion so omitted and relinquished., The Supreme Court in Virgo Industries (Eng.) P. Ltd. vs. Venturetech Solutions P. Ltd., 2013 (1) Supreme Court Cases 625 defined a cause of action as follows: 11. The cardinal requirement for application of the provisions contained in Order 2 Rules 2(2) and (3), therefore, is that the cause of action in the later suit must be the same as in the first suit. It will be wholly unnecessary to enter into any discourse on the true meaning of the said expression i.e. cause of action, particularly, in view of the clear enunciation in a recent judgment of this Court in Church of Christ Charitable Trust and Educational Charitable Society v. Ponn iamman Educational Trust [(2012) 8 Supreme Court Cases 706 : (2012) 4 Supreme Court Cases (Civil) 612]. The huge number of opinions rendered on the issue including the judicial pronouncements available does not fundamentally detract from what is stated in Halsbury's Laws of England (4th Edn.). The following reference from the above work would, therefore, be apt for being extracted hereinbelow: Cause of action has been defined as meaning simply a factual situation existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. Cause of action has also been taken to mean that particular action on the part of the defendant which gives the plaintiff his cause of complaint, or the subject‑matter of grievance founding the action, not merely the technical cause of action., A cause of action includes every fact which is material to be proved to entitle the plaintiff to succeed., As noted above, prima facie the earlier suit filed is based on the cause of action of infringement of intellectual property right whereas the present suit is based on infringement of trade mark and seeking appropriate relief pertaining to passing off of the trademark tagline NATION WANTS TO KNOW. The facts that the plaintiff has to prove for relief in the first suit are prima facie different from the facts that are to be proved in the second suit. Prima facie, it is not possible to conclude that the present suit is barred by the principle of Res Sub Judice., I will now deal with the first relief sought by the plaintiff, namely, an interim injunction to restrain the defendants from adopting or using the trade mark title NEWS HOUR. The plaintiff states that the programme THE NEWS HOUR which pertains to discussions, panel discussions, debates on current topics was launched in 2006. It is a registered trade mark and has been in continuous use since 2006. The said trade mark has been registered under Classes 16, 35, 38 and 41 on 15.05.2014 with use claimed since 31.01.2006. Hence, as per the plaintiff being the proprietor of the trade mark NEWS HOUR it has a statutory right to exclusive use thereof in India., The defendants, it is pleaded by the plaintiff, have filed the trade mark application for registration of the mark ARNAB GOSWAMI'S NEWS that the application to register the mark NEWS HOUR with its prefixes and suffixes has been made on a proposed to be used basis. It is claimed by the plaintiff that the defendants have sought to incorporate and usurp the most dominating feature of the registered mark of the plaintiff NEWS HOUR and are using various combinations like THE NEWS HOUR, THE NEWS HOUR WITH ARNAB GOSWAMI, etc. It is pleaded that the said acts of the defendants tantamount to infringement of the trade mark of the plaintiff. They also amount to passing off of the said trademarks on account of the confusion and deception., In contrast the defendants plead that the mark NEWS HOUR is a generic word and is widely used by different news channels and websites in India and abroad. It is pleaded that NEWS HOUR is descriptive in the news industry being a common term. Reliance is placed on Sections 9 and 11 of the Trade Marks Act, 1999 to plead that it is a descriptive word and does not deserve any protection from the Delhi High Court. The defendants have relied upon the judgment of the Delhi High Court in the case of Cadila Healthcare Limited v. Gujarat Co-operative Milk Marketing Federation Ltd., The undisputed facts show that the mark NEWS HOUR is a registered trade mark prima facie used by the plaintiff since 2006., The defendants have relied on the judgment of the Division Bench of the Delhi High Court in Cadila Healthcare Limited v. Gujarat Co-operative Milk Marketing Federation Ltd., (supra). That was a case where the plaintiff had filed a suit for injunction to restrain the defendants from using the trade mark Sugar Free. On the facts, the Division Bench held that the word Sugar Free is not inherently distinctive and is clearly descriptive in nature. It cannot afford protection to restrain the respondent from using the expression Sugar Free in a descriptive sense, although protection may be available in the field of artificial sweeteners., Hence, it was in those facts of the case regarding an action for passing off that the court concluded that the word Sugar Free only describes the characteristics of the product and the mark is not inherently distinctive and is clearly descriptive and cannot afford it protection as is sought. The judgment was on the facts of that case and does not help the case of the defendants., Reference may be had to a judgment of the Delhi High Court in Living Media India Ltd. & Anr. vs. Alpha Dealcom Pvt. Ltd. & Ors., (2016) 227 Delhi Law Times 681. The plaintiff was the publisher and owner of the news magazine India Today. The defendants' impugned mark was National Today. The court held that the law demands closer scrutiny when common words such as TODAY are descriptive of the services offered. The burden of establishing that descriptive words can be protected is heavy., Further case law includes British Diabetic Association v. Diabetic Society Ltd., Office Cleaning Services Ltd. v. Westminster Window & General Cleaners Ltd., and others, illustrating that courts are reluctant to grant exclusive rights over common descriptive words unless secondary meaning is established., The court in the facts of the case took the view that the rights of the plaintiff do not crystallise into a right to prevent others from using a common word TODAY in respect of news channel services., Reference may also be had to the judgment of the Supreme Court in Skyline Education Institute (India) Pvt. Ltd. vs. S.L. Vaswani & Anr., 2010 (2) Supreme Court Cases 142. The Supreme Court held that the word Skyline is generic and used by many entities, and therefore cannot be exclusively owned., Reference in this context may also be had to the judgment of a Coordinate Bench of the Delhi High Court in Bling Telecom Pvt. Ltd. vs. Micromax Informatics Ltd., MANU/DE/3301/2010. The court propounded a rule of caution that where words or phrases in common parlance are sought to be used with exclusivity, the court should determine which party has used the word longer., The test in such cases is always subjective to each case and the court has to determine whether common words having no nexus to the goods or services acquire a reputation, distinctiveness or secondary meaning as to denote a source specific association., The controversy raised by the defendants is settled by the judgment of the Division Bench of the Delhi High Court in Procter & Gamble Manufacturing (Tianjin) Co. Ltd. vs. Anchor Health & Beauty Care Pvt. Ltd. The plaintiff sought an injunction to restrain the defendant from using the trade mark All Round or All Rounder. The court held that the trade mark All Round was not descriptive and had no objection under Section 9 of the Trade Marks Act, and therefore the plea that it was generic was rejected., An SLP filed against the aforesaid judgment of the Division Bench was dismissed by the Supreme Court on 03.02.2014. The judgment, in my opinion, squarely applies to the facts of this case. The pleas of the defendants that the trade mark NEWS HOUR is descriptive and incapable of being registered did not find favour when the plaintiff applied for registration. No objections were received on the ground of applicability of Section 9 of the Act., I also note that a plea has been raised by the defendants that they propose to challenge the registration of the said trade mark by the Registry. No such challenge appears to have been made so far. Clearly, there is prima facie no merit in the plea of the defendants that the mark in question is generic and incapable of being protected as a trade mark., Another plea raised by the defendants was that the defendants' mark is with addition of prefixes and suffixes with NEWS HOUR and cannot be said to be deceptively similar to the alleged mark of the plaintiff. The defendants seek to use combinations such as GOSWAMI'S NEWS HOUR SUNDAY, etc. In this context reference may be had to the judgment of the Supreme Court in Kaviraj Pandit Durga Dutt Sharma vs. Navaratna Pharmaceutical Laboratories, where the Court held that the suit complained of both an invasion of a statutory right under Section 21 in respect of a registered trade mark and also of passing off by the use of the same mark.
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id_1172
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The finding in favour of the appellant to which the learned counsel drew our attention was based upon dissimilarity of the packing in which the goods of the two parties were vended, the difference in the physical appearance of the two packets by reason of the variation in the colour and other features and their general get‑up together with the circumstance that the name and address of the manufactory of the appellant was prominently displayed on his packets and these features were all set out for negativing the respondent's claim that the appellant had passed off his goods as those of the respondent. These matters which are of the essence of the cause of action for relief on the ground of passing off play but a limited role in an action for infringement of a registered trade mark by the registered proprietor who has a statutory right to that mark and who has a statutory remedy for the event of the use by another of that mark or a colourable imitation thereof. While an action for passing off is a Common Law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another, that is not the gist of an action for infringement. The action for infringement is a statutory remedy conferred on the registered proprietor of a registered trade mark for the vindication of the exclusive right to the use of the trade mark in relation to those goods (vide Section 21 of the Trade Marks Act). The use by the defendant of the trade mark of the plaintiff is not essential in an action for passing off, but is the sine qua non in the case of an action for infringement. No doubt, where the evidence in respect of passing off consists merely of the colourable use of a registered trade mark, the essential features of both the actions might coincide in the sense that what would be a colourable imitation of a trade mark in a passing off action would also be such in an action for infringement of the same trade mark. But there the correspondence between the two ceases. In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant's mark is likely to deceive, but where the similarity between the plaintiff's and the defendant's mark is so close either visually, phonetically or otherwise and the Supreme Court of India reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff's rights are violated. Expressed in another way, if the essential features of the trade mark of the plaintiff have been adopted by the defendant, the fact that the get‑up, packing and other writing or marks on the goods or on the packets in which he offers his goods for sale show marked differences, or indicate clearly a trade origin different from that of the registered proprietor of the mark would be immaterial; whereas in the case of passing off, the defendant may escape liability if he can show that the added matter is sufficient to distinguish his goods from those of the plaintiff., Reference may also be had to the judgment of the Supreme Court of India in the case of Ruston & Hornsby Ltd. v. Zamindara Engineering Co., AIR 1970 SC 1649 where the Supreme Court of India held as follows: In the present case the High Court of India has found that there is a deceptive resemblance between the word RUSTON and the word RUSTAM and therefore the use of the bare word RUSTAM constituted infringement of the plaintiff's trade mark RUSTON. The respondent has not brought an appeal against the judgment of the High Court of India on this point and it is therefore not open to him to challenge that finding. If the respondent's trade mark is deceptively similar to that of the appellant, the fact that the word INDIA is added to the respondent's trade mark is of no consequence and the appellant is entitled to succeed in its action for infringement of its trade mark., What follows from the above judgments is that if the defendant's trade mark is deceptively similar to that of the plaintiff, mere addition of a word by the defendant to the trade mark is of no consequence and the plaintiff is entitled to succeed in its action for infringement of its trade mark., In the facts of this case, in my view, merely adding some prefixes or suffixes to the trade mark NEWS HOUR does not help the defendants to claim that the mark which is being used by the defendants is not deceptively similar to that of the plaintiff., The marks which are being used by the defendants, namely ARNAB, prima facie would be deceptively similar to the mark of the plaintiff THE NEWS HOUR. The plaintiff is entitled to relief on this account., I will now deal with the second relief sought in the present application, namely to restrain the defendants from adopting the trade mark title tagline NATION WANTS TO KNOW. It is the case of the plaintiff that the trade mark tagline NATION WANTS TO KNOW (NWTK) is based on distinctiveness, goodwill and reputation of the plaintiff on account of its use since 2006 for goods and services in relation to television broadcast. The plaintiff pleads that if the defendants are permitted to use the trade mark tagline NWTK, it would create confusion and deception. The plaintiff further states that, as per the employment contract signed between the plaintiff and defendant No. 2, all intellectual property created, developed and used by defendant No. 2 in or on the channel, including in relation to the programme, exclusively belongs to the plaintiff. It is stated that defendant No. 2 cannot claim any right on NWTK., On the other hand, the defendants plead that NWTK is not a registered tagline or mark of the plaintiff. Hence, the plaintiff has to, at best, make out a case for passing off. The defendants contend that the plaintiff has failed to show any goodwill in the stated tagline NWTK. They further state that there is no misrepresentation by the defendants to its viewers which is calculated to injure the plaintiff's business or goodwill. No case for passing off is therefore made out. The defendants also argue that the viewers of the plaintiff and the defendant news channels are well‑informed and literate persons and can never be confused between shows aired by the respective channels. They plead that NWTK was a distinctive tool of news dispensation used by defendant No. 2, that it is a word of common speech and was not used as a tagline, and that the phrase has no connection to any goods or services of the plaintiff's news channel. The phrase was used only to pose questions during interviews. NWTK has never been associated with the plaintiff; it is associated with defendant No. 2 and his personality., Reference in this context may be had to the judgment of the Supreme Court of India in the case of Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd., 2001 (5) SCC 73. That was a case in which the appellant had filed a suit seeking injunction against the respondent from using the trade mark Falcitab as it was claimed that the same would be passed off as the appellant's drug Falcigo for treatment of the same disease. The Supreme Court of India held as follows: Under Section 28 of the Trade Marks Act, on the registration of a trade mark in Part A or B of the register, a registered proprietor gets an exclusive right to use the trade mark in relation to the goods for which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. In the case of an unregistered trade mark, Section 27(1) provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Sub‑section (2) of Section 27 provides that the Act shall not be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. In other words, in the case of unregistered trade marks, a passing‑off action is maintainable. The passing‑off action depends upon the principle that nobody has a right to represent his goods as the goods of somebody else. As per Lord Diplock in Erven Warnink BV v. J. Townend & Sons [(1979) 2 All ER 927] the modern tort of passing off has five elements: (1) a misrepresentation, (2) made by a trader in the course of trade, (3) to prospective customers or ultimate consumers of goods or services supplied by him, (4) which is calculated to injure the business or goodwill of another trader, and (5) which causes actual damage to the business or goodwill of the trader by whom the action is brought, or in a quia timet action will probably do so. Hence, the court concluded that a passing off action depends upon the principle that nobody has a right to represent his goods as goods of somebody else. The court noted the five elements of passing off, namely, (i) misrepresentation, (ii) to prospective customers, (iii) made by a trader, (iv) which is calculated to injure the business and goodwill of another trader, and (v) which causes actual damage to the business or goodwill of the trader by whom the action is brought., I may also reiterate the observations of the Supreme Court of India in the case of Kaviraj Pandit Durga Dutt Sharma v. Navaratna Pharmaceutical Laboratories, where the Supreme Court noted that passing off is a common law remedy being in substance an action for deceit, that is, a passing off by a person of his own goods as those of another., Hence, the issue that arises is whether the defendants, by use of the mark tagline NWTK, seek to misrepresent to prospective customers of news channels, a misrepresentation that would cause damage to the business and goodwill of the plaintiff. Both sides have filed a large number of documents relying upon various print‑outs and screenshots of Facebook, Twitter and various search engines such as Google to plead that the tagline trade mark NWTK is associated only with the respective parties., The plaintiff claims that it has been using the tagline trade mark NWTK since 2006 for goods and services in relation to television broadcast. It has acquired goodwill and reputation due to the time, effort, financial and human resources expended by the plaintiff. Reliance is placed on various documents to support its contention of use since 2006. The plaintiff has filed print‑outs of screenshots of Facebook from 2013 to 2017, and screenshots from various online platforms including Twitter, Facebook and YouTube claiming use of NWTK. Reliance is also placed on some news reports and articles allegedly showing goodwill and reputation of the plaintiff on the trade mark NWTK. Based on these documents, it is urged that the plaintiff has a strong reputation and goodwill for the tagline NWTK in news dispensation to warrant an interim order in favour of the plaintiff. In my opinion, both sides rely on screenshots from various search engines. The screenshots and other documents placed on record require a more detailed examination which can only be done after the parties have led evidence., There is another reason, in my opinion, why the above documents require detailed examination after evidence is led by the parties. The plaintiff applied for registration of the tagline NWTK in Classes 38 and 41 on 17 December 2016. The application was filed on a proposed‑to‑be‑used basis. Hence, at the time of filing, the plaintiff had not yet commenced use of the same as a trade mark. The plaintiff later filed an amendment application claiming that the user stated in the original application was due to inadvertence and oversight, and now claims use since 31 January 2006. The defendants have strongly relied upon the original application to argue that it was the plaintiff's case that the tagline NWTK was proposed to be used in 2016 and that there was no prior user. They have objected to the amendment application filed by the plaintiff. In my opinion, for the purpose of deciding the present application, the conduct of the plaintiff in filing the application in the Trademark Registry stating the user as proposed to be used has relevance. These issues will have to be examined after the parties have led their evidence. The date of use of the tagline NWTK can only be decided appropriately after the parties have led their evidence. Based on these documents and screenshots of Twitter and other posts, a prima facie case is not made out. In these facts and circumstances, prima facie it is not possible, at this stage without leading of evidence, to conclude that the defendants seek to mislead the consumers of the news channel or that the defendants' use of the said tagline would cause damage to the plaintiff as claimed., Another plea strongly urged by the plaintiff, relying upon the employment agreements, is that the said trademark and tagline are the proprietary rights of the plaintiff. Reliance is placed on Clause 5 of the employment agreement dated 31 May 2004 and Clause 4 of the employment agreement dated 31 March 2005, which state that all intellectual property rights relating to the work done or created by defendant No. 2 in the course of the contract with the plaintiff company shall solely and exclusively belong to the company, i.e., the plaintiff. Clause 4 of the agreement dated 31 March 2005 reads as follows: 'All intellectual property rights relating to the work done or created by you, including all literary, dramatic or artistic work done in the course of your contract with the company, shall belong solely and exclusively to the company in perpetuity, and the company shall have the sole and exclusive right to utilize any such material, including text, photographs, illustrations, graphics, film, articles, stories, features, cartoons, books, audio‑video, logos, brand names, and other items, created, written or made by you. The right in these works shall continue to vest with the company even after the termination or end of the contract period.', The defendants have, however, denied the plaintiff's stand. They state that the tagline was never pre‑planned or scripted, that it was used as a word of common speech for which there is no intellectual property belonging to the plaintiff, and that it was not the result of any significant creative effort with respect to the formatting of the plaintiff's show., Whether NWTK was used as a trade mark, as claimed by the plaintiff, is an aspect that must be examined after evidence is completed between the parties., The defendants strongly plead that the tagline in question was used as common speech for which there is no intellectual property belonging to the plaintiff. It was a spontaneous and creative expression used by defendant No. 2 and was not used as a trade mark. The defendants also contend that none of the documents adduced by the plaintiff indicate a connection of the mark NWTK to any goods or services or to the plaintiff's news channel., I may note that learned counsel for the plaintiff, on the last date of hearing on 1 October 2020, clarified that they have no objection if defendant No. 2 uses the phrase NWTK in the course of speech or presentation of a programme. The plaintiff's grievance is that the defendants have also applied for registration of the same as a tagline trade mark with the Trademark Registry, which is not permissible. It was also stated by the plaintiff's counsel that the defendants' application for registration of the said tagline with the Trademark Registry has been rejected., In my opinion, it is only after evidence has been led that it can be ascertained whether the plaintiff was using the aforesaid mark as a trade mark or whether it was merely being used as a form of speech in the course of conducting the news channel or in interviews and presentations by defendant No. 2. These are aspects on which, prima facie, no view can be made at this stage based on the documents placed on record, namely screenshots of various sites such as Twitter and Facebook., In view of the above, I partly allow the present application. An interim injunction is passed in favour of the plaintiff and against the defendants, restraining them from using the trade mark NEWS HOUR or any other mark which is deceptively similar to the trade mark NEWS HOUR of the plaintiff., Regarding the tagline NATION WANTS TO KNOW, no interim order is passed at this stage in favour of the plaintiff. As submitted by the learned counsel for the plaintiff, defendant No. 2 is free to use the phrase as part of his speech or presentation on any news channel. However, if the defendants choose to use the same as a trade mark with respect to any of their goods or services, the defendants will maintain accounts for such usage. Such accounts shall be filed in court regularly on an affidavit of one of the directors of defendant No. 3 once every six months.
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id_1174
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Applicant: Suraj Pasi. Opposite Party: State of Uttar Pradesh. Counsel for Applicant: Rajesh Chandra Dwivedi, Ajay Kumar Pathak, Ashish Kumar Dubey, Praveen Kumar Srivastava. Counsel for Opposite Party: Honourable Ajay Bhanot, Shri Paritosh Kumar Malviya, Additional Government Advocate for the State., The learned Additional Government Advocate for the State submits that there are eye witnesses to the incident. He prays for and is granted time to file a counter affidavit. The affidavit shall also bring all relevant facts including the evidence collected during the course of investigation into the record., The report sent by the learned Additional Sessions Judge, Allahabad Sessions Court discloses that the trial could not proceed on several occasions because the counsels were on strike. The dates on which the trial was impeded due to the strikes of the lawyers, as recorded in the comments of the trial court, are 16 February 2022, 26 March 2022 and 8 November 2022., Courts in India have consistently set their face against lawyers' striking actions. Often accused persons are in jail, and the trial is hampered because of strike actions by lawyers. Striking actions of lawyers not only interfere with the administration of justice but also cause a flagrant violation of the fundamental rights of accused persons – prisoners' right to a speedy trial. The comments contain irrefutable evidence that the process of the court was impeded by lawyers abstaining from work on account of strike calls. Counsels cannot hold the judicial process to ransom by irresponsibly going on strike and bringing the work in the court to a standstill. Such conduct of the lawyers is in the teeth of law laid down by the Supreme Court of India in Ex‑Captain Harish Uppal v. Union of India and another reported at (2003) 2 Supreme Court Cases 45 as well as in Krishnakant Tamrakar v. State of Madhya Pradesh, reported at All India Reporter 2018 Supreme Court 3635. The process of law has to run its course unimpeded by any such obstructions. The courts have to pass appropriate orders in accordance with law even when the parties or counsels are not cooperating with the trial proceedings. The court proceedings cannot come to a standstill owing to striking lawyers and lethargic litigants., From the comments of the learned Additional Sessions Judge, Allahabad Sessions Court, it appears that the strike actions were not a one‑off occurrence but seem to be a regular feature of the concerned court. The Chairman, Bar Council of Uttar Pradesh shall appear in person on the next date of listing and explain the steps proposed to be taken by the Bar Council of Uttar Pradesh to prevent such occurrences in the future and the action to be taken in this case. The learned trial Judge, Allahabad Sessions Court shall forward the names of the concerned office bearers of the Bar Association who called and enforced the strikes and prevented the counsels as well as the courts from discharging their judicial work. The learned trial Judge, Allahabad Sessions Court shall also indicate that, upon due enquiry with the jail authorities as to why the accused persons who were in prison were not produced before the learned trial court on the appointed date, the following details be furnished: names of the accused persons with the respective dates on which they were arrested; dates on which the accused persons were produced together in the court; causes for failure to produce the accused persons in court together after they had been arrested, and the action taken by the trial court for such failure of the authorities. The case shall be listed on 20 December 2022 in the list of fresh cases. A copy of this order shall be communicated to the learned District Judge, Allahabad and to the Chairman, Bar Council of Uttar Pradesh by the Registrar (Compliance).
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id_1175
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Criminal Writ Jurisdiction Case No. 511 of 2022 arising out of Police Station case No. – Year – 0, Thana – District – Patna. Amit Raj, male, about 35 years old, son of Sri Janardan Prasad, resident of C/O Dwarika Prasad, Babu Tola Lane, Govind Mitra Road, Police Station Pirbahore, Post Office Bankipur, District Patna, presently residing at 304, Sri Ram Palace, East Boring Canal Road, Police Station Budha Colony, District Patna. Petitioners versus: The State of Bihar through the Secretary (Home), Government of Bihar, Patna; The Director General of Police, Bihar, Patna; The Superintendent of Police, Patna; The Superintendent of Police, Gopalganj; The Officer-In-Charge, Pirbahore Police Station, District Patna; The Officer-In-Charge, Budha Colony Police Station, District Patna; The Officer-In-Charge, Gopalganj Town Police Station, District Gopalganj; Ranjan Kumar Singh, son of late Harendra Prasad Singh; Rinku Singh alias Rinku Devi, wife of Sri Ranjan Kumar Singh; Simran Singh Rajput, wife of Amit Raj. All residents of Ambedkar Chowk, Ward No. 21, Police Station Gopalganj Town, District Gopalganj., Appearance for the petitioners: Mr. S. D. Sanjay, Senior Advocate; Mrs. Priya Gupta, Advocate; Mr. Akshat Agrawal, Advocate. For respondents 8 and 9: Mr. Ansul, Advocate; Mr. Md. Sufiyan, Advocate. For the State/respondents 1 to 7: Mr. Prabhu Narayan Sharma, Advocate, Assistant Counsel to the Advocate General. Date: 21 June 2022. Patna High Court., The hearing was conducted in chambers. On 20 June 2022, the Senior Superintendent of Police, Patna (hereinafter referred to as the Senior Superintendent of Police, Patna) and the City Superintendent of Police, Central, Patna were present in person. The Court noted that after interaction with respondent 10, she unequivocally expressed that she had voluntarily married the petitioner., The father of respondent 10 (respondent 8), the mother‑in‑law of respondent 10 (Mrs. Jyoti Devi), the brother‑in‑law of respondent 10 (Mr. Aatish Kumar), the sister‑in‑law of respondent 10 (Mrs. Mona Shreen), the petitioner, and two of the three witnesses to the marriage solemnised under the Special Marriage Act, 1954, were present before the Patna High Court. The Court is convinced that the marriage between the petitioner and respondent 10 is genuine and that they wish to continue with the marriage. Although respondent 8 expressed some reservation, his primary concern was the safety and security of his daughter. The petitioner’s family took a clear stand that respondent 10 would be accepted as a family member, given due status and respect as the petitioner’s wife, and that they would support her academic and professional aspirations., To allay the fears of respondent 10’s family, especially her father, the Patna High Court solicited the views of the Senior Superintendent of Police, Patna and the City Superintendent of Police, Central, Patna. They suggested several short‑term and long‑term measures. Having considered their views, the Court believes that the Senior Superintendent of Police, Patna and the City Superintendent of Police, Central, Patna are competent authorities to ensure the safety and well‑being of respondent 10, and the Court places its confidence in them to make adequate arrangements., It is well settled that a major girl is free to marry and reside with a person of her choice. Article 16 of the Universal Declaration of Human Rights, 1948, to which India is a signatory, provides that men and women of full age have the right to marry and found a family, that marriage shall be entered into only with the free and full consent of the intending spouses, and that the family is the natural and fundamental group unit of society entitled to protection. Article 23 of the International Covenant on Civil and Political Rights similarly recognises the right of men and women of marriageable age to marry with free consent and the protection of the family. The Supreme Court in Sangita Rani (Smt.) alias Mehnaz Jahan v. State of Uttar Pradesh, 1992 Supp (1) SCC 715, upheld a valid marriage between major spouses. The principle that a major can marry anyone of choice is the dictum in Lata Singh v. Union of India, (2006) 5 SCC 475. The freedom of choice in marriage is encompassed in Article 21 of the Constitution of India. The right to privacy, as recognised in Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1, includes a woman’s choice of partner, as held in Asha Ranjan v. State of Bihar, (2017) 4 SCC 786. Consent of the family or community is unnecessary for two individuals to marry, as affirmed under Articles 19 and 21 of the Constitution in Shakti Vahini v. Union of India, (2018) 7 SCC 192. In Shafin Jahan v. Asokan K. M., AIR 2018 SC 357, the Supreme Court stated that societal approval is not a basis for legal recognition of intimate personal relationships. The Court also cautioned parents to accept the marriage without creating hindrance., The situation would not be different even if the modern concept of live‑in relationships is considered, provided the parties are major and choose to be together voluntarily without pressure or coercion. In Satyawati Sharma v. Union of India, 2008 (6) SCALE 325 and Kashmir Singh v. Union of India, (2008) 7 SCC 729, the Court opined that changing societal conditions must be taken into account while interpreting the law., The Patna High Court, while bound to follow the law laid down by the Supreme Court, shall protect the fundamental rights of citizens. Accordingly, respondent 10, without opposition from respondent 8, is permitted to accompany the petitioner to the matrimonial home from the Court itself. The petitioner, his family members and respondent 10 shall visit the office of the Senior Superintendent of Police, Patna at 6.00 PM on 21 June 2022, where modalities for ensuring the safety and security of respondent 10 shall be worked out. The Court records the unambiguous undertaking by the petitioner and his relatives to maintain the safety, well‑being, dignity and honour of respondent 10 at all times. The petitioner and his family also undertake that respondent 10 shall be free to pursue her academic and professional goals, and that her boarding, lodging, medical and other expenses shall be borne by the petitioner and his family., The Senior Superintendent of Police, Patna shall, in addition to any other measures, arrange for a lady police officer of sufficient seniority to exchange mobile phone numbers with respondent 10 and to be instructed to receive and promptly respond to any call, text or WhatsApp message from respondent 10., For the avoidance of doubt, respondent 10 shall be free to talk to, meet or visit any person she desires without any hindrance from the petitioner or his family members., The respondent 10 has filed Title Suit No. 381 of 2022 before the learned Sub‑Judge, First, Gopalganj, seeking declaration that her marriage with the petitioner is null and void. She has stated that she is not desirous of proceeding with the suit and that she signed the papers under duress. The petitioner has also instituted a First Information Report, Budha Colony Police Station Case No. 181 of 2022, against the family members of respondent 10. Considering the parties’ desire for a fresh start, the Court finds no purpose in allowing either the Title Suit or the FIR to linger., Under Section 482 of the Code of Criminal Procedure, 1973, the High Court has the power to quash criminal proceedings, including those involving non‑compoundable offences, as recognised in Gian Singh v. State of Punjab, (2012) 10 SCC 303, State of Madhya Pradesh v. Laxmi Narayan, (2019) 5 SCC 688, and Ramgopal v. State of Madhya Pradesh, 2021 SCC OnLine SC 834., The Court hereby quashes Budha Colony Police Station Case No. 181 of 2022 with the consent of the petitioner and dismisses Title Suit No. 381 of 2022 with the consent of respondent 10. The Registry shall transmit copies of this judgment to the court where the FIR is pending and to the Sub‑Judge, First, Gopalganj, where the Title Suit is pending. The Sub‑Judge shall record the quashment of the FIR and dismiss the Title Suit. The petitioner and respondents 8, 9 and 10 are agreed on this course of action., The Senior Superintendent of Police, Patna, in conjunction with the Superintendent of Police, Gopalganj, shall make an appropriate enquiry into the role of Ujwal Singh Raftar, who is alleged to have threatened the petitioner and against whom a complaint was lodged in Budha Colony Police Station in the third week of May 2022., The police authorities at Patna and Gopalganj shall consider all material aspects to ensure that the family members of both sides, including respondent 8 and respondent 10, are not subjected to any threat from any quarter, as expressed during the hearing., The petitioner, now aged almost 35 years, affirmed that he has never been married before; the love affair with respondent 10 began when he was 29 years old., Respondent 8 reported receiving threatening and abusive calls from an unknown number. He may disclose the number to his counsel, who will forward it to Mr. Prabhu Narayan Sharma for transmission to the Senior Superintendent of Police, Patna, who will take necessary steps to stop the calls., The Court notes that any party having an actual apprehension of threat may approach the Patna High Court at any time., With the observations and directions above, this criminal writ petition stands disposed of.
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Vitthal Rambhau Chaudhari, aged about 58 years, occupation Agriculturist, resident of Pardi Takmor, Taluka and District Washim. The State of Maharashtra, through Police Station Officer, Police Station, Washim (Rural), Taluka and District Washim. Madan Shyamrao Chaudhari, aged about 33 years, occupation Service, resident of Pardi Takmore, Taluka and District Washim. Balaji Vitthal Gaikwad, aged about 33 years, occupation Agriculturist, resident of Pardi Takmore, Taluka and District Washim. Ms. Parita N. Lakhani, Advocate for Appellant. Shri S. D. Sirpurkar, Additional Public Prosecutor for Respondent/State. Shri R. D. Khapre, Advocate for Respondent Nos. 2 and 3., In this appeal filed under Section 372 of the Code of Criminal Procedure, a challenge is raised to the judgment and order passed by the learned Additional Sessions Judge, Washim Sessions Court in Sessions Trial No. 27/2016 dated 23/05/2019 acquitting the accused Nos. 1 and 2 (respondent Nos. 2 and 3) for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code. The prosecution case is that on 10/03/2015, Sandip Vitthal Chaudhari committed suicide by jumping into a well. Shankar Rambhau Chaudhari (PW‑1), the uncle of the deceased, lodged a report of accidental death and Marg No. 10/2015 was registered under Section 174 of the Code of Criminal Procedure. During the inquest panchanama, a suicide note was found in a plastic pouch in the pocket of the deceased's trousers. The note blamed accused Nos. 1 and 2 for the suicide and stated that the deceased was being harassed by them., On 13/05/2015, Vitthal Rambhau Chaudhari lodged a report blaming accused Nos. 1 and 2 for the suicide of Sandip. Consequently, Crime No. 40/2015 was registered for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code. After investigation, the Investigating Officer filed the charge‑sheet on 01/01/2016. The learned Additional Sessions Judge, Washim Sessions Court framed the charge under Section 306 read with Section 34 of the Indian Penal Code vide Exhibit‑10 against the accused persons. Both accused pleaded not guilty vide Exhibits 1 and 12 and claimed to be tried. The prosecution examined twelve witnesses. The defence under Section 313 of the Code of Criminal Procedure denied the charges, claimed the case was false, and did not examine any witness in support of their case. The trial court, after scrutinising the evidence, acquitted both accused for the offence punishable under Section 306 read with Section 34 of the Indian Penal Code vide impugned judgment and order dated 23/05/2019., Counsel for the appellant, Ms. Lakhani, submits that the learned Sessions Judge gave perverse findings not based on the evidence and that the acquittal of the respondent Nos. 2 and 3 is erroneous. She further submits that the suicide note recovered from the deceased’s trouser pocket, which blames the accused persons for the suicide, is sufficient to establish guilt beyond doubt and that the trial court ignored this note while acquitting the respondents., Counsel for the respondents, Shri R. D. Khapre, supports the impugned judgment and order dated 23/05/2019, stating that the trial court, after detailed scrutiny of the evidence, held that the prosecution failed to prove the charge of abetment of suicide against both accused beyond reasonable doubt. He relied upon the judgment of the Division Bench of this Court in the case of Dilip s/o Ramrao Shirasao and others v. State of Maharashtra reported in 2016 ALL MR (Cri.) 4328. Shri S. D. Sirpurkar, Additional Public Prosecutor, states that the State has not filed an appeal in this case., The prosecution’s evidence includes the testimony of PW‑1, Shankar Choudhary, uncle of the deceased, who stated that Sandip worked at Jagdish Jadhav’s medical store and that the business of the brother of accused No. 1 (Madan) was not doing well. He alleged that accused Madan and Balaji threatened Sandip to close the shop, otherwise they would kill him. PW‑1 also stated that accused Balaji did not give the amount of Bhisi fund of Rs. 40,000 to the deceased and that, after ten to fifteen days of the draw of Bhisi, Sandip committed suicide. He further deposed that a plastic pouch containing a letter was found in the deceased’s trouser pocket, in which the deceased wrote, “I am committing suicide due to the harassment of accused.” PW‑12, the wife of the deceased, gave a similar deposition, stating that there were threats and harassment from both accused. Both witnesses are not direct witnesses to the alleged harassment but reported that the deceased had told them about threats and harassment., Section 306 of the Indian Penal Code (Abetment of Suicide) provides that whoever abets the commission of suicide shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine. Section 107 of the Indian Penal Code (Abetment of a Thing) defines abetment as: (1) instigating any person to do that thing; (2) engaging with one or more other persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy; or (3) intentionally aiding, by any act or illegal omission, the doing of that thing., The Hon'ble Supreme Court of India, in Amalendu Pal v. State of West Bengal, reiterated that abetment involves a mental process of instigating or intentionally aiding a person in doing a thing, and that a more active role such as instigation or aid is required before a person can be said to be abetting an offence under Section 306 IPC. In Kishori Lal v. State of Madhya Pradesh, the Court explained that Section 107 IPC defines abetment and that the essential elements are instigation, conspiracy, or intentional aid. Section 109 provides that if the act abetted is committed in consequence of abetment and there is no specific provision for punishment, the offender is punished with the punishment for the original offence., In Chitresh Kumar Chopra v. State (NCT of Delhi), the Supreme Court observed that a person can be said to have abetted a thing if he (i) instigates any person to do that thing; (ii) engages in a conspiracy for the doing of that thing; or (iii) intentionally aids by any act or illegal omission. The Court further explained that “instigate” means to provoke, incite, urge on or bring about by persuasion, and that direct involvement of the accused in the commission of suicide is essential to attract liability under Section 306 IPC. The Court in Ramesh Kumar v. State of Chhattisgarh held that instigation need not be expressed in explicit words but must create a reasonable certainty of incitement, and that a mere angry utterance without intention to cause the consequence does not amount to instigation., The Supreme Court, in Ude Singh v. State of Haryana, held that for alleged abetment of suicide there must be proof of a direct or indirect act of incitement. Mere allegation of harassment without a positive act proximate to the time of the suicide is insufficient for conviction under Section 306. The Court emphasized that the accused must have created circumstances that left the deceased with no other option but to commit suicide, and that the mens rea of the accused must be examined in light of the actual acts and deeds., The Hon'ble Supreme Court, in Ajit Savant Majagvai v. State of Karnataka (1997) 7 SCC 110, laid down the principles governing an appeal against an order of acquittal. The High Court possesses the same powers as in an appeal against conviction, may re‑appraise the evidence, and may reverse an acquittal only if the findings of the trial court are perverse, erroneous, or contrary to the weight of evidence. The High Court must record its reasons for not accepting the grounds of acquittal and must keep in mind the presumption of innocence and the benefit of doubt owed to the accused., In view of the settled legal position and the findings recorded, the trial court was correct in law in concluding that the prosecution failed to prove the charge of abetment of suicide against both accused beyond reasonable doubt.
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Case: Writ Petition No. 3990 of 2014. Petitioner: Prem Prakash Yadav. Respondent: Union of India through the Secretary, Minister of Urban Planning and Development. Counsel for Petitioner: Chandra Kala Pandey, Prince Verma, Ravi Shanker Tewari, Santosh Kr. Yadav Warsi. Counsel for Respondent: Chief Secretary, Additional Solicitor General, Amarjeet Singh Rakhra, Gaurav Mehrotra, Maria Fatima, V. K. Dubey, Honourable Justice Vivek Chaudhary, Honourable Justice Manish Kumar., Heard learned counsel for parties., Petitioner, a practicing advocate, claims to be a tenant of House No. 23, Stanley Road, Allahabad (new number being 85) built upon Nazul land bearing Nazul Plot No. 22 AA situated at Civil Station, Allahabad. The plot was registered in the name of Smt. Chandrakala Devi. On 16 June 2001, approval was granted for conversion of the Nazul land into freehold in favour of the legal heirs of late Smt. Chandrakala Devi. A sale deed was executed by the legal heirs on 18 August 2001 in favour of respondents Nos. 8 to 10. By the present petition, petitioner prays for the quashing of a government policy decision dated 26 February 2014 whereby approval was given to revise rates for conversion of Nazul property into freeholds and to change the Nazul policy. He also challenges Clause 10 of the Notification dated 4 March 2014. He seeks quashing of the deed dated 7 July 2001 executed by the State in favour of the legal heirs of late Smt. Chandrakala Devi. He also seeks a mandamus commanding the respondents not to interfere with petitioner’s possession of House No. 23, Stanley Road, Allahabad (built on Nazul Plot No. 3)., Sri Gaurav Mehrotra, assisted by Ms. Maria Fatima, learned counsel for respondents Nos. 8 to 10, questions the maintainability of the present petition at Lucknow. He submits that petitioner previously filed a writ petition bearing Civil Miscellaneous Writ Petition No. 17060 of 2002 (R. S. Yadav and Anr. v. State of Uttar Pradesh and Others) at Allahabad praying for a mandamus directing respondents to execute a sale deed in favour of petitioner for the same Nazul property. That petition was disposed of by judgment and order dated 19 February 2009, with the observation that the State is not duty bound to execute a sale deed in favour of any individual. Another writ petition, Writ Petition No. 15798 of 2010 (Prem Prakash Yadav v. Union of India and Others), was also filed by the petitioner at Allahabad seeking essentially the same reliefs with regard to the same property. The present petition is the third petition filed by the petitioner, now at Lucknow, concerning the same property., Petitioner submits that filing the third petition at Lucknow after filing two earlier petitions at Allahabad amounts to forum hunting and is contrary to the settled principle that once a forum has been chosen by a party, he should continue with the same forum for all future litigation in the matter. In support of his submissions, learned counsel for the petitioner relies upon the reported judgment of the Supreme Court in Kusum Ingots & Alloys Ltd. v. Union of India and Another (2004) 6 SCC 254., Counsel for the petitioner insists that the cause of action in the present petition has arisen within the territorial jurisdiction of both Lucknow and Allahabad and thus the petition is maintainable at Lucknow also. Petitioner had earlier filed two petitions bearing Civil Miscellaneous Writ Petition No. 15798 of 2010 and Civil Miscellaneous Writ Petition No. 17060 of 2002 at Allahabad. Learned counsel for petitioner states that he does not know whether Civil Miscellaneous Writ Petition No. 17060 of 2002 is pending or disposed of. Filing of the present petition at Lucknow is only an exercise of forum conveniens., Petitioner’s writ petition discloses in paragraph 68 that he and another had filed a writ petition before this Honourable Court on 29 April 2002 challenging the grant of free‑hold rights made in an illegal and fraudulent manner, numbered Civil Miscellaneous Writ Petition No. 17060 of 2002, where Honourable Justice M. Katju and Honourable Justice Rakesh Tiwari ordered status‑quo as regards possession to be maintained till further orders. Paragraph 85 states that thereafter the petitioner filed a writ petition challenging the legality and validity of the order dated 5 June 2009 passed by the Principal Secretary, Department of Housing and Urban Planning, Government of Uttar Pradesh, numbered Civil Miscellaneous Writ Petition No. 15798 of 2010. The Lucknow Bench of the Allahabad High Court ordered on 1 April 2010 that counsel for the Union of India and the State of Uttar Pradesh file counter‑affidavits, and that the conversion order not affect the petitioner’s rights as a tenant., A perusal of the paperbook shows that the petitioner stated in the first paragraph of the writ petition that this is his first writ petition with regard to the present cause of action. He failed to disclose in the first paragraph that earlier petitions were filed at Allahabad, as required by Chapter 22, Rule 1 of the Allahabad High Court Rules, 1952. The disclosure was mandatorily required to be made in the first paragraph, not in later paragraphs., Petitioner insists that the present petition is filed against a cause of action that arises within Lucknow. However, he has admitted in paragraphs 68 and 85 that he earlier filed two petitions at Allahabad concerning the same property. Filing the present petition at Lucknow amounts to forum hunting and not forum conveniens. The Supreme Court has settled the law on forum conveniens in Kusum Ingots & Alloys Ltd. (supra), paragraph 30, stating that even if a small part of the cause of action arises within the territorial jurisdiction of a High Court, it may not be a determinative factor compelling the High Court to decide the matter on merit, and the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum conveniens., In Krishna Veni Nagam (supra), the Supreme Court held that the doctrine of forum non conveniens can be applied to advance the interests of justice, allowing the court to stay proceedings at a forum that is not convenient when another forum is more appropriate. The Court referred to the Spiliada Maritime case, emphasizing that the forum with the most real and substantial connection in terms of convenience, expense, availability of witnesses, governing law, and location of parties should be chosen., In Kusum Ingots & Alloys Ltd. (supra) and Krishna Veni Nagam (supra), the Supreme Court held that the plaintiff or petitioner does not have exclusive discretion to choose jurisdiction when the cause of action lies in multiple places. In appropriate cases, the Court can exercise its inherent jurisdiction and fix jurisdiction taking into consideration the convenience of parties, witnesses, the Court, and other relevant factors., No doubt the petitioner is master of his petitions. Where jurisdiction partially falls in Lucknow, a petition can be filed there. However, in the present matter the petitioner repeatedly chose to file petitions at Allahabad, some of which remain pending there. This fact ought to have been disclosed in the very first paragraph of his writ petition, which it was not. Moreover, under Clause 14 of the United Provinces High Court (Amalgamation) Order, 1948, petitions can be transferred by the Chief Justice sitting at Lucknow to Allahabad, but cannot be transferred from Allahabad to Lucknow, nor can any court summon them. Matters at Allahabad can only be heard at Allahabad, creating a unique difficulty for the Lucknow Bench of the Allahabad High Court in summoning records., Thus, in this peculiar situation, once the petitioner chooses between Lucknow or Allahabad for filing his petitions, that choice becomes a judicial discipline that must be followed in later petitions, if any. In the absence of such consistency, it becomes difficult for the Courts at Allahabad and Lucknow to have all matters together and decide them uniformly. The petitioner, in the garb of his power to choose forum, cannot cause inconvenience to the Court and keep the list pending unnecessarily in a bifurcated manner., These types of disputes are frequently occurring before this Court. The difficulty faced by the Court, where a case cannot be transferred from Allahabad to Lucknow while it can be transferred from Lucknow to Allahabad only when the Chief Justice of the High Court sitting at Lucknow passes an order under Clause 14 of the United Provinces High Court (Amalgamation) Order, 1948, creates an unnecessary hurdle in disposal of cases if jurisdiction is changed by the parties. This needs to be solved., Merely because the petitioner has a right to file a writ petition before any court of his choice, either at Allahabad or Lucknow, it does not give him a kangaroo right to hop around jurisdiction on whims. It is not only his convenience that is to be considered, but also the convenience of all related parties, including the Court. The facts of this case are a glaring example of the same, and the difficulty being faced by this Court is created by the petitioner alone., A party may invoke the jurisdiction of the Lucknow Bench of the Allahabad High Court either at Allahabad or at Lucknow, and once that choice is exercised, parties should restrict themselves to their initial choice of forum while filing later petitions. Hopping around forums would be highly inconvenient to the working of the Court. Once a petitioner chooses a jurisdiction, he should stick with the same unless he can provide cogent reasons for changing it. In the present case the petitioner has not provided any such reasons., In view thereof, the writ petition is dismissed with liberty to the petitioner to file the same at Allahabad.
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Against the Order dated 20 December 2012 in Complaint No. 20 of 2011 of the State Consumer Disputes Redressal Commission, Haryana, this appeal is filed. The appellant is Mr. Praveen Kumar Aggarwal, Advocate. The respondents are: Respondent No. 1 and 2 – Mr. S. Hari Haran, Advocate; Respondent No. 3 to 5 – NEMO. Dated 10 June 2021., This appeal has been filed under Section 19 of the Consumer Protection Act, 1986, challenging the Order dated 20 December 2012 in Consumer Complaint No. 20 of 2011 passed by the State Consumer Disputes Redressal Commission, Haryana. The appellants, Mrs. Kamla Devi and Mr. Rajesh Bansal, the widow and son of the deceased assured, were the complainants before the State Commission. The respondents No. 1 and 2, TATA AIG Life Insurance Corporation Ltd. and its Branch Manager, were the opposite parties No. 1 and 2 before the State Commission. The respondent No. 3, Mr. Raj Kumar, Agent of the Insurance Company, was the opposite party No. 3 before the State Commission. The respondents No. 4 and 5, Mr. Mukesh Bansal and Mr. Sandeep Bansal, sons of the deceased assured, were the opposite parties No. 4 and 5 before the State Commission., Arguments were heard from learned counsel for the complainants and the learned counsel for the Insurance Company and the material on record, including the impugned Order dated 20 December 2012 of the State Commission and the Memorandum of Appeal, was perused. Brief facts, shorn of unnecessary rhetoric, are that the late Shri Jai Prakash, the life assured, husband and father of the complainants, had obtained four insurance policies from the Insurance Company through its agent. He met an unnatural death on 4 January 2010 when he was run over by a moving train while crossing railway tracks. The Insurance Company did not query three of the four policies. In respect of the fourth policy, the subject policy, it objected to the claim on the ground that the death was not accidental but a case of suicide, falling under the exceptions to the policy, and declined the claim., The first argument made by the Insurance Company was that the other three policies were concealed while taking the fourth policy, i.e., the subject policy. The subject policy was taken through the same agent. The details of the other three policies were in the records of the Insurance Company. The State Commission placed reliance on the Commission’s judgment rendered in Revision Petition No. 4502 of 2010 of the Life Insurance Corporation of India decided on 6 July 2011. That judgment, inter alia, quoted the Honorable Supreme Court’s judgment in M/s Modern Insulators Ltd. v. Oriental Insurance Co. Ltd., concluding that the non‑disclosure of the previous policies by the life assured is not fatal to the claim of the complainants. The fourth policy, the subject policy, was taken through the same agent from the same Insurance Company; the details of the other three policies were in the records of the Insurance Company; there is not an iota of evidence to suggest any concealment on the part of the life assured. The facts of the instant case are covered by the Honorable Supreme Court’s judgment in M/s Modern Insulators Ltd. v. Oriental Insurance Co. Ltd. This Commission agrees with the appraisal and reasoning of the State Commission on this issue and endorses the State Commission’s findings that in the instant case non‑disclosure of the previous policies by the life assured is not fatal to the claim., The second argument made by the Insurance Company was that the life assured had committed suicide, which falls under the exception clause of the policy, and that it was not a case of accidental death. The State Commission, in its appraisal, principally relied on a medico‑legal opinion dated 19 January 2011 from Adroit Consultancy Medico‑Legal Services and concluded that the life assured had committed suicide and his death was not accidental. Based on the papers and documents submitted by the Insurance Company to this private agency, the agency concluded that the injuries on the deceased are possible only in cases of suicide death. The relevant portion of its opinion, quoted by the State Commission in its impugned Order, is reproduced below: Reconstruction of scene – considering the above facts it can be deduced as follows: the deceased must have laid himself between the tracks perpendicular to the tracks; repeated passing of wheels would have led to dragging, crushing and mutilation of the body with complete separation at the level of chest and upper abdomen from the lower body parts. Conclusion based on the facts mentioned in the documents submitted: such injuries are possible only in cases of suicide deaths. Therefore the claim is not payable as per the terms and conditions of the policy., DD No. 29 of 4 January 2010 at the GRP Police Station, the Inquest under Section 174 of the Criminal Procedure Code of 4 January 2010, the Post Mortem Report of 5 January 2010 and the Police Inquiry Report of 25 April 2010 are also on record as part of the evidence. The DD entry mentions, as per guard memo, that an unknown person was run over at km 79/6‑7 between RPHR and HSR; the dead body was lying on the track and the track was not clear. The Inquest states that the injury marks appear to be consistent with a train accident. The Post Mortem Report concludes that the possibility of these injuries being caused by a railway accident cannot be ruled out and is sufficient to cause death. The Police Inquiry Report concludes that, based on the depositions of witnesses and heirs of the deceased, the deceased Jai Prakash, while crossing the railway line in a hurry, might have fallen onto the tracks and was killed by an oncoming train. Therefore the cause of death due to a rail accident cannot be denied., The Post Mortem Report was made by the concerned government Medical Officer. The Police, after a site visit and recording the depositions of eyewitnesses, also concluded in its Inquiry Report that the cause of death due to a rail accident cannot be denied. There is nothing on record that the Insurance Company had questioned the other three policies regarding the fact that the death was accidental. It raised the objection of suicide principally on the basis of a medico‑legal report of a private agency prepared after about one year of the incident. The Inquest is conducted as mandated under the Criminal Procedure Code, the Post Mortem is conducted by the government Medical Officer, and the investigation is conducted by the Police; a private agency engaged by the Insurance Company does not substitute for the Police. There is no evidence on record that the life assured was under pecuniary difficulty, had family problems, or suffered psychological disorders. There is no evidence that the Insurance Company made a police complaint or filed a complaint before the competent judicial magistrate alleging a false case of accidental death for wrongful gain, nor that any remedial or disciplinary action was taken concerning the earlier three policies., In a case of unnatural death, where a DD entry is duly made, an Inquest is duly carried out, a Post Mortem is duly conducted, a private agency providing medico‑legal services does not wholly substitute for and replace investigation by the Police. In the instant case, there is nothing out of the ordinary or palpably erroneous in the investigation conducted by the Police that would justify placing principal reliance on the private agency’s report. Weighing the evidence in its totality, the eventuality of the death being accidental cannot be ruled out. In the facts of the case, the benefit of the preponderance of probability goes to the complainants. The State Commission erred in placing reliance principally on the report of a private agency engaged by the Insurance Company and ignoring the complete spectrum of evidence, especially the DD entry, Inquest, Post Mortem Report and Police Inquiry Report. This Commission does not agree with the appraisal and reasoning of the State Commission on this issue and does not endorse the State Commission’s findings that the death was due to suicide and not accidental., It is clear that the Insurance Company has wrongly withheld the claim in respect of the subject policy. It is also clear that there has been inconsistency and arbitrariness in decision‑making by the Insurance Company; in identical facts and the same points of law a different decision was taken with respect to the first three policies and a different decision was taken with respect to the fourth subject policy. The Insurance Company, through its chief executive, is directed to settle the claim of the subject policy with interest at the rate of 9 percent per annum from the date of filing of the complaint before the State Commission until realization, within a period of four weeks from today, failing which the State Commission shall undertake execution against the Insurance Company through its chief executive as per law., For the undue harassment and the loss and injury caused to the complainants and for the inconsistency and arbitrariness in decision‑making, a cost of Rupees 1 lakh is imposed on the Insurance Company through its chief executive, of which Rupees 50,000 shall be paid to the complainants and Rupees 50,000 shall be deposited in the Consumer Legal Aid Account of the State Commission within a period of four weeks from today, failing which the State Commission shall undertake execution against the Insurance Company through its chief executive as per law., The Insurance Company, through its chief executive, is also advised to inculcate systemic improvements for the future so that there is no inconsistency or arbitrariness in decision‑making in identical facts and the same points of law. The Registry is requested to send a copy of this Order to all parties and their learned counsel as well as to the chief executive of the Insurance Company and the State Commission within three days of its pronouncement. The stenographer is requested to upload this Order on the website of this Commission immediately.
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Sunil Kumar (Appellant) versus the State of Bihar and Another (Respondent). Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court of Judicature at Patna dated 17.08.2021 in Criminal Miscellaneous Application No. 13149 of 2021, by which the High Court released the respondent No.2, the original accused, on bail in connection with alleged case No. 328 of 2020 of Vaishali Police Station for offences under Sections 147, 148, 149, 341, 323, 324, 427, 504, 506, 307 and 302 of the Indian Penal Code and Section 27 of the Arms Act, the original informant, younger brother of the deceased, has preferred the present appeal., The appellant, the informant and younger brother of the deceased Shardanand Bhagat, lodged a First Information Report with the Vaishali Police Station against all the accused named in the FIR for the offences under Sections 147, 148, 149, 341, 323, 324, 427, 504, 506, 307 and 302 of the Indian Penal Code and Section 27 of the Arms Act for having assaulted them and killed his elder brother Shardanand Bhagat, who succumbed to bullet injuries. According to the prosecution, on the date of occurrence the accused Ramawatar Bhagat (respondent No.2) and other accused, armed with lethal weapons, came to the bamboo clumps of the informant and started cutting the bamboos. The informant’s brother Shardanand Bhagat went to forbid them. Ramawatar Bhagat ordered the killing of Shardanand Bhagat; Shardanand attempted to flee but was chased and surrounded by the accused. The co‑accused Manish Kumar fired upon him from his rifle, injuring Shardanand Bhagat, who fell down. When the informant went to save him, the co‑accused Rambabu Kumar fired twice at the informant, causing injuries to the informant as well. Subsequently, all the accused brutally assaulted the informant with lathi and danda. When co‑villagers assembled, the accused fled. Both injured persons were taken to Sadar Hospital, Hajipur, and thereafter referred to Patna Medical College Hospital for treatment., During the course of treatment, Shardanand Bhagat succumbed to the bullet injury, and consequently Section 302 of the Indian Penal Code was added. All the accused, including respondent No.2 Ramawatar Bhagat, were arrested. The bail application filed by respondent No.2 Ramawatar Bhagat was rejected by the Sessions Court, which observed that the respondent No.2 and the other accused formed an unlawful assembly and killed Shardanand Bhagat, and that the respondent No.2 actively participated in the heinous offence, thereby finding no case for bail., The respondent No.2 then approached the High Court of Judicature at Patna by way of an application under Section 439 of the Code of Criminal Procedure. The High Court, without assigning cogent reasons and without adequately considering the gravity and nature of the offence in which a person was killed, recorded that after hearing the submissions of the accused and the State, and considering the rival submissions as well as the facts and circumstances of the case, it was inclined to accept the submissions advanced by the petitioner’s counsel and allowed bail to the petitioner., Feeling aggrieved and dissatisfied with the impugned judgment and order releasing respondent No.2 on bail, the original informant, the younger brother of the deceased and an injured eyewitness, has preferred the present appeal., Shri Rituraj Choudhary, learned counsel appearing on behalf of the appellant, has vehemently submitted that the High Court of Judicature at Patna committed a grave error in releasing respondent No.2 on bail in a case where a person was killed. He submitted that the High Court assigned no reasons for the bail grant, merely stating that it was inclined to grant bail after considering the rival submissions and the facts and circumstances. He relied on the decisions of this Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (Koli) and others, (2021) 6 Supreme Court Cases 230, as well as Mahipal v. Rajesh Kumar, and the recent decision in Bhoopendra Singh v. State of Rajasthan & another (Criminal Appeal No. 1279 of 2021). He further submitted that the High Court did not consider the relevant considerations laid down by this Court in a catena of decisions, including the decision in Anil Kumar Yadav v. State (National Capital Territory of Delhi), (2018) 12 Supreme Court Cases. He also submitted that the High Court ignored the antecedents of the accused, treating the case of co‑accused Shashi Bhushan Bhagat, who was granted bail, as a parity, without appreciating the distinct features of the two cases. He highlighted that respondent No.2 is also an accused in a double murder case involving the murder of the informant’s father and younger brother, with the trial at the stage of recording evidence, and that the respondent is alleged to be pressuring the informant to withdraw the trial or turn hostile. He contended that these material aspects were not considered by the High Court while granting bail., Shri Devashish Bharuka, learned counsel appearing on behalf of the State, supported the appellant and submitted that after the investigation, respondent No.2 was charge‑sheeted for offences under Sections 147, 148, 149, 302, 34 and 447 of the Indian Penal Code for having murdered Shardanand Bhagat, the elder brother of the appellant. He submitted that the High Court ought not to have released respondent No.2 on bail in such a serious case involving an offence under Section 302 of the Indian Penal Code., Present appeal is vehemently opposed by Shri Atul Kumar, learned counsel appearing on behalf of respondent No.2. He submitted that having accepted the submissions on behalf of the accused and after considering all the facts, the High Court of Judicature at Patna released respondent No.2 on bail and that this decision should not be interfered with by this Court under Article 136 of the Constitution of India. He further submitted that respondent No.2 is a 70‑year‑old senior citizen suffering from various ailments and has no involvement in the alleged offences. He stated that the alleged involvement in two previous cases was not concealed from the Honorable Court and was discussed in the impugned order. He added that evidence in the other cases is almost complete, with only the doctor and the investigating officer remaining to be examined, and that in the earlier case the respondent was enlarged on bail without any allegation of misuse of liberty for 30 years. He prayed that the bail not be cancelled or the impugned judgment and order be interfered with., We have heard the learned counsel for the respective parties at length and have gone through the impugned judgment and order passed by the High Court of Judicature at Patna releasing respondent No.2 on bail. It is evident that the High Court assigned no reasons whatsoever while granting bail. After recording the submissions of the learned counsel for the accused and the State, the High Court merely observed that, considering the rival submissions as well as the facts and circumstances of the case, it was inclined to accept the submissions advanced by the petitioner’s counsel and allowed bail. No further reasoning was provided, nor was the gravity, nature and seriousness of the offences considered., In Mahipal (supra), while emphasizing the need to give brief reasons when granting bail, the Court observed that it is a sound exercise of judicial discipline for an order granting or rejecting bail to record the reasons which have weighed with the court. The assessment by the High Court is essentially contained in a single paragraph stating that, considering the contentions of the petitioner’s counsel and the facts and circumstances, the Court deems it just and proper to enlarge the petitioner on bail. The Court held that merely recording that the record has been perused does not subserve the purpose of a reasoned judicial order, and that judges must explain the basis on which they arrive at a conclusion., The Court further referred to Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 Supreme Court Cases 528, where a two‑Judge Bench held that the law on grant or refusal of bail is well settled and that an order granting bail must indicate reasons for prima facie concluding why bail is being granted, especially where the accused is charged with a serious offence, otherwise the order suffers from non‑application of mind. The Court also cited Ramesh Bhavan Rathod (supra), observing that while the High Court need not conduct a detailed evaluation of the merits, it cannot obviate its duty to apply a judicial mind and record brief reasons for the decision, as the outcome has a significant bearing on the liberty of the accused and the public interest., Applying the law laid down by this Court in the aforesaid decisions to the facts of the present case, and considering that respondent No.2 is a history‑sheeter with criminal antecedents, is involved in a double murder of the informant’s father and brother, the trial of those cases is at the crucial stage of recording evidence, and there are allegations of pressurising the informant and witnesses, the impugned judgment and order of the High Court of Judicature at Patna releasing respondent No.2 on bail is absolutely unsustainable and cannot stand. The High Court has not considered the gravity, nature and seriousness of the offences alleged., In view of the above, the present appeal succeeds. The impugned judgment and order passed by the High Court of Judicature at Patna releasing respondent No.2 on bail is hereby quashed and set aside. Respondent No.2 is directed to surrender before the concerned jail authority or the concerned court forthwith. The present appeal is accordingly allowed.
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L & T Finance Limited, a non‑banking finance company incorporated under the provisions of the Companies Act, 1956 and registered with the Reserve Bank of India as a non‑banking financial institution, having its registered office at 15th floor, PS Srijan Tech Park, Plot No. 52, Block DN, Sector‑V, Salt Lake City, Kolkata 700091 and corporate office at Brindavan, Plot No. 177, CST Road, Kalina, Santacruz (East), Mumbai 400098, is the petitioner. The State of Maharashtra, through the Assistant Government Pleader, High Court of Judicature at Bombay, the Chief Metropolitan Magistrate, Mumbai, the Additional Chief Metropolitan Magistrate, Mumbai, Office of the Chief Metropolitan Magistrate’s Court at Mumbai, and the Registrar General, Administration of the High Court of Judicature at Bombay, are respondents., TJSB Sahakari Bank Ltd., a co‑operative bank registered under the Multi‑State Co‑operative Societies Act, 2022, having its registered office at T.J.S.B. House, Plot No. B‑5, Road No. 2, Behind Aplab Lab, Wagle Industrial Estate, Thane (W), 400604, and its Pune Recovery Department at 692/693 Chapalkar Centre, Chapalkar Colony, Market Yard Road, Gymkhana, Pune‑411037, through its authorized officer Mr. Priyadarshan Dilip Dabir, is the petitioner. The District Collector and District Magistrate, District Pune, and the Executive Magistrate and Nayab Tehsildar, Taluka Haveli, Pune City, are respondents., The National Co‑operative Bank Ltd., located at 12‑B, Vastav House, 2nd floor, Janmabhoomi Marg, Fort, Mumbai 400001, is the petitioner. The State of Maharashtra and the Tehsildar, Panvel, District Raigad, are respondents., Mr. Dattatray Govind Jadhav, aged about years, residing at Flat No. 502, 5th floor, Maruti Villa Building, Plot No. 22, Gut No. 35, Near Pratik Gems Complex, Kamothe, Navi Mumbai, and Mr. Girish Bhimrao Chavan, aged 43 years, residing at 12/1, Sachin Society, Near Bank of Maharashtra, Mithagar Road, Mulund East, Mumbai 400081, are respondents., Mr. S. S. Panchpor with Mr. S. S. Agave appeared for the petitioner in Writ Petitions Nos. 278 and 279/23. Ms. Asha Bhuta, of Bhuta & Associates, appeared for the petitioner in OSWPL No. 3731/22. Dr. Birendra Saraf, Advocate General, with Mr. P. P. Kakade, Government Pleader, and Ms. Shruti D. Vyas, B‑Panel Counsel, appeared for the respondent State in Writ Petitions Nos. 15285/22, 278 and 279/23. Mr. S. R. Nargolkar appeared for Respondent Nos. 2 and 3 in Writ Petition No. 15285/2022. Mr. Himanshu Takke, Additional Government Pleader, appeared for Respondent Nos. 1 and 2 in OSWPL No. 3731/22. Mr. Graham Francis, on behalf of Samarth Moray, appeared for Respondent No. 4 in OSWPL No. 3731/22., Date: 17 April 2023. The rule is made returnable forthwith. Respondents waive service. The matter is taken up for disposal by consent of the parties., These petitions are filed by secured creditors who had applied under section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act). Since the applications have not been disposed of, the petitioners have filed these petitions for directions for early disposal. The petitioner in Writ Petition No. 15285/2022, L & T Finance Limited, a non‑banking finance company, made an application to the Chief Metropolitan Magistrate, Mumbai, on 22 December 2021. Writ Petitions Nos. 278 and 279/2023 are filed by the petitioner TJSB Sahakari Bank Ltd., and Writ Petition (L) No. 3731/2021 is filed by the petitioner The National Co‑operative Bank Ltd., the secured creditors, since their applications filed under section 14 of the SARFAESI Act are still pending. In Writ Petition (L) No. 3731/2021, the application under the SARFAESI Act is stated to be pending since the year 2016., The principal grievance of the petitioners is common: despite the power under section 14 of the SARFAESI Act of 2002 being ministerial and intended to aid secured creditors in taking steps to realise their dues expeditiously, the applications are kept pending for an unduly long period., With the similar grievance, several secured creditors kept filing writ petitions in this Court alleging authorities’ lethargy and reluctance to proceed under section 14 of the SARFAESI Act. Some petitioners accused borrowers of causing the delay. Consequently, we directed that such petitions be grouped together to direct the State Government and High Court administration to find a solution. Taking cognisance of this grievance, we earlier called upon the State Government to place data of the pending applications filed under section 14 of the SARFAESI Act of 2002 before various District Magistrates. In Writ Petition No. 15285 of 2022, the High Court administration was made a party respondent since the grievance was that the application under section 14 of the SARFAESI Act of 2002 is not being considered expeditiously by the Chief Metropolitan Magistrates., The Statement of Objects and Reasons for which the SARFAESI Act has been enacted reads as follows: The financial sector has been a key driver in India’s efforts to develop its economy rapidly. While the banking industry in India is progressively complying with international prudential norms and accounting practices, there are areas where the banking and financial sector do not have a level playing field compared to other participants in global financial markets. There is no legal provision for facilitating securitisation of financial assets of banks and financial institutions. Unlike international banks, Indian banks and financial institutions do not have power to take possession of securities and sell them. The existing legal framework relating to commercial transactions has not kept pace with changing commercial practices and financial sector reforms, resulting in slow recovery of defaulting loans and mounting non‑performing assets. The Narasimham Committee I and II and the Andhyarujina Committee, constituted by the Central Government to examine banking sector reforms, considered the need for changes in the legal system. These committees suggested enactment of new legislation for securitisation and empowering banks and financial institutions to take possession of securities and sell them without court intervention. Acting on these suggestions, the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Ordinance, 2002 was promulgated on 21‑06‑2002 to regulate securitisation, reconstruction of financial assets and enforcement of security interest. The provisions of the Ordinance enable banks and financial institutions to realise long‑term assets, manage liquidity, asset‑liability mismatches and improve recovery by exercising powers to take possession of securities, sell them and reduce non‑performing assets., Section 14 of the SARFAESI Act reads: Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. (1) Where the possession of any secured asset is required to be taken by the secured creditor or if any of the secured assets is required to be sold or transferred by the secured creditor under the provisions of this Act, the secured creditor may, for the purpose of taking possession or control of any such secured assets, request in writing the Chief Metropolitan Magistrate or the District Magistrate within whose jurisdiction any such secured asset or other documents relating thereto may be situated, to take possession thereof, and the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate shall, on such request being made to him, (a) take possession of such asset and documents relating thereto; and (b) forward such asset and documents to the secured creditor. Provided that any application by the secured creditor shall be accompanied by an affidavit duly affirmed by the authorised officer of the secured creditor, declaring that (i) the aggregate amount of financial assistance granted and the total claim of the bank as on the date of filing the application; (ii) the borrower has created security interest over various properties and that the bank or financial institution is holding a valid and subsisting security interest over such properties and the claim of the bank or financial institution is within the limitation period; (iii) the borrower has created security interest over various properties giving the details of properties referred to in sub‑clause (ii) above; (iv) the borrower has committed default in repayment of the financial assistance granted aggregating the specified amount; (v) consequent upon such default the account of the borrower has been classified as a non‑performing asset; (vi) the period of sixty days notice as required by sub‑section (2) of section 13, demanding payment of the defaulted financial assistance, has been served on the borrower; (vii) the objection or representation in reply to the notice received from the borrower has been considered by the secured creditor and reasons for non‑acceptance of such objection or representation have been communicated to the borrower; (viii) the borrower has not made any repayment of the financial assistance in spite of the above notice and the authorised officer is, therefore, entitled to take possession of the secured assets under sub‑section (4) of section 13 read with section 14 of the principal Act; (ix) the provisions of this Act and the rules made thereunder have been complied with. Provided further that on receipt of the affidavit from the authorised officer, the District Magistrate or the Chief Metropolitan Magistrate, as the case may be, shall, after satisfying the contents of the affidavit, pass suitable orders for the purpose of taking possession of the secured assets within a period of thirty days from the date of application. Provided also that if no order is passed by the Chief Metropolitan Magistrate or District Magistrate within the said period of thirty days for reasons beyond his control, he may, after recording reasons in writing, pass the order within such further period but not exceeding in aggregate sixty days. Provided also that the requirement of filing affidavit stated in the first proviso shall not apply to proceedings pending before any District Magistrate or the Chief Metropolitan Magistrate on the date of commencement of this Act., (1A) The District Magistrate or the Chief Metropolitan Magistrate may authorise any officer subordinate to him, (i) to take possession of such assets and documents relating thereto; and (ii) to forward such assets and documents to the secured creditor. (2) For the purpose of securing compliance with the provisions of sub‑section (1), the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use, or cause to be used, such force, as may, in his opinion, be necessary. (3) No act of the Chief Metropolitan Magistrate or the District Magistrate or any officer authorised by them done in pursuance of this section shall be called in question in any court or before any authority., In NKGSB Co‑operative Bank Ltd. v. Subir Chakravarty, the Supreme Court stressed that the statutory obligation imposed on the Chief Metropolitan Magistrate/District Magistrate is to move into action immediately after receipt of a written application under section 14(1) of the 2002 Act from the secured creditor. Upon receipt, the magistrate is expected to pass an order after verification of compliance of all formalities referred to in the proviso of section 14(1) and, being satisfied, to take possession of the secured assets and documents and forward them to the secured creditor at the earliest. This is a ministerial act and cannot be delayed. The Court noted that limited resources of the magistrates may make it difficult to fulfil the obligation with utmost dispatch., In R.D. Jain & Co. v. Capital First Ltd., the Supreme Court held that after taking over possession of the secured assets, further steps to lease, assign or sell the same may be taken by the secured creditor. Section 14 predicates that if the secured creditor intends to take possession, it must apply in writing to the Chief Metropolitan Magistrate/District Magistrate, who must then move into action, pass an order and proceed to take possession and forward the assets and documents in terms of section 14(1) read with section 14(2). Section 14(2) is an enabling provision permitting the magistrate to take such steps and use force as may be necessary., The insertion of sub‑section (1‑A) and a proviso in sub‑section (1) of section 14 requires the secured creditor to comply with certain conditions and disclose them by way of an application accompanied by an affidavit duly affirmed by its authorised officer. Sub‑section (1‑A) is an explanatory provision restating the implicit power of the Chief Metropolitan Magistrate/District Magistrate to take services of any subordinate officer. The Court observed that this insertion does not create a new power., It is explicit that possession of the secured assets can be taken by the secured creditor before confirmation of sale as well as post‑confirmation of sale. For taking possession, it may be done by the authorised officer of the bank as noted in Rule 8 of the Security Interest (Enforcement) Rules, 2002. However, for physical possession under section 14(1), the secured creditor must approach the Chief Metropolitan Magistrate/District Magistrate by written application requesting possession of the assets and documents to be forwarded for further action. The magistrate must act immediately after receipt, verify compliance, and forward the assets within the stipulated time., As mandated by section 14, the magistrate must pass a suitable order for taking possession within thirty days of the application, which may be extended but not exceeding a total of sixty days. The powers exercised are ministerial; delay is unacceptable., The step taken by the magistrate in taking possession is a ministerial step that may be performed by the magistrate himself or any subordinate officer, including an Advocate Commissioner. Section 14 does not oblige the magistrate to personally take possession, nor does it involve an adjudicatory function. The magistrate need only verify the information in the application., The Supreme Court reiterated this position in Balkrishna Rama Tarle v. Phoenix ARC (P) Ltd., Thus, the powers of the Chief Judicial Magistrate and the District Magistrate under section 14 of the SARFAESI Act are merely administrative and do not involve pronouncing any judgment on the borrower’s objections. Once the secured creditor has met all requirements, it is the duty of the magistrate to assist in obtaining possession with the help of any subordinate officer or appointed Advocate Commissioner. The magistrate does not need to adjudicate disputes; objections should be dealt with before the Debt Recovery Tribunal., During the hearing on 9 February 2023, it was revealed that approximately 7,563 applications were pending in Maharashtra under the SARFAESI Act, although this figure did not include data from all districts and could be higher. The Advocate General presented a chart showing 5,061 pending applications under section 14 before various District Magistrates, of which 1,139 were pending for three months, 1,100 for six months, and 2,822 for more than one year. The learned counsel for the High Court administration informed that in Mumbai alone, 2,502 applications were pending before Judicial Magistrates under section 14, of which 446 were pending for three months, 690 for six months, and 1,413 for more than one year. Therefore, the total pendency in Maharashtra, including Mumbai, was not less than 7,563., Once all requirements under section 14 are met, the District Magistrate/Chief Metropolitan Magistrate has a statutory obligation to promptly assist the secured creditor. Any delay is unacceptable as it defeats the legislative intent. Almost twelve years ago, in International Asset Reconstruction Company Private Limited v. Union of India, the Division Bench issued directives for serial numbering and time‑bound disposal of applications, but the situation remains unchanged., During the hearing, the Advocate General assured that the State Government would take efforts to clear all pending applications by 31 March 2023. The High Court administration initially planned a special drive in August 2023 but decided to commence it from 1 March 2023 given the gravity of the matter. The petitioners suggested certain measures, and the Advocate General advised them to forward their suggestions within a week, after which the State Government would consider incorporating them into the general guidelines. The statements were accepted. The hearing was adjourned to 17 March 2023. As an interim measure, we directed that where petitioners have a grievance regarding inaction, the District Collector should give them an audience, address their grievances, and issue necessary directions as per law., On 17 March 2023, counsel for the High Court administration presented a chart showing that in a special drive conducted from 9 February 2023, 536 applications were disposed of, but the pendency as of 10 March 2023 was 4,975, with Thane accounting for 1,064. The Advocate General also placed a chart with revised figures stating that as of that day, 21,564 applications were pending in Maharashtra, and 12,590 had been disposed of. Several petitions from the group were disposed of as their cause was worked out, but we continued hearing these petitions as the State had yet to submit guidelines for passing general directions., Today, the Advocate General placed before us the guidelines issued by the State Government by way of a circular dated 10 April 2023. The circular states: (i) All applications pending as on 31 March 2023 should be disposed of not later than 30 April 2023. (ii) All pending implementations of orders passed prior to 31 March 2023 should be completed by 30 April 2023. (iii) Any fresh application filed after 31 March 2023 under section 14 should be disposed of by the District Collector within 30 days of filing. (iv) Every order passed by the District Collector under section 14 should be implemented and executed within four weeks of the order. If officers are overburdened, an advocate may be appointed to implement the order in accordance with the Supreme Court judgment in NKGSB Co‑operative Bank Ltd. v. Subir Chakravarty. (v) In the first week of each month, a report should be submitted to the Divisional Commissioner detailing any application not disposed of within 30 days or any order not implemented within 30 days, with reasons. (vi) Any party whose application is not disposed of within 60 days of filing or whose order is not implemented within 60 days may make a representation to the Divisional Commissioner, who shall consider it within 15 days and pass appropriate directions to ensure disposal or implementation within 15 days. (vii) Each District Collector should maintain proper details and records of filings, disposals and implementations under section 14 and submit monthly statistics to the Divisional Commissioner on or before the 7th day of the following month. (viii) An e‑system is being implemented to upload all information regarding filing dates, order dates and implementation dates, which will be regularly updated., We appreciate the initiative taken by the Advocate General, which has resulted in the State issuing the guidelines dated 10 April 2023. The guidelines will assist in the expeditious disposal of applications and reduce the inflow of petitions by secured creditors, as they now provide a time mandate and grievance redressal forum, eliminating the need for direct writ petitions in this Court., The petitioners submitted that orders under section 14 often go unimplemented due to unavailability of police support. While we cannot issue general directions for every situation, we observe that police authorities should assist in implementation speedily, as far as feasible. The implementation of the e‑system, as stated in clause (viii) of the circular, will improve transparency and efficiency and keep all parties informed about pending applications. This initiative should be implemented within sixteen weeks., The learned counsel for the High Court administration stated that currently there is no separate category for applications under section 14 in the Case Information System software. Steps can be taken to create a separate category so they can be identified for the special drive. The counsel also mentioned exploring options to issue necessary instructions to facilitate e‑filing and the creation of a portal within the existing CIS. It was also submitted that a special day can be assigned by the Chief Metropolitan Magistrate for taking up pending applications. Initiatives will be taken pursuant to this position., In view of the circular and the statement of the High Court administration, which we accept, we intend to issue certain directions. It is needless to stress the importance of expeditious disposal of applications under section 14, as the pendency hinders recovery of bad loans, impacting the financial health of the country., Thus, we dispose of these writ petitions directing as follows: (a) An application filed by a secured creditor under section 14 of the SARFAESI Act with due compliance should be disposed of by the District Magistrate/Collector in the State of Maharashtra not later than thirty days from filing. (b) Every order passed by the District Collector under section 14 should be implemented and executed not later than four weeks from the passing of the order. (c) If officers entrusted with implementation are engaged in other pressing public duties, the option of appointing an advocate to implement the order may be explored within the parameters of the law. The same option can also be considered by the Judicial Magistrate, if permissible in law.
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The District Magistrates/Collectors shall submit a report giving the details of the applications which have not been disposed of within thirty days or any order which has not been implemented within thirty days with reasons thereof to the Divisional Commissioner in the first week of each month., Any party whose application is not disposed of within sixty days of its filing or the order has not been implemented within sixty days of passing it may make representation to the Divisional Commissioner who shall, within fifteen days of receipt of the representation, consider the representation and, after satisfying that there is no justifiable reason, will pass appropriate directions to ensure that the application is disposed of or the order is implemented within fifteen days of the direction., Each District Magistrate/Collector shall maintain proper details and records of the filing of the applications, the disposal thereof, the implementation of the orders and submit monthly statistics in that regard to the Divisional Commissioner on or before the seventh day of the following month in the specified format of submissions., The State Government will take steps to implement an e‑system placing information on an online platform regarding the applications, such as the date of filing of the application, the date of passing the order on the application, and the date of implementation of the order, on an online platform. The same shall be done within a period of sixteen weeks from today., The High Court of India Administration would consider issuing necessary directions to the Chief Metropolitan Magistrate to take a special drive for the disposal of pending applications under Section 14 of the SARFAESI Act., The High Court of India Administration would consider creating a separate category in the Case Information System software for the applications under Section 14 of the SARFAESI Act so that these cases can be identified for the special drive., We make it clear that the above directions are to streamline the process of disposal of the applications filed under Section 14 of the SARFAESI Act and to effectuate the intent of the governing legislation. This order is not to be construed as in any manner modifying the inter se legal rights of the secured creditors, the borrowers, guarantors and other affected parties., Rule is made absolute in the above terms of the order.
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By way of these transfer petitions filed under Section 406 of the Code of Criminal Procedure, Yogesh Upadhyay and his proprietary concern, Messrs Shakti Buildcon, seek transfer of Supreme Court Cases Nos. 25668/2019 and 26875/2019, both titled Atlanta Limited versus Messrs Shakti Buildcon and Another, pending before the learned Twenty‑second Joint Civil Judge, Senior Division, Nagpur, and the learned Twentieth Civil Judge, Senior Division, Nagpur, respectively, to the South West District Courts, Dwarka, New Delhi, to be tried along with Complaint Case Nos. 42489/2019, 1464/2020, 7596/2020 and 4094/2020, all titled Atlanta Limited versus Yogesh Upadhyay. These six complaint cases were filed against the petitioners by Atlanta Limited, the respondent herein, under Sections 138 and 142 of the Negotiable Instruments Act, 1881 (the Act)., The six cheques, which are the subject‑matter of these complaint cases, were issued by the petitioners in connection with purchase of a NAWA‑make crusher plant from the respondent company for a sum of 1,88,80,000 rupees, under an agreement dated 04 June 2019. This sale consideration was to be paid in seven installments by way of cheques. The first cheque issued by the petitioners for a sum of 11,80,000 rupees was duly honoured upon presentation by the respondent company. The remaining six cheques, however, were dishonoured on the strength of stop‑payment instructions. The first two cheques that were dishonoured were presented by the respondent company through its bank at Nagpur, Maharashtra. Consequently, the first two complaint cases were filed before the courts at Nagpur, Maharashtra. The remaining four cheques were thereafter presented by the respondent company through its bank at New Delhi and, in consequence, those complaint cases were filed before the Dwarka Courts, New Delhi., Mr Rajmangal Kumar, learned counsel appearing for the petitioners, would contend that as all the cheques relate to the same transaction, it would be proper and appropriate that the cases pertaining to their dishonour are tried and decided together. He would rely on case law to support his contention., On the other hand, Mr Chirag M. Shroff, learned counsel for the respondent company, would contend that Section 142 of the Act would override Section 406 of the Code of Criminal Procedure, in view of the non obstante clause therein, and that the two cases filed at Nagpur, Maharashtra, therefore cannot be transferred. Further, he would assert that Section 142(2) of the Act confers exclusive jurisdiction upon the courts at Nagpur in so far as the first two complaint cases are concerned. He would also place reliance on case law., It is now well settled that the offence under Section 138 of the Act is complete upon dishonour of the cheque but prosecution in relation to such offence is postponed, by virtue of the provisos therein, till the failure of the drawer of the cheque to make the payment within fifteen days of receiving the demand notice. However, jurisdiction to try this offence remained a troublesome issue for a long time., In K. Bhaskaran versus Sankaran Vaidhyan Balan and another [(1999) 7 SCC 510], the Supreme Court of India held that an offence under Section 138 of the Act has five components: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning of the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, and (5) failure of the drawer to make payment within fifteen days of the receipt of the notice. It was further held that the courts having jurisdiction over the territorial limits wherein any of the five acts, that constitute the components of the offence, occurred would have the jurisdiction to deal with the case and if the five acts were done in five different areas, any one of the courts exercising jurisdiction in those five areas would have jurisdiction and the complainant could choose any one of those courts., Thereafter, in Dashrath Rupsingh Rathod versus State of Maharashtra and another [(2014) 9 SCC 129], a three‑judge bench of the Supreme Court of India observed that the return of the cheque by the drawee bank would alone constitute commission of the offence under Section 138 of the Act and would indicate the place where the offence is committed. It was therefore held that the place, situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located, i.e., where the cheque is dishonoured upon presentation and not where the complainant’s bank is situated., In this regard, it may be noted that Section 142 of the Act, titled Cognizance of Offences, provides that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no court shall take cognizance of an offence punishable under Section 138 except on a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque; such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138; and no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try an offence punishable under Section 138., Significantly, the original Section 142 of the Act was renumbered as Section 142(1) when amendments were made by the Negotiable Instruments (Amendment) Act, 2015 (Act 26 of 2015). Further, Section 142(2) was inserted in the statute book along with Section 142‑A. The newly inserted Section 142(2), to the extent relevant, states that the offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction – (a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated., This being the statutory scheme, stress is laid by Mr Chirag M. Shroff, learned counsel, upon the words “shall be inquired into and tried only by a court within whose local jurisdiction” in Section 142(2) to contend that the courts at Nagpur would have exclusive jurisdiction in relation to the dishonoured cheques presented by the respondent company through its bank at Nagpur., Perusal of the Statement of Objects and Reasons in Amendment Act 26 of 2015 makes it amply clear that insertion of Sections 142(2) and 142‑A in the Act was a direct consequence of the judgment of the Supreme Court of India in Dashrath Rupsingh Rathod. Therefore, the use of the phrase “shall be inquired into and tried only by a court within whose local jurisdiction” in Section 142(2) of the Act is contextual to the ratio laid down in Dashrath Rupsingh Rathod, whereby territorial jurisdiction to try an offence under Section 138 of the Act vested in the court having jurisdiction over the drawee bank and not the complainant’s bank where he had presented the cheque. Section 142(2) now makes it clear that the jurisdiction to try such an offence would vest only in the court within whose jurisdiction the branch of the bank where the cheque was delivered for collection, through the account of the payee or holder in due course, is situated. The newly inserted Section 142‑A further clarifies this position by validating the transfer of pending cases to the courts conferred with such jurisdiction after the amendment., The later decision of the Supreme Court of India in Bridgestone India Private Limited versus Inderpal Singh [(2016) 2 SCC 75] affirmed the legal position obtaining after the amendment of the Act and endorsed that Section 142(2)(a) of the Act vests jurisdiction for initiating proceedings for an offence under Section 138 in the court where the cheque is delivered for collection, i.e., through an account in the branch of the bank where the payee or holder in due course maintains an account. This Court also affirmed that Dashrath Rupsingh Rathod would not non‑suit the company insofar as territorial jurisdiction for initiating proceedings under Section 138 of the Act was concerned., Therefore, institution of the first two complaint cases before the courts at Nagpur is in keeping with the legal position obtaining now. However, the contention that the non obstante clause in Section 142(1) of the Act would override Section 406 of the Code of Criminal Procedure and that it would not be permissible for the Supreme Court of India to transfer the said complaint cases, in exercise of power thereunder, cannot be countenanced. It may be noted that the non obstante clause was present in the original Section 142 itself and was not introduced by way of the amendments in 2015, along with Section 142(2). The clause merely refers to the manner in which cognizance is to be taken in offences under Section 138 of the Act, as a departure has to be made from the usual procedure because prosecution for the said offence stands postponed despite commission of the offence being complete upon dishonour of the cheque and it must necessarily be in terms of the procedure prescribed. The clause, therefore, has to be read and understood in the context for which it is used and it does not lend itself to the interpretation that Section 406 of the Code of Criminal Procedure would stand excluded vis‑vis offences under Section 138 of the Act. The power of the Supreme Court of India to transfer pending criminal proceedings under Section 406 of the Code of Criminal Procedure does not stand abrogated thereby in respect of offences under Section 138 of the Act. It may be noted that this Court exercised power under Section 406 of the Code of Criminal Procedure in relation to offences under Section 138 of the Act even during the time the original Section 142 held the field. In A.E. Premanand versus Escorts Finance Ltd. and Others [(2004) 13 SCC 527], the Supreme Court of India took note of the fact that the offences therein, under Section 138 of the Act, had arisen out of one single transaction and found it appropriate and in the interest of justice that all such cases should be tried in one court. We, therefore, hold that, notwithstanding the non obstante clause in Section 142(1) of the Act, the power of the Supreme Court of India to transfer criminal cases under Section 406 of the Code of Criminal Procedure remains intact in relation to offences under Section 138 of the Act, if it is found expedient for the ends of justice., In the case on hand, as the six complaint cases pertain to the same transaction, it would be advisable to have a common adjudication to obviate the possibility of contradictory findings being rendered in connection therewith by different courts. As four of the six cases have been filed by the respondent company before the Dwarka Courts at New Delhi and only two such cases are pending before the courts at Nagpur, Maharashtra, it would be convenient and in the interest of all concerned, including the parties and their witnesses, that the cases be transferred to the Dwarka Courts at New Delhi., The transfer petitions are accordingly allowed and Supreme Court Cases Nos. 25668/2019 and 26875/2019, both titled Atlanta Limited versus Messrs Shakti Buildcon and Another, pending on the files of the learned Twenty‑second Joint Civil Judge, Senior Division, Nagpur; and the learned Twentieth Civil Judge, Senior Division, Nagpur, respectively, are transferred to the South West District Courts, Dwarka, New Delhi, to be tried along with Complaint Case Nos. 42489/2019, 1464/2020, 7596/2020 and 4094/2020.
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Court Cases 1137/2022 24.11.2022 Present: Shri Anish Dhingra, lead Senior Police Prosecutor for the complainant. Submissions on the complaint were heard on earlier occasions. Entire material available on record has been perused. The present complaint under section 200 of the Criminal Procedure Code is filed by the Income Tax Officer through Mr. Amitabh Mishra, Deputy Director of Income Tax, Unit 7(2), Delhi, alleging commission of offence under sections 276C(1), 277, 277A, 278, 278B of the Income Tax Act, 1961 (hereinafter referred to as \the Act\) and section 120B of the Indian Penal Code for Assessment Year 2019-20. Since the complaint is filed through Mr. Amitabh Mishra who signed and made the same for the Income Tax Officer in discharge of his official duty as a public servant, his examination was dispensed with in accordance with section 200 proviso (a) of the Criminal Procedure Code., The case of the complainant is that accused no. 1 is an alternate news media platform, accused no. 2 Abhinandan Sekhri is its Managing Director and Chief Executive Officer, accused no. 3 Roopak Kapoor is the director of accused no. 1. Accused no. 4 Nitin Mittal and Co. is a Chartered Accountant partnership firm engaged by accused no. 1 for valuation of its shares. Accused no. 5 Nitin Mittal is the managing partner of accused no. 4 who carried out the valuation on behalf of accused no. 4. Accused no. 6 Chandra Shekhar is the independent statutory auditor of accused no. 1., The gravamen of accusation against the accused is that in Assessment Year 2019-20 accused no. 1 issued 22,994 shares to co‑founder Ms. Madhu Trehan at Rs.1,185.07 per share and received Rs.2,72,49,499 as share application money. Similarly, 2,110 shares were issued to Vikram Lal at Rs.1,185.07 per share and share application money of Rs.25,00,497 was received. It is alleged that despite the company incurring losses from Assessment Year 2016-17 to Assessment Year 2020-21, the independent valuer, in collusion with the company and its directors, prepared a bogus valuation report showing the fair value of each share as Rs.1,185.07 whereas the net worth of accused no. 1 was negative. It is also alleged that the auditor of accused no. 1 did not point out this illegality and signed the financial accounts of accused no. 1 only to help the company perpetrate the alleged fraud. According to the complainant, the entire aggregate amount received in Assessment Year 2019-20 from the sale of these shares is to be treated as income/revenue of accused no. 1 under section 56(2)(viib) of the Act, and not as capital. All the accused persons are alleged to have conspired with each other, and hence the present complaint is filed under sections 276C(1), 277, 277A, 278, 278B of the Income Tax Act, 1961 read with section 120B of the Indian Penal Code., At this juncture, it is profitable to reproduce in verbatim Section 276C of the Act which reads as: 276C. Wilful attempt to evade tax, etc. (1) If a person wilfully attempts in any manner whatsoever to evade any tax, penalty or interest chargeable or imposable under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable, (i) in a case where the amount sought to be evaded exceeds one hundred thousand rupees, with rigorous imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine; (ii) in any other case, with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and with fine. (2) If a person wilfully attempts in any manner whatsoever to evade the payment of any tax, penalty or interest under this Act, he shall, without prejudice to any penalty that may be imposable on him under any other provision of this Act, be punishable with rigorous imprisonment for a term which shall not be less than three months but which may extend to three years and shall, in the discretion of the court, also be liable to fine. Explanation: For the purposes of this section, a wilful attempt to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof shall include a case where any person (i) has in his possession or control any books of account or other documents (being books of account or other documents relevant to any proceeding under this Act) containing a false entry or statement; or (ii) makes or causes to be made any false entry or statement in such books of account or other documents; or (iii) wilfully omits or causes to be omitted any relevant entry or statement in such books of account or other documents; or (iv) causes any other circumstance to exist which will have the effect of enabling such person to evade any tax, penalty or interest chargeable or imposable under this Act or the payment thereof., Interpreting section 276C of the Act, the Apex Court in Prem Dass v. Income Tax Officer (1999) 5 SCC 241 held: 8. Willful attempt to evade any tax, penalty or interest chargeable or imposable under the Act under Section 276C is a positive act on the part of the accused which is required to be proved to bring home the charge against the accused. Similarly, a statement made by a person in any verification under the Act can be an offence under Section 277 if the person making the same either knew or believed the same to be false or does not believe it to be true. Necessary mens rea, therefore, is required to be established by the prosecution to attract the provisions of Section 277., The Karnataka High Court in the case of M/s Vyalikaval House Building Cooperative Society Limited and Others v. The Income Tax Department (2019) 267 Taxmann 81 elaborated on the scope and ambit of section 276C of the Act in the following words: 8. What is made punishable under this Section is an \attempt to evade tax, penalty or interest\ and not the actual evasion of tax. \Attempt\ is nowhere defined in the Act or in the Indian Penal Code. In legal echelons \attempt\ is understood as a \movement towards the commission of the intended crime\. It is doing \something in the direction of commission of offence\. Viewed in that sense, in order to render the accused guilty of \attempt to evade tax\ it must be shown that he has done some positive act with an intention to evade tax. Upon perusal of the above cited judgments, it is clear that a positive action or movement towards the intended crime by the accused has to be pleaded and proved in order to substantiate the allegations of wilful attempt to evade tax etc., In the decision of Tamil Nadu Housing Board v. Collector of Central Excise, Madras & Ors. MANU/SC/0852/1995 the Apex Court eloquently explained the difference between evasion and mere failure in the following manner: 3. When the law requires an intention to evade payment of duty then it is not mere failure to pay duty, it must be something more. That is, the assessee must be aware that the duty was leviable and must deliberately avoid paying it. The word 'evade' in the context means defeating the provision of law of paying duty. It is made more stringent by use of the word 'intent'. In other words the assessee must deliberately avoid payment of duty which is payable in accordance with law., The Apex Court in Aban Lloyd Chiles Offshore Limited and Ors. v. Commissioner of Customs, Maharashtra MANU/SC/3559/2006 held that the word wilful clearly spells out that there has to be an intention., In the case of Solar Paper Mills Limited and Ors. v. The State MANU/TN/0972/2022, the Madras High Court made the following observation about the explanation contained in section 276C of the Act: 10. The above explanation further makes it clear that if any of the circumstances narrated in the explanation is unearthed or made by the accused then such conduct certainly will fall within the ambit of wilful attempt to evade any tax or penalty. The fact remains that in the returns filed by the accused, there was no suppression of facts. He has set out the value of the property sold and claimed only exemption based on the circular which also indicates that the land areas up to the distance of five kilometres in all directions from the municipality of Chengalpet are agricultural properties. Based on the above circular, the return has been filed. Therefore, in any event, claiming exemption based on the circular orders issued from time to time by the Central Government by way of notification, such act cannot be construed to mean a wilful attempt in any manner whatsoever to evade income tax or payment of tax or penalty., 11. It is not disputed that the petitioners also challenged the initiation of the penalty before the commissioner and the appellate tribunal which went against them. It is also relevant to note that the tax determined by the assessing authorities for a sum of Rs.39,05,711 was paid by the petitioners on 20.01.2009. In the meantime, the penalty proceedings were initiated by the Department and a sum of Rs.29,36,675 was imposed on the petitioner. After the dismissal of the appeal, the Show Cause Notice was issued by the Department on 22.06.2017 for demanding the penalty imposed on them. Pursuant to the Show Cause Notice, the penalty imposed was also paid by the assessee. Such payments were made before filing of prosecution before the Courts. As far as the tax is concerned, it was paid on 20.01.2009 and the penalty was paid subsequent to the Show Cause Notice. Yet the complaint proceeds as if the tax and penalty remain unpaid. This indicates that there was no wilful attempt whatsoever to evade the tax or payment of tax. The respondent mechanically filed the complaint without ascertaining whether the amount of tax had been paid. As per the admitted facts, tax as well as penalty were paid well before the initiation of the prosecution., 12. As indicated above, to prosecute a person for the offence under Section 276C(1), there must be a wilful attempt by the accused to evade tax or payment of tax. Therefore, merely because an exemption was claimed based on the Board circular, sale of property shown as agricultural property pursuant to such circular does not constitute a wilful attempt. Section 276C(2) of the Act was interpreted by the Madras High Court in Kewalchand M. Kothari v. Deputy Commissioner of Income Tax, Central Circle‑1(1) MANU/TN/5896/2020 as follows: 6. For the provision to punish the accused, there must be a wilful attempt to evade payment of tax; the accused must be in possession of books with false entries, must have made false entries in the books of accounts and must have omitted any entry in the statement of accounts. The petitioner voluntarily disclosed the undisclosed income to the respondent on inspection conducted under section 132 of the Income Tax Act, 1961 on 18.12.2012. Therefore, there is no intention on the part of the petitioner to wilfully evade payment of tax., The explanation contained in section 276C of the Act is inclusive and not exhaustive but gives insight into the legislature's intention. An argument was advanced on behalf of the complainant that at this stage of proceedings the culpable mental state of the accused is to be presumed under section 278E of the Act. This argument was comprehensively dealt with in the judgment of the Kerala High Court in M/s Forzza Projects Private Limited & Others v. PCIT & Another (2021) 127 Taxmann 259 (Kerala): 7. Yet another argument was advanced based on the deeming provision – Section 278E of the Income Tax Act regarding the presumption as to existence of culpable mental state in a prosecution for any offence under the Act. It was argued that any failure or non‑payment of tax, penalty or interest must always be construed with the application of Section 278E by presuming a culpable mental state, and even an act of failure would satisfy the necessary mens rea by virtue of the presumption, though it is rebuttable, relying on Prakash Nath Khanna and Ors. v. Commissioner of Income Tax and Ors. (2004) 266 ITR 1 = (2004) 9 SCC 686. 8. Section 278E is extracted below for reference: \278E – Presumption as to culpable mental state – (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove that he had no such mental state with respect to the act charged as an offence. Explanation – In this sub‑section, ‘culpable mental state’ includes intention, motive or knowledge of a fact, or belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.\, 9. A ‘culpable mental state’ that can be presumed under Section 278E of the Act comes into play only in a prosecution for an offence that requires such a mental state. Section 278E is a rule of evidence regarding mens rea, drawing a rebuttable presumption. It does not apply where the basic requirements constituting the offence are not disclosed. The presumption can be applied only when the basic ingredient of the offence is disclosed. Hence there is no scope for applying the rebuttable presumption under Section 278E in the instant case., 10. In Prakash Nath Khanna's case the criminal liability under Section 276C of the Act arises from wilful failure to furnish a return. The term ‘failure’ in Section 276C relates to the submission of assessment and return and cannot be equated with failure to pay tax on time. A mere failure to pay the amount due (tax, interest or penalty) does not satisfy the requirement for an offence under Section 276C(2) of the Income Tax Act. Consequently, the crime registered and further proceedings are of no purpose and are quashed., Section 276C(1) of the Act deals with wilful attempt to evade tax. Firstly, there was no attempt to evade tax; the complainant does not allege that accused no. 1 failed to disclose the allotment of shares at premium in its accounts or financial statements, nor that there was any wrong entry in the books of accounts, balance sheet or income‑tax return. The wilful attempt must be one of the acts mentioned in the explanation to section 276C or a similar act. No actus reus is attributable to accused no. 1. If the complainant wishes to treat a capital receipt as revenue receipt, it may pass an assessment order adding to the income of accused no. 1 for the relevant financial year and issue a notice of demand. All information relied upon by the complainant is supplied by the accused and disclosed in the books of accounts. Different views on revenue versus capital receipt do not amount to a wilful attempt to evade tax. Even a tax exemption wrongly claimed in good faith would not attract section 276C., It is worthwhile to refer to section 56(2) clause (viib) of the Act which reads: Sec. 56 Income from other sources. (1) (2) In particular, and without prejudice to the generality of the provisions of sub‑section (1), the following incomes shall be chargeable to income‑tax under the head ‘Income from other sources’, namely: (viib) where a company, not being a company in which the public are substantially interested, receives, in any previous year, from any resident person, any consideration for issue of shares that exceeds the face value of such shares, the aggregate consideration received for such shares exceeds the fair market value of the shares: Provided that this clause shall not apply where the consideration for issue of shares is received (i) by a venture capital undertaking from a venture capital company, venture capital fund or a specified fund; or (ii) by a company from a class or classes of persons as may be notified by the Central Government. Further, where the provisions of this clause have not been applied to a company because of fulfilment of conditions specified in the notification and such company fails to comply with any of those conditions, then any consideration received for issue of shares that exceeds the fair market value shall be deemed to be the income of that company chargeable to income‑tax for the previous year in which such failure occurred and shall also be deemed that the company has under‑reported the said income in consequence of the misreporting referred to in subsections (8) and (9) of section 270A. Explanation. For the purposes of this clause, (a) the fair market value of the shares shall be the value (i) as may be determined in accordance with such method as may be prescribed; or (ii) as may be substantiated by the company to the satisfaction of the Assessing Officer, based on the value, on the date of issue of shares, of its assets, including intangible assets such as goodwill, know‑how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, whichever is higher; (aa) ‘specified fund’ means a fund established or incorporated in India in the form of a trust, company, limited liability partnership or body corporate which has been granted a certificate of registration as a Category I or Category II Alternative Investment Fund and is regulated under the Securities and Exchange Board of India (Alternative Investment Fund) Regulations, 2012 made under the SEBI Act, 1992; (ab) ‘trust’ means a trust established under the Indian Trusts Act, 1882 or any other law then in force; (b) ‘venture capital company’, ‘venture capital fund’ and ‘venture capital undertaking’ shall have the meanings assigned to them in the Explanation to clause (23FB) of section 10., Perusal of this section shows that the fair market value of the shares shall be the higher of the value determined in accordance with the prescribed method or the value substantiated by the company to the satisfaction of the Assessing Officer. Firstly, the complaint does not disclose the prescribed method referred to in Explanation (a)(i) nor the fair market value as per that method. Similarly, no value has been ascribed to the shares in terms of Explanation (a)(ii). In the absence of the figures required under (a)(i) and (a)(ii), the fair market value of the shares of accused no. 1 cannot be determined, and consequently it is impossible to ascertain whether the aggregate consideration exceeds the fair market value. Without such calculations, it would be impermissible to add any amount to the income of the company. In essence, without the requisite computation, the monies received cannot be treated as revenue for a financial year., It has been repeatedly mentioned in the complaint that the company was incurring losses for several years and that, based on the Net Asset Value method, the fair market value of the shares was NIL. Upon the court’s request, the complainant placed on record a copy of the Technical Guide on Share Valuation issued by the Institute of Chartered Accountants of India applicable at the time of the allegedly forged valuation report. The Discounted Cash Flow (DCF) method used in the valuation report is described as the most commonly used valuation technique and is widely accepted by valuers. The DCF method is appropriate for valuing start‑up or green‑field projects that have little or no asset base or earnings, making the net asset method or multiple approaches inappropriate. It is correct that the actual cash flows of the accused company did not meet the projections considered at the time of issuance of the valuation report., However, upon request of this court, the complainant prepared a cash‑flow statement of the accused company based on data and information available with the complainant and the Ministry of Corporate Affairs. The statement shows that the company incurred a loss of Rs.2.70 crore in FY 2017‑18, which reduced to Rs.2.17 crore in FY 2018‑19, became Rs.36 lakh in FY 2019‑20, and posted a pre‑tax profit of Rs.42.69 lakh in FY 2020‑21. Regarding operating cash flow, the company lost Rs.3.61 crore in FY 2018‑19, generated cash from operations of Rs.1 lakh in FY 2019‑20, and the cash generated from operations increased to Rs.1.14 crore in FY 2020‑21., Much is made by the complainant of the off‑loading of shares of accused no. 1 by co‑founder Madhu Trehan at Rs.1 per share. In her statement to the complainant, Madhu Trehan said the reason for selling the shares at Rs.1 per share was the negative net worth of the company. However, after selling the shares, she gave an unsecured loan of Rs.77 lakh to accused no. 1, indicating confidence in the company., As explained earlier, one of the best methods to value a start‑up is the DCF method, as other methods that rely on income, assets or net worth tend to give a negative valuation for businesses in their gestation period. It is noteworthy that prominent internet‑based platforms such as Amazon India, Flipkart, Zomato, Big Bazaar and Byju’s have been incurring massive losses year after year, yet their shares are subscribed to by private‑equity investors valuing them at tens of thousands of crores. Considering that the accused company has started making profit and generating cash from operations, the equity valuation provided by the valuer using the DCF method does not appear lofty and cannot be termed bogus., The complainant also highlighted that the valuer did not conduct adequate market research before issuing the valuation report. Accused no. 1 is an alternate news media platform that, as claimed, does not accept advertisement (the biggest source of revenue for other media outlets) and relies on subscription amounts from members as its primary revenue source. It is not known that any other alternate media company with such a unique business model exists in India. To its credit, the report states that it considered information available in the public domain, fairly disclosed that it was based on figures provided by the management of accused no. 1, enumerated the limitations of the valuation report, discussed different valuation approaches and then computed the equity value., As the valuation report is found to be genuine and generally compliant with extant guidelines, there are no material irregularities in the report. Consequently, there is no question of commission of any offence by the company, its directors, the valuers engaged by it or its statutory auditor. No criminal conspiracy of any kind was hatched by the accused persons. The complaint is dismissed as bereft of merit. The file shall be consigned to the record room after completion of due formalities.
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Reserved on 29.06.2022 and delivered on 04.07.2022. Applicant: Parvez Ahmad and three others. Opposite Party: State of Uttar Pradesh and another. Counsel for Applicant: Nasira Adil and Mohd Zubair. Counsel for Opposite Party: G.A. Honourable Rohit Ranjan Agarwal, J., Heard Sri N.I. Jafri, learned Senior Advocate, assisted by Mohd Zubair, learned counsel for the applicants, and Sri Roopak Chaubey, Additional Government Advocate for the State., This application under Section 482 of the Code of Criminal Procedure has been filed for quashing the charge sheet dated 29.05.2020 as well as the entire proceedings of Criminal Case No. 462 of 2021 (State versus Sonu Qureshi and others) arising out of case crime no. 251 of 2020, under Sections 153A, 420, 429, 188, 269, 270, 273 of the Indian Penal Code and sections 3, 5, 8 of the Prevention of Cow Slaughter Act, 1955, section 11 of the Prevention of Cruelty to Animals Act, 1979 and sections 7, 8 of the Environment (Protection) Act, 1986, pending in the court of the Chief Judicial Magistrate, Mau. It is further prayed that proceedings in the aforesaid case may be stayed during the pendency of the application., Sri N.I. Jafri, learned Senior Advocate appearing for the applicants submitted that applicant No. 1 is an Assistant Teacher in the education department of the State, applicant No. 2 is also working as Assistant Teacher in Madrasa Darul Ulum Gausia, Kasba Salempur, applicant No. 3 is running a medical shop and applicant No. 4 is Hafiz Quran. All the applicants have been falsely implicated in case crime no. 251 of 2020 under the aforementioned sections. According to counsel, the First Information Report discloses that two quintal twenty kilograms of beef is alleged to have been recovered from ten persons including the applicants along with certain other items. He submitted that the applicants are Qureshi by caste but are not indulging in the business of meat., It was then contended that the cow meat (beef) recovered from the possession was sent for chemical examination and a report of the Forensic Science Laboratory was received on 05.09.2020 which does not disclose that the sample sent for analysis is of cow. The report has been brought on record as SA-1 to the supplementary affidavit. He further contended that after the First Information Report was lodged, the applicants were roped into another criminal case under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, being case crime no. 564 of 2020. The said proceedings have been challenged before this High Court through a criminal miscellaneous application under Section 482, No. 21034 of 2021, and this High Court on 16.03.2022 had stayed further proceedings in that case; a copy of the order has been brought on record as SA-2 to the supplementary affidavit., Learned Senior Advocate submitted that once the report of the forensic laboratory is on record, no case under the Prevention of Cow Slaughter Act is made out against the applicants and the proceedings in case crime no. 251 of 2020 should be quashed., Sri Roopak Chaubey, Additional Government Advocate appearing for the State, submitted that not only the beef was recovered from the possession but also sixteen live cattle were recovered from the possession of the applicants and the other co‑accused. According to State counsel, the First Information Report categorically mentions that out of the sixteen live cattle stock there were seven buffaloes, one cow, two female buffalo calves, five male buffalo calves and one male cow calf. Thus, it is wrong to say that the forensic report gives a clean chit to the applicants, as sixteen cattle were found in their possession and they were not having any licence to run a slaughter house., I have heard learned counsel for the parties and perused the material on record., It is well established that the inherent jurisdiction of proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. It such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases 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 manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point., 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F .I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F .I.R. 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. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge., Thus, the High Court while laying down the parameters made it clear that where the allegations made in the First Information Report or complaint, taken at their face value and accepted in entirety, do not prima facie constitute any offence or make out a case against the accused, the proceedings can be quashed. Similarly, paragraph 102(5) states that where the allegations are so absurd and inherently improbable that no prudent person can reach a just conclusion that there is sufficient ground for proceeding, power under Section 482 can be exercised. Paragraph 102(7) holds that where proceedings are manifestly mala fide or maliciously instituted with an ulterior motive, the Court can quash them., 16. The broad principles which emerge from the precedents on the subject, may be summarised in the following propositions: 16.1 Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court; 16.2 The invocation of the jurisdiction of the High Court to quash a First Information Report or a criminal proceeding on the ground that a settlement has been arrived at between the offender and the victim is not the same as the invocation of jurisdiction for the purpose of compounding an offence. While compounding an offence, the power of the court is governed by the provisions of Section 320 of the Code of Criminal Procedure, 1973. The power to quash Under Section 482 is attracted even if the offence is non-compoundable. 16.3. In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction Under Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power; 16.4 While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i) to secure the ends of justice or (ii) to prevent an abuse of the process of any court; 16.5. The decision as to whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; 16.6. In the exercise of the power Under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences; 16.7. As distinguished from serious offences, there may be criminal cases which have an overwhelming or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise of the inherent power to quash is concerned; 16.8. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute; 16.9. In such a case, the High Court may quash the criminal proceeding if in view of the compromise between the disputants, the possibility of a conviction is remote and the continuation of a criminal proceeding would cause oppression and prejudice; and 16.10. There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance., 15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under: 15.1. That the power conferred Under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences Under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves; 15.2 Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society; 15.3. Similarly, such power is not to be exercised for the offences under the special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender; 15.4. Offences Under Section 307 Indian Penal Code and the Arms Act etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence Under Section 307 Indian Penal Code and/or the Arms Act etc. which have a serious impact on the society cannot be quashed in exercise of powers Under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge Under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge sheet is filed/charge is framed and/or during the trial. Such exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paragraphs 29.6 and 29.7 of the decision of this Court in the case of Narinder Singh (supra) should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove; 15.5. While exercising the power Under Section 482 of the Code to quash the criminal proceedings in respect of noncompoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the Accused; the conduct of the Accused, namely, whether the Accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc., The Honourable Supreme Court while dealing with the issue as regards appreciation of evidence in proceedings under Section 482 of the Code of Criminal Procedure held that whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties, the Apex Court declined to quash the criminal proceedings., 23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or \no coercive steps to be adopted\, during the pendency of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the Accused or \no coercive steps to be adopted\ during the investigation or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India, our final conclusions are as under: i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence; ii) Courts would not thwart any investigation into the cognizable offences; iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on; iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule; viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate, ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate xiii) The power Under Section 482 Code of Criminal Procedure is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court; xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P . Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; xv) When a prayer for quashing the FIR is made by the alleged Accused and the court when it exercises the power Under Section 482 Code of Criminal Procedure, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR; xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or \no coercive steps\ either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed Under Section 173 Code of Criminal Procedure, while dismissing/disposing of the quashing petition Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an xviii) Whenever an interim order is passed by the High Court of \no coercive steps to be adopted\ within the aforesaid parameters, the High Court must clarify what does it mean by \no coercive steps to be adopted\ as the term \no coercive steps to be adopted\ can be said to be too vague and/or broad which can be misunderstood and/or misapplied., In the present case, the applicants could not point out that no offence was made out from the reading of the First Information Report, apart from relying on the forensic report which indicated that the sample sent for chemical analysis was not cow meat. However, sixteen live cattle were also recovered from the custody of the applicants and other co‑accused., Thus, as the applicants could not demonstrate that the allegations made in the First Information Report, even if taken at their face value and accepted in entirety, do not constitute any offence, or that the allegations are so absurd and inherently improbable that no prudent person can reach a just conclusion, or that the criminal proceedings are manifestly mala fide, the High Court finds that a prima facie cognizable offence is made out against the applicants. The charge sheet has been submitted, and there being serious allegations, no ground is made out for quashing the proceedings in view of the law laid down by the Supreme Court of India in the cases of Parbatbhai Aahir, Laxmi Narain and Neeharika Infrastructure., The dictum of the Supreme Court of India is that the power under Section 482 of the Code of Criminal Procedure should be invoked in exceptional cases where no offence is made out or the allegation on its face does not constitute any offence; then such proceedings can be quashed., In the present case, the applicants attempted to set up a defence by bringing on record the forensic report, but the First Information Report not only discloses the recovery of beef but also sixteen live cattle stocks along with other incriminating material. The defence raised by the applicants will be considered by the trial court, and such defence cannot be entertained by this High Court at the stage of quashing the charge sheet., In the result, the application fails and is hereby dismissed.
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The present writ petition was filed under Article 132 of the Constitution of India over two decades ago, seeking directions to respondent No. 1 State of Karnataka, respondent No. 2 State of Andhra Pradesh and respondent No. 3 Union of India to stop all mining and related activities in the forest areas of Karnataka and Andhra Pradesh being carried out in violation of the order dated 12 December 1996, passed by the Supreme Court of India in T.N. Godavarman Tirumulpad v. Union of India and the Forest (Conservation) Act, 1980., Directions were also sought to be issued to the respondents and the Union of India to declare all mining contracts and sub‑leases issued in violation of the Mines and Minerals (Development and Regulation) Act, 1957 as illegal and to take penal actions against the violators. The third prayer made was for directing stoppage of all mining activities alongside the border and within the forest areas in the Bellary Reserve Forest. Lastly, directions were sought to declare the Notification dated 15 March 2003 and other related notifications de‑reserving lands for mining operations as null and void., The writ petitioner had approached the Supreme Court of India against the indiscriminate and rampant mining activity that was being carried out under the nose of the authorities, in particular in the District of Bellary. The reports submitted by the Central Empowered Committee (CEC) bore out the submissions made by the petitioner regarding large‑scale illegal mining in the area resulting in complete degradation of the environment. As a result, vide order dated 29 July 2011, all mining activity was prohibited in the District of Bellary, followed by the Districts of Tumkur and Chitradurga. Taking note of the rampant encroachment in forest land by lease‑holders and illegal mining operations, a joint team was constituted vide order dated 6 May 2011 to conduct a survey of the area which revealed how illegal mining had ravaged the forest area of the aforesaid districts., The CEC submitted a Final Report dated 3 February 2012, making several recommendations, one of which was to categorise the mines into three categories based on the extent of encroachment in respect of the mining pits and overburden dumps, determined in terms of percentage of the total lease area. The three categories of the mines were suggested as A, B and C. Another recommendation related to the conditions proposed for reopening of mining and resumption of the mining operation for the Supreme Court of India to consider as part of the Reclamation and Rehabilitation Plans., The recommendation made by the CEC vide its report dated 13 March 2012, relating to the prescription of a ceiling limit for the total production of iron ore for mining leases in the Districts of Bellary, Chitradurga and Tumkur, prohibition of export of iron ore outside the country, use of e‑auction to be conducted by a Monitoring Committee for the sale of iron ore, deposit of ten percent of the sale price received during the e‑auction with the Monitoring Committee along with the other charges, and constitution of and assigning various responsibilities to the Monitoring Committee, were duly considered and accepted by the Supreme Court of India in its order dated 13 April 2012. On 3 September 2012 permission was granted by the Supreme Court of India to re‑open all eighteen categories of A and B mines subject to certain conditions. A similar recommendation was made by the CEC for reopening of the remaining categories of A and B mines in its report dated 15 February 2013., Regarding the directions issued by the Supreme Court of India concerning the sale of existing stock of iron ore extracted through illegal mining, vide order dated 23 September 2011, the Court directed disposal of the accumulated iron ore through the process of e‑auction conducted by the Monitoring Committee and further constituted a Special Purpose Vehicle (SPV) in terms of the order dated 29 October 2012 for taking ameliorating and mitigating measures as per the Comprehensive Environment Plans for the Mining Impact Zone (CEPMIZ) around the mining leases in the three districts of the State of Karnataka, with directions issued to the Monitoring Committee to provide the payment received by it to the SPV in that regard., In the year 2015, an application was moved by the Federation of Indian Mineral Industries, Southern Region (FIMI South) (Interim Application 248 of 2015) for permission to sell the iron ore and manganese ore within the State of Karnataka without taking recourse to e‑auction to be conducted by the Monitoring Committee, as set up by the Supreme Court of India. The prayer was opposed by the petitioner and other stakeholders. However, the CEC vide its report dated 28 April 2016 agreed to the prayer made by FIMI South on the ground that, in view of the several orders passed by the Supreme Court of India, the basic objective behind sale of iron ore through the Monitoring Committee had been achieved and an alternate system needed to be put in place. The State of Karnataka also agreed to the suggestions made by the CEC and submitted a model to the Court for monitoring sale of iron ore through the e‑platform on the basis of a long‑term agreement., Highlighting the reason behind constituting the Monitoring Committee and the role attributed to it for the sale of iron ore through e‑auction, and observing that the connected aspect of lifting or enhancing the cap on production and launching of the CEPMIZ scheme was still under consideration, the Supreme Court of India rejected the application filed by FIMI South vide order dated 28 August 2017, opining that the time had not yet come to dispense with the existing policy of sale and purchase of iron ore in the State of Karnataka through the Court‑appointed Monitoring Committee by e‑auction and for grant of permission to sell the iron ore on a direct sale basis through long‑term contracts or spot sale. The Court held that restoration of normalcy in the sale and purchase of iron ore must be deferred till significant headway was made in respect of the other connected aspects noted in the Final Order dated 18 April 2013., Another order that needs to be noted was one passed in the present petition on 14 December 2017. The order was passed on applications moved by Karnataka Iron and Steel Manufacturers Association (Interim Application 273/2017), FIMI South (Interim Application 56562/2017) and Chitradurga Sustainable Mining Forum (Interim Applications 76163 and 76167/2017) seeking removal of the annual cap of mining fixed by the Supreme Court of India and permission to extract iron ore as per the approved Reclamation and Rehabilitation Plans. A similar request was made by the Ministry of Mines, Union of India in Interim Application 103342/2017, stating that the annual mineral policy was under revision and the discretion of fixing a cap upon extraction of mineral ought to be left to the Ministry. The State of Karnataka highlighted the significant improvement made in the infrastructure and suggested a gradual increase in the annual cap based on iron ore extraction from 30 million metric tonnes (MMT) that had been fixed for all three districts to 50 MMT., After examining the recommendations made by the CEC in its report dated 14 July 2017 and taking into account the submissions made by Mr. M.K. Jiwarkar, former Member Secretary of the CEC, as well as Mr. Prashant Bhushan, learned counsel for the petitioner, the Supreme Court of India passed an order on 14 December 2017, accepting the recommendations made by the CEC for enhancement of the cap for category A and B mines subject to imposition of conditions relating to category C mines in the three districts of Bellary, Tumkur and Chitradurga., The reliefs sought by various interveners through independent applications are as follows: Interim Application 205/2014 and Interim Application 206/2014 moved by KIOCL Ltd., a Government of India enterprise (for intervention and modification of the order dated 23 September 2011); Interim Application 24335/2018, Interim Application 61304/2019 and Interim Application 17007/2021 filed by FIMI South (for permission to export pellets manufactured from iron ore in the State of Karnataka, permission to export unsold iron ore despite being put on e‑auction for more than three occasions and freedom to enter into contracts for iron ore from lessees in the State of Karnataka); Interim Application 98216/2020 and Interim Application 98219/2020 filed by SLR Metaliks (for impleadment and permission to enter into contracts directly for purchase of iron ore from lessees in Karnataka without resorting to e‑auction); Interim Application 152631/2018 moved by Vedanta Ltd. (for permission to export or sell iron ore without recourse to e‑auction in the State of Karnataka); Interim Application 64798/2019 in Interim Application 152631/2018 filed by the State of Karnataka Gani Avalambhithara Vedike (for intervention and permission to export or sell iron ore which steel plants and other industries are unwilling to purchase in the e‑auction process, by selling it directly on or above the prevailing market price); Interim Application 97376/2019 in Interim Applications 24335/2018 and 152631/2018 filed by Karnataka Sponge Iron Manufacturer Associations (for intervention and permission to export pellets in the State of Karnataka); Interim Application 61452/2020 filed by Mineral Enterprises Limited (for permission as a one‑time measure to sell or export unsold iron ore without resorting to the e‑auction framework); Interim Application 37678/2022 filed by NMDC Limited, a Central Public Sector Undertaking (for permission to offer iron ore extracted by it on a direct sale basis without resorting to e‑auction and for export purposes)., A reply affidavit dated 1 April 2022 has been filed by the petitioner opposing the request of the mining companies and pellet manufacturers for permission to export iron ore and pellets, stating that if the production of iron ore is in excess of the demand of the domestic steel industries as alleged, then the Court may consider reducing the cap of iron ore extraction instead of permitting export thereof. Mr. Prashant Bhushan, learned counsel appearing for the petitioner, contended that if it is claimed by the applicants that the domestic steel industry has created a cartel whereby they are not purchasing the iron ore, then the problem of cartelisation needs to be addressed. Similarly, permission for exporting pellets has also been opposed by the petitioner and it has been submitted that the order dated 23 September 2011 passed by the Supreme Court of India does not deserve modification., The Monitoring Committee has filed a status report dated 30 March 2022, stating inter alia that as on 31 March 2022 the closing balance of iron ore is 8.29 MMT (approx.). During the year 2021, 33.156 MMT of iron ore was sold through e‑auction. As on 1 April 2021, the opening stock of iron ore in respect of running mines (Category A and B) is 6.65 MMT (approx.). The report also furnishes a list of iron ore mining leases operating outside the Districts of Bellary, Chitradurga and Tumkur, prescribing the approved capacity and the actual production achieved by them. Another tabulated statement contains the list of iron ore mining leases in the aforesaid three districts for Category A, B and C auctioned mines showing approved Maximum Permissible Annual Production (MPAP) and actual production and dispatches. The data include entries such as JSW Ltd. (Narayana) with opening balance 306.478 MMT, MPAP 1,110,000 MMT, production 1,007,885 MMT, dispatch 966,213.95 MMT, closing balance 348,149.1 MMT, and similar figures for other lessees., The CEC submitted Report No. 3 of 2022 dated 10 April 2022 in response to the directions issued by the Supreme Court of India on 30 March 2022. It stated that only a temporary ban on exports was imposed by the Court at a critical time when mining operations were restricted in the State of Karnataka and that it was never the intention of the Court to restrict mining operations permanently. Citing the information furnished by the Monitoring Committee relating to the closing balance of stock available in Category A, B and C as on 31 March 2022, which adds up to 1,19,47,839.3 metric tonnes, the CEC recommended vacation of the orders directing sale of iron ore through e‑auction to be conducted by the Monitoring Committee, with a rider that the procedure continue for the sale of the balance of old stock of iron ore including sub‑grade iron ore available on the date of imposition of the ban. It suggested that all the balance old stock be sold through e‑auction before the end of July 2022 and if any stock is left unsold, only then should the lessee be permitted to dispose of it without adopting the e‑auction process., The second suggestion made by the CEC is to discontinue collection of ten percent of the sale value from all lessees except for NMDC Limited and twenty percent of the sale value from NMDC Limited toward their contribution to the SPV. Thirdly, it has been suggested that the total ban imposed on export of iron ore and pellets from the districts of Bellary, Chitradurga and Tumkur be lifted. Lastly, the CEC has sought vacation of the orders fixing district‑level caps on production of iron ore in respect of Category A and B mines from the financial year 2022‑23 onwards. The report concludes by requesting that the system of determination of MPAP being fixed through the Reclamation and Rehabilitation Plans and Supplementary Environment Plans, as approved by the Supreme Court of India by the orders dated 13 April 2012 and 18 April 2013, may be continued., The Ministry of Steel, Union of India has filed an affidavit dated 16 April 2022, stating inter alia that keeping in mind the fact that a requirement of 192 million tonnes of iron ore is needed for producing 120 million tonnes of steel annually, the Supreme Court of India may consider vacating the order for district‑level caps on iron ore mines imposed in the three districts of the State of Karnataka, by treating the mines in the said State at par with the mines in the rest of the country., The Ministry of Mines, Union of India has filed a separate affidavit dated 9 April 2022, stating inter alia that over the years the scenario has changed, which is apparent from the reports submitted by the CEC from time to time. Further, the Mines and Minerals (Development and Regulation) (Amendment) Act, 2015 has been put into place and, taken together, these steps necessitate a re‑look at the restriction imposed earlier; therefore, operation of mines in the State of Karnataka may be aligned with the rest of the country. The Ministry has said that it has no objection to export of iron ore mined in the State of Karnataka, just as it is being done in the rest of the country., KISMA has filed two affidavits dated 8 April 2022 and 18 April 2022, opposing the applications mentioned above for permission to export iron ore pellets as prayed for by FIMI South, KIOCL Limited, Vedanta Limited and others, and stated that the process of e‑auction through the Monitoring Committee should not be discarded as the process is fair and transparent. Opposing the request for permission to export iron ore, it has been averred that any such permission may result in the miners fixing the base price so high as to oust the domestic steel industries, leading to manipulation by the miners., A similar objection has been raised with respect to the request for export of iron ore pellets. KISMA's stand is that export of iron ore ought not be permitted since it will result in starving the domestic steel and allied industries and permitting the mining industries to earn quick profits in the international markets due to the surge in iron ore prices in the recent past. In its subsequent affidavit, KISMA added that if the Supreme Court of India is inclined to permit export of iron ore from the State of Karnataka, the same may be permitted subject to additional safeguards and guidelines as recommended by the CEC in its Report No. 19/2019, reiterated later in Report No. 16/2020 and Report No. 20/2020., The State of Karnataka filed an affidavit dated 17 May 2021 in reply to Interim Application 152631/2018 moved by Vedanta Limited, followed by an additional reply filed on 19 April 2022. In both affidavits the State of Karnataka submitted that no export ought to be permitted of iron ore excavated from mines situated within the State. Disagreeing with Report No. 3/2022 submitted by the CEC recommending permission for exporting iron ore mined within the State, it averred that such a recommendation is not backed by any cogent material., We have considered the arguments advanced by learned counsel for the parties, perused the latest report of the CEC and the Monitoring Committee, examined the stand of the Ministry of Steel, the Ministry of Mines, Union of India and the State of Karnataka. The data placed before us by the respective parties in their applications under consideration have also been examined. For the present, we propose to confine the scope of this order to examining the twin prayers made by learned counsel for the applicants, namely permission to sell the unsold stock of iron ore already excavated without resorting to the process of e‑auction conducted through the Monitoring Committee and lifting the ban on export of iron ore and pellets from the districts of Bellary, Chitradurga and Tumkur situated in the State of Karnataka. Although certain submissions were made by the parties regarding lifting of the ceiling limit for total production of iron ore, at this juncture we are not inclined to decide that issue., Records reveal that repeated attempts to resort to the e‑auction process for the sale of already excavated iron ore mined in the three districts of Bellary, Chitradurga and Tumkur in the State of Karnataka have not borne fruitful results. As a consequence, large stock of iron ore, including sub‑grade iron ore, is lying unused. As on 31 March 2022, the stocks available in Category A and B mines are stated to be 8,298,130.5 metric tonnes. The stocks available in the auctioned Category C mines as on the same date are 1,225,100.5 metric tonnes. The stock in respect of e‑auction Category A and Category B expired leases is 2,33,126.73 metric tonnes and in mining leases outside the districts of Bellary, Chitradurga and Tumkur is 93,181 metric tonnes. The closing balance of iron ore available in all the mines across the State of Karnataka as on 31 March 2022 adds up to 24 million metric tonnes., On glancing over the earlier orders passed by the Supreme Court of India, it is evident that it was on account of the rampant illegal mining that had been taking place in the State of Karnataka and had severely impacted the ecology of the region that the Court was compelled to impose a blanket ban on mining operations in three specific districts. After the imposition of the ban, the Court was confronted with a situation where a huge stock‑pile of iron ore had accumulated in the mines and stockyards that needed to be disposed of. Accordingly, a transparent process of e‑auction was adopted on the recommendations of the CEC with a further direction that the sale proceeds would be placed in a separate account pending settlement of ownership rights over such stock of iron ore. This mode has been consistently adopted for sale of the stock of excavated iron ore under the aegis of the Monitoring Committee, which was called upon to deduct ten percent of the sale value in respect of all Category A and B mines and twenty percent of the sale value in respect of two mines owned by NMDC Limited, for being deposited in the SPV accounts towards implementation of the CEPMIZ. Report 3 of 2022 submitted by the CEC records that the collection in the SPV maintained by the Monitoring Committee as on 31 March 2022 has crossed twenty thousand crore rupees, an amount that would be adequate to meet the expenses connected with the activities proposed to be undertaken under the CEPMIZ., It is also pertinent to note that in the earlier orders dated 13 April 2012 and 11 August 2014 passed by the Supreme Court of India in Interim Applications 205 and 206 of 2014, it was clarified that the system of sale through the Monitoring Committee may be reviewed after two years. It is after the passage of eight years that the Court is revisiting the system that was put in place., Report No. 19/2019 dated 18 July 2019 filed by the CEC is also relevant. It states that the State of Karnataka during the year 2018‑19 produced about 30.33 MMT of iron ore. Out of this, the unsold stock of iron ore is 15.86 MMT, comprising 10.43 MMT of old stock and 5.43 MMT of fresh stock. Since steel manufacturers have been importing iron ore from other states or from foreign countries, the Monitoring Committee acknowledged in its report dated 3 May 2019 that the import of iron ore from outside the country has impacted the demand for iron ore and pricing in e‑auction sales. This is further supported by the low off‑take in e‑auction sales as can be seen from the sale data for the periods 1 January 2018 to 30 June 2018 and 1 July 2018 to 31 March 2019. During the period 1 January 2018 to 31 March 2019 a total of 229 e‑auctions of iron ore were conducted by the Monitoring Committee. On 72 days, more than fifty percent of the quantity offered for sale was purchased by end users in the e‑auction, whereas on the remaining 157 days less than fifty percent was purchased. On eight days when e‑auction was conducted there was zero bid, while on twelve days one hundred percent of the quantity offered for sale was bid., It is not in dispute that iron ore lumps are in demand and get sold at market price. The issue before this Honorable Court is with regard to the sale of iron ore fines, which is not taking place especially from the mines located in the districts of Tumkur and Chitradurga. The mining lease of the applicant is also one such mine located in District Chitradurga. The quality of the iron ore fines from these two districts is of concern as they have higher manganese content and other impurities, which adversely affect the demand for the iron ore fines so much that even at the reserve price of Rs 450 per tonne the material is not getting sold in consecutive auctions., This Honorable Court, in its order dated 1 September 2016 in Interim Applications 259 and 263, while considering the application for permission for export of iron ore, observed that permission for export must be governed by norms and parameters of general application as distinguished from ad‑hoc decisions in individual cases. Until such guidelines are framed, the prayer of Vedanta Ltd. for export of its iron ore cannot be granted. The Court stated that permission to export is only an enabling provision to be made in respect of unsold stock of iron ore subject to the extant policy of the Government of India. The actual export of iron ore, however, will depend on the price of iron ore in the international market vis‑à‑vis the domestic market. Since the production of iron ore has crossed thirty MMT per annum, the Court noted that it is time to review State‑specific restrictions in Karnataka on sale of iron ore so that such restrictions do not work to the disadvantage of either the producer or the manufacturer. In the changed situation, when the raw material requirement of steel and allied industries is not limited by the production of iron ore, demand, supply and price are best left to be determined by market forces., New mining leases are now sold through e‑auction to the end users and the premium to be paid by the successful bidders is limited to the State‑specific prices notified by the Iron Ore (IB) based on the monthly average price realized in respect of a given grade of iron ore sold in the State. Eligibility to participate in the sale of the new mines and in e‑auction sale of iron ore in Karnataka State is limited to the steel and allied industries, the end users. The Applicant has stated that this situation gives scope to the end‑user industry to manipulate the sale price of ore, which in turn impacts the premium amount to be paid for iron ore produced from captive mines purchased by them. The sale price data from steel mills in respect of 60 % Fe fines and price at ex‑mines furnished by FIMI indicates that the IB‑published iron ore prices between January 2018 and May 2019 have gone down in Karnataka by 18.7 % while during the same period the IB‑published prices in the States of Odisha and Chhattisgarh have gone down by only 2.7 % and 7.7 % respectively. The difference in sale price is the result of limiting participation in e‑auction to the end users who even resort to importing iron ore at higher landed cost though the same is available in the State. In these circumstances the possibility of manipulation of iron ore prices because of exclusivity given to the steel industry in purchase of iron ore from the mining lessees needs to be addressed., In its Report No. 16/2020 dated 29 June 2020, the CEC observed that the Supreme Court of India had no intention of imposing a permanent ban on export of iron ore or pellets from the districts of Bellary, Chitradurga and Tumkur in Karnataka. The ban on export of iron ore and pellets was ordered solely in the context of the ban on mining operations in the three districts and as an interim measure. The reopening of Category A and Category B mines has taken place in a phased manner after fulfilment of conditions relating to implementation of the Reclamation and Rehabilitation Plans and compliance of annual production limits fixed for each mining lease based on scientific principles of reserve availability, dump area availability and transport infrastructure. Pursuant to the implementation of the Reclamation and Rehabilitation Plans and the scientific fixation of production limits, there has been substantial improvement in the environmental parameters in the three districts. The opposition by the Karnataka Iron and Steel Manufacturers Association (KISMA) to export of iron ore and pellets is based mainly on commercial considerations and is not directly related to environmental issues concerning mining. The annual production levels have crossed twenty‑five MMT, a limit earlier suggested by the CEC in its report dated 2 April 2014 in Interim Applications 205 and 206 of 2014 filed by KIOCL for lifting the ban on export of iron ore and pellets. Currently there is no restriction on grant of new mining leases in Karnataka. The recommendation made by the CEC in its Report No. 19 of 2020 dated 18 July 2019 and Report No. 20 of 2019 dated 18 July 2019 for lifting the ban imposed on export of iron ore fines and pellets respectively has been made after considering the availability of iron ore on a sustainable basis and the general policy of the Government of India on the subject.
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In the circumstances, the Competition Commission of India is of the considered view that orders specific to the three districts in the State of Karnataka banning export of iron ore and pellets issued by the Supreme Court of India in the context of the total ban on mining in the three districts ordered by this Supreme Court of India now requires to be reviewed. The method of sale and price fixation of iron ore are best left to be determined by the market forces as any restriction on sale including export will only benefit one party at the cost of the other. Artificial suppression of the iron ore prices will also adversely impact the revenues of the State Government. The recommendation of the Competition Commission of India in its Report No. 19 dated 18 July 2019 on export of iron ore is restricted to iron ore fines which remain unsold or not purchased by the user industry and lays down the guidelines and method of sale. There is an built‑in provision in the condition of sale suggested by the Competition Commission of India to overcome the scope of manipulation of prices. It may be stated here that this Supreme Court of India in its order dated 13 April 2012 and judgment dated 18 April 2013 has stated that the exports outside the country should be permissible only in respect of the material which the steel plants and associated industries are not willing to purchase on or above the average price realized by the Monitoring Committee for the corresponding grades of fines or lumps., The Ministry of Steel, Union of India has supported the applications moved by the interveners and submitted that the mining scenario has improved considerably since the year 2018 and in that background, the Supreme Court of India may consider treating the mines situated in the State of Karnataka equal to those situated in the rest of the country since that would permit inter‑state trade of iron ore mined in the State of Karnataka, which is presently prohibited. The Ministry of Mines has also given its no‑objection to export of iron ore to other countries in terms of the prevailing policy of the Government of India., We are in broad agreement with the stand taken by the Ministry of Steel, Union of India and the Ministry of Mines that it is necessary to create a level playing field for the mines situated in the districts of Bellary, Chitradurga and Tumkur with others situated in the rest of the country. As the Competition Commission of India has indicated, the demand, supply and price of iron ore are best left to be determined by the market forces. The Supreme Court of India is of the opinion that the time has come to review the system that was put in place over a decade ago, on halting the unchecked excavation of iron ore in the three prime districts in the State of Karnataka. Ever since then, e‑auction has been the only mode available for disposal of the excavated iron ore. The said arrangement has worked out satisfactorily so far. The situation that was prevalent in the region prior to the year 2011 has now changed for the better. Having regard to the course correction that has taken place, the regeneration post the ruinous damage caused to the environment and the various steps taken by the Government, we are of the opinion that the order passed on 23 September 2011 deserves to be relaxed., Additionally, it is a matter of record that consecutive e‑auctions conducted by the Monitoring Committee have been receiving a poor response and sale of iron ore even at the reserve price is dismally low. Looking at the overall change in the outlook, the restrictions placed on the manner of conducting the sale of iron ore and fixation of the sale price need to be removed., Keeping in mind all the aforesaid factors, we are inclined to favourably consider the prayer made by the applicants and grant them permission to sell the already excavated iron ore stock‑pile at various mines and stock yards located in the districts of Bellary, Tumkur and Chitradurga in the State of Karnataka, without having to resort to the process of e‑auction. Permission is granted to the applicants to enter into direct contracts to lift the excavated iron ore through inter‑state sales. We also grant permission to the applicants to export the iron ore and pellets manufactured from the iron ore produced from the mines situated in the State of Karnataka to countries abroad, as is being done in the rest of the country, but strictly in terms of the extant policy of the Government of India., With the above order, all the applications listed in paragraph twelve stand allowed to the extent indicated above., With respect to the submissions of the parties in relation to the lifting of the ceiling limit for production of iron ore for mining leases in the districts of Bellary, Chitradurga and Tumkur, we are of the considered opinion that it would be expedient to obtain an opinion from the Oversight Authority appointed by the Supreme Court of India vide order dated 21 April 2022 about the same before deciding the said issue. We request the Oversight Authority to take inputs from the stakeholders, including the Competition Commission of India and the Monitoring Committee, and to send its opinion to the Supreme Court of India preferably within a period of four weeks., List for hearing on the said issue in the second week of July 2022.
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Ms. Meenakshi Arora, Senior Advocate (Additional Counsel). Mr. Kunal Chatterji, Advocate on Record. Mr. Avnish Kumar Sharma, Advocate. For Petitioners: Mr. Tushar Mehta, Solicitor General; Ms. Aishwarya Bhati, Additional Solicitor General; Mr. Rajat Nair, Advocate; Mr. Kanu Agrawal, Advocate; Mr. Amit Mahajan, Advocate; Mr. Prashant Singh B, Advocate; Mr. Raj Bahadur Yadav, Advocate on Record; Mr. Gurmeet Singh Makkar, Advocate on Record. For Respondents: Mr. Rahul Mehra, Senior Advocate; Mr. Gautam Narayan, Advocate on Record; Mr. Satyakam, Advocate; Ms. Asmita Singh, Advocate; Mr. Adithya Nair, Advocate; Mr. Rakesh Malhotra, Advocate appearing in person; Mr. Tungesh, Advocate., Upon hearing the counsel the Supreme Court of India made the following: These proceedings have arisen from two orders of the Division Bench of the High Court of Delhi dated 1 May 2021 and 4 May 2021., By the first of these orders, the High Court of Delhi directed the Central Government to ensure that the Government of National Capital Territory of Delhi receives its allocated supply of 490 Metric Ton, by whatever means. The Central Government was directed to arrange tankers so that the allocation made to Delhi could be fulfilled. The High Court directed that if the order is not implemented, the concerned officers of the Government shall remain present during the hearing on 3 May 2021., By the second order of the High Court of Delhi, the Central Government has been directed to show cause as to why contempt action should not be initiated not only for non‑compliance with its order dated 1 May 2021, but also of the order passed by the Supreme Court of India in the meantime on 30 April 2021 (which was released and uploaded on the website of the Supreme Court of India on 2 May 2021)., At this stage, it may be material to note that the order of the Supreme Court of India dated 30 April 2021, followed upon a comprehensive hearing on diverse aspects of the management of the COVID‑19 pandemic., By the order of the Supreme Court of India dated 30 April 2021, certain specific directions were issued in regard to the supply of oxygen to the National Capital Territory of Delhi. Paragraphs 27, 28 and 29 of the order are extracted below for convenience of reference:, Submissions have also been made on the issue of supply of oxygen by Mr. Rahul Mehra, Senior Advocate appearing for the Government of National Capital Territory of Delhi. Mr. Mehra submits that the Government of National Capital Territory of Delhi is facing an acute shortage of the supply of oxygen as it had been allocated a substantially lower quantity of oxygen as against its projected demand. He pointed out that initially as on 15 April 2021, the projected demand for 20 April 2021 was 300 Metric Ton per day, for 25 April 2021 it was 349 Metric Ton per day, and for 30 April 2021 it was 445 Metric Ton per day. However, due to a surge in cases, the projected demand was revised on 18 April 2021 to 700 Metric Ton per day and this was immediately communicated to the Central Government. Despite the increase in projected demand, the supply of oxygen continued in terms of the allocation order dated 25 April 2021, in which 490 Metric Ton per day were allocated. The manufacturers have only been able to supply 445 Metric Ton per day. Mr. Mehra clarified that as on the date of the hearing their demand was 700 Metric Ton per day, and their projected demand for the coming days is stated to be 976 Metric Ton per day as the Government of National Capital Territory of Delhi has planned an increase in medical infrastructure, including beds with oxygen cylinders and beds for patients in intensive care unit., Opposing his submission, the Solicitor General and Ms. Dawra stated that no revised projections have been received from the Government of National Capital Territory of Delhi till date. The Solicitor General also highlighted that the government of the Government of National Capital Territory of Delhi has failed to offtake the allocated quantity of oxygen from the supply point., Having heard the submissions of both counsel on the issues pertaining to supply of oxygen to the Government of National Capital Territory of Delhi, we note that the Central Government (on page 63) in its affidavit dated 23 April 2021 has admitted that the projected demand as of 20 April 2021 had increased by 133% from 300 Metric Ton per day to 700 Metric Ton per day. According to the figures of allocation given in the affidavit dated 23 April 2021 and the presentation given by Ms. Dawra, the existing allocation remains at 490 Metric Ton per day. This situation must be remedied forthwith. The situation on the ground in Delhi is heart‑rending. Recriminations between the Central Government (which contends that the Government of National Capital Territory of Delhi has not lifted its allocated quantity) and the Government of National Capital Territory of Delhi (which contends that despite its projected demand the quantity allocated has not been enhanced) can furnish no solace to citizens whose lives depend on a thin thread of oxygen being available. On the intervention of the Supreme Court of India during the hearing, the Solicitor General states that he has instructions to the effect that the Government of National Capital Territory of Delhi's demand of medical oxygen will be met and that the national capital will not suffer due to lack of oxygen. We issue a peremptory direction in those terms. In the battle of shifting responsibility of supplying/off‑taking oxygen, lives of citizens cannot be put in jeopardy. The protection of the lives of citizens is paramount in times of a national crisis and the responsibility falls on both the Central Government and the Government of National Capital Territory of Delhi to cooperate with each other to ensure that all possible measures are taken to resolve the situation. Learned Senior Counsel for the Government of National Capital Territory of Delhi has assured the court after taking instructions at the highest level that the issue will be resolved completely in a spirit of co‑operation. During the course of the hearing, the Solicitor General has assured that henceforth he will ensure that the deficit of oxygen is rectified and supply is made to the Government of National Capital Territory of Delhi according to their projected demand (which may be revised in the future) on a day‑by‑day basis. We accept his submission and direct compliance within two days from the date of the hearing, that is, on or before midnight of 3 May 2021., In the operative order, the following direction was issued: The Union of India shall ensure, in terms of the assurance of the Solicitor General, that the deficit in the supply of oxygen to the Government of National Capital Territory of Delhi is rectified within two days from the date of the hearing, that is, on or before midnight of 3 May., When the High Court of Delhi was seized of the proceedings on 4 May 2021, it was argued on behalf of the Central Government that: the compliance affidavit would be filed before the Supreme Court of India in regard to the steps which have been taken to fulfill the terms of the directions issued by the Supreme Court of India in its order dated 30 April 2021; and the Supreme Court of India has not directed the supply of 700 Metric Ton of Liquid Medical Oxygen per day to the National Capital Territory of Delhi., The High Court of Delhi held that neither of these submissions could be accepted. In the view of the High Court, the order of the Supreme Court of India mandates that a supply of 700 Metric Ton of Liquid Medical Oxygen per day has to be effected to the National Capital Territory of Delhi, whereas the producers of oxygen have been able to supply 445 Metric Ton per day., Aggrieved by the directions of the High Court of Delhi initiating contempt proceedings against two of its officers, the Union of India is in appeal., At the outset, Mr. Tushar Mehta, learned Solicitor General, submitted that the Central Government accepts its obligation to comply with the order of the Supreme Court of India dated 30 April 2021, accepting the interpretation that the order mandates the supply of 700 Metric Ton of Liquid Medical Oxygen per day to the National Capital Territory of Delhi. However, it was submitted that the exercise of the contempt jurisdiction was not warranted for a variety of reasons. Firstly, an expert group was constituted by the Central Government consisting of Dr. V. K. Paul, Member of the NITI Aayog; Dr. Randeep Guleria, Director, AIIMS; the Director General of ICMR; and the Director General of Health Services for computing the requirement of oxygen across India on a rational basis. The expert group determined that the oxygen requirement would be calculated on the following basis: for 50 % of non‑ICU beds at the rate of 10 litres per minute; for 100 % of ICU beds at the rate of 24 litres per minute., On this basis, it was submitted that the optimal demand of the National Capital Territory of Delhi should be in the range of 415.43 Metric Ton per day and that the demand of 700 Metric Ton of Liquid Medical Oxygen per day, as claimed, appears to be contrary to its optimal requirements. The computation was based on the following premises: Calculation sheet for Oxygen Requirement for Non‑ICU beds – total number of Non‑ICU beds 16,272 (as per the Government of National Capital Territory of Delhi); 50 % of these require oxygen, i.e. 8,136 beds; oxygen requirement per bed is 10 litres per minute, giving 81,360 litres per minute; for one day this equals 81,360 × 60 × 24 = 1,171,584,00 litres, which converts to 152 Metric Ton (1 Metric Ton = 770,000 litres). Calculation sheet for Oxygen Requirement for ICU beds – total number of ICU beds 5,866; oxygen requirement per bed is 24 litres per minute, giving 1,40,784 litres per minute; for one day this equals 1,40,784 × 60 × 24 = 2,027,28,960 litres, which converts to 263.28 Metric Ton. The total oxygen requirement therefore is 152.15 + 263.28 = 415.43 Metric Ton., The second submission urged by the Solicitor General is that the Central Government has, in good faith, increased the stock of medical oxygen available for distribution across the country and that presently about 9,000 Metric Ton of medical‑grade oxygen are available in the pool. Consequently, the availability of oxygen to the National Capital Territory of Delhi, which stood at 433 Metric Ton on 3 May 2021, increased to 555 Metric Ton on 4 May 2021 and, until 12 noon on the day of hearing, a total quantity of 351.56 Metric Ton had reached the National Capital Territory of Delhi. The measurement cycle runs from midnight to midnight, and there is no intentional violation warranting invocation of contempt powers., The third submission urged by the Solicitor General is that a comparison with the City of Mumbai shows that at the peak of its oxygen requirement, when Mumbai had an active caseload of 92,000 on 10 April 2021, the oxygen consumption was about 275 Metric Ton of Liquid Medical Oxygen each day. Mumbai was able to manage with that requirement through a proper institutional framework for oxygen handling and storage., The fourth submission urged by the Solicitor General is that a proper audit of the oxygen requirement for the National Capital Territory of Delhi should be conducted by a broad‑based committee consisting of officers drawn from the Government of National Capital Territory of Delhi, the Central Government and experts from public hospitals in the National Capital Territory of Delhi and the private sector, so that a scientific assessment can determine the actual requirement and guide allocation., In other words, it has been urged that increasing the oxygen allocation to 700 Metric Ton will only result in a reduction of allocation to another critically affected area of the country and that such a decision must be based on scientific rationale., Apart from the Solicitor General, we interacted on a video‑conferencing platform in open court with Mr. Piyush Goyal, Additional Secretary in the Union Ministry of Home Affairs. Mr. Goyal indicated the steps taken by the Central Government to augment the supply of oxygen to the National Capital Territory of Delhi. The Supreme Court of India was apprised of the following steps: the virtual control room covering the entire country has been specifically augmented for the National Capital Territory of Delhi by engaging officers of the Government of National Capital Territory of Delhi and the Central Government; a quantity of 140 Metric Ton imported, which arrived at Mundra port, was dispatched to the National Capital Territory of Delhi and arrived for allocation and supply; besides the imported supplies, an additional quantity of 80 Metric Ton initially sourced from the State of Gujarat has been progressively enhanced to 102‑103 Metric Ton per day; arrangements have been made with the Railways for four trains to carry oxygen stock from supply points in various regions to the National Capital Territory of Delhi on a schedule ensuring adequate availability., We may also note that Mr. Rahul Mehra, learned Senior Counsel appearing on behalf of the Government of National Capital Territory of Delhi, furnished the following data on the quantity of oxygen allocated to the National Capital Territory of Delhi since 28 April 2021: 28 April 2021 – 431.26 Metric Ton; 29 April 2021 – 409.38 Metric Ton; 30 April 2021 – 324.63 Metric Ton; 1 May 2021 – 422.04 Metric Ton; 2 May 2021 – 447.59 Metric Ton; 3 May 2021 – 433.09 Metric Ton; 4 May 2021 – 555.01 Metric Ton., The data provided by the Senior Counsel for the Government of National Capital Territory of Delhi suggests an increase in the availability of oxygen between 2, 3 and 4 May 2021, though the quantity of 700 Metric Ton prescribed in the order of the Supreme Court of India dated 30 April 2021 has not yet been achieved., Mr. Piyush Goyal, learned Additional Secretary, drew the Court's attention to a drop in supply on 30 April 2021 as a result of the non‑availability of a specified source of supply., At the outset, it needs to be clarified that the reason the Supreme Court of India has been persuaded to take up these proceedings during the pendency of the contempt proceedings in the High Court of Delhi is that invoking contempt jurisdiction against two officers (one of whom, Ms. Dawra, has tested COVID‑19 positive but continues to attend to her duties while in isolation) will not in itself resolve the problem confronting the National Capital Territory of Delhi. When the country is faced with a serious pandemic, the Court's effort must be to facilitate problem‑solving by active engagement and cooperation of all stakeholders. The High Court of Delhi has been engaging with the situation virtually on a day‑to‑day basis and has been considering diverse aspects of the matter. The contempt notice is an expression of its anguish. The issue of oxygen availability for the National Capital Territory of Delhi must be resolved bearing in mind the national availability of oxygen so that suitable arrangements are made for allocation, transportation from the point of supply and distribution within the city. The Union Government cannot be oblivious to the urgent need and demand for oxygen to meet the requirements of the National Capital Territory of Delhi. It is with that end in view that the Supreme Court of India, by its order dated 30 April 2021, directed the allocation of 700 Metric Ton of oxygen per day to the National Capital Territory of Delhi. The attempt to persuade the High Court that there was no such direction by this Court was an evident attempt at legal disingenuity and has been correctly rejected. The Solicitor General has not pressed such a submission in these proceedings., After hearing the submissions of the learned counsel as well as of Mr. Jaideep Gupta and Ms. Meenakshi Arora, learned Senior Counsels, who appeared as amicus curiae, it appears to the Supreme Court of India that the problem has four dimensions., The first aspect of the problem is the methodology or formula employed by the Union Government for computing the oxygen requirement to the States and the Union Territories. As noted earlier, the formula arrived at by the expert group is based on a certain requirement of oxygen per minute for ICU and non‑ICU beds and the patient load. Allocations are made on this basis for diverse areas of the country. In view of the experience gained since the formula was adopted, it would be necessary for the Central Government to review the formula afresh and determine whether it needs to be altered with regard to the specific requirements of areas such as the National Capital Territory of Delhi, which have been seriously affected by the second surge of the pandemic. For instance, the requirement of oxygen is linked to the number of beds, both ICU and non‑ICU. Apart from institutional requirements, oxygen is also being made available to individuals who are unable to obtain hospital beds. Hence, an assessment based exclusively on the existing formula would be inadequate. This matter should engage a fresh panel of experts to consider any necessary changes or modifications to meet the exigencies of the rapidly deteriorating situation., The second aspect of the matter is the management of oxygen resources to optimise availability for the National Capital Territory of Delhi. This depends on the efficiency of the supply chain and proper distribution of oxygen from supply points to hospitals. Another sub‑aspect, already emphasized by the order of the Supreme Court of India dated 30 April 2021, is the need to build up proper oxygen stocks so that, in an emergency, alternate buffer stocks are available to prevent deaths due to supply disruption., The third aspect that needs emphasis is the actual availability of oxygen. The Supreme Court of India notes the Solicitor General's submission that scientific modalities may be put in place to conduct a scientific audit of the requirement of the National Capital Territory of Delhi. Whether such an audit reveals a higher requirement than indicated in the order of the Supreme Court of India dated 30 April 2021 will be seen. It has emerged before the Court that efficient administrative modalities were employed by the Municipal Corporation of Greater Mumbai during the second wave of the COVID‑19 pandemic. To enable the Government of National Capital Territory of Delhi and the Central Government to benefit from these experiences, a consensus has been reached that a team of officers comprising members of the Government of National Capital Territory of Delhi and the Central Government will, over the next three days, engage with officials and medical experts of the Municipal Corporation of Greater Mumbai and the expert private doctors set up by the Government of Maharashtra to derive inputs from the modalities followed for augmenting oxygen supply to Mumbai. Based on these experiences, steps can be taken in close collaboration between the Central Government and the Government of National Capital Territory of Delhi to replicate the administrative arrangements implemented in Mumbai, to the extent they are feasible for the National Capital Territory of Delhi., The Supreme Court of India will also hear submissions on whether a scientific audit can be conducted by a broad‑based team consisting of officers of the Government of National Capital Territory of Delhi, the Central Government and experts drawn from public and private sector health institutions in the National Capital Territory of Delhi., In the meantime, until the above exercise is carried out, the directions contained in the order of the Supreme Court of India dated 30 April 2021 must be duly implemented. It is prima facie not expedient at this stage to invoke the coercive arm of the law by invoking contempt jurisdiction against the two officials of the Central Government. An opportunity should be granted to the Central Government to place before the Supreme Court of India a plan specifically indicating how the requirement of the National Capital Territory of Delhi of 700 Metric Ton, as per the order dated 30 April 2021, will be complied with, pending further directions of the Court. The proceedings are adjourned to 11.00 am tomorrow when the Bench will assemble for its regular assignment of work. The Central Government shall, by 11.00 am tomorrow, place a comprehensive plan before the Supreme Court of India indicating the manner in which the direction for the allocation of 700 Metric Ton of Liquid Medical Oxygen to Delhi shall be complied with. The plan shall indicate: sources of supply; provisions for transportation; and all other logistical arrangements necessary to ensure fulfillment of the requirement of the National Capital Territory of Delhi in terms of the order of the Supreme Court of India., This plan will remain in operation pending further orders of the Supreme Court of India, when the Court will take up wider submissions both in relation to the Government of National Capital Territory of Delhi and for the rest of the country., In view of the above directions, we stay the operation of the contempt notice issued by the High Court of Delhi on 4 May 2021. However, we clarify, as we did in our previous order, that the stay of the contempt proceedings shall not operate as a restraint on the High Court of Delhi continuing to monitor the issues that have arisen before it., In order to enable the Central Government to place a comprehensive plan for allocation, supply and distribution of oxygen to meet the requirements of the Government of National Capital Territory of Delhi, we direct that a meeting shall be held this evening between the Chief Secretary, Principal Secretary (Health) of the Government of National Capital Territory of Delhi and a team of officers of the Central Government. The meeting may be held consistent with COVID‑19 protocols on a virtual platform., List the Special Leave Petitions tomorrow (6 May 2021) at 11.00 am.
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6/6 Basement Jangpura B, Delhi 110014 judicialreforms.org Patrons: Shri Shanti Bhushan, Prof. B. B. Pande, Dr. Bhaskar Rao, Ms. Arundhati Roy, Shri Pradip Prabhu, Prof. Babu Mathew, Dr. Baba Adhav, Ms. Kamini Jaiswal, Shri Mihir Desai, Shri Manoj Mitta Executive Committee: Prashant Bhushan (convenor), Cheryl D. Souza (secretary), Nikhil Dey, Alok Prasanna Kumar, Venkatesh Sundaram, Indu Prakash Singh, Anjali Bhardwaj, Amrita Johri, Annie Raja, Ramesh Nathan, Siddharth Sharma, Indira Unninayar, Vijayan M. J., Vipul Mudgal, Koninika Ray, Meera Sanghamitra, Nikhil Borwankar, Prasanna S., Honourable Chief Justice of India Supreme Court of India New Delhi August 9, 2021 Dear Sir/Madam, Please find enclosed a letter from the Campaign for Judicial Accountability and Reforms and the National Campaign for Peoples Right to Information addressed to the Honourable Chief Justice of India, Justice N. V. Ramana on the subject Live webcast of hearings on the Pegasus matter. Kindly ensure the letter is urgently brought to the notice of the Honourable Chief Justice of India. Thank you. Kind regards, Prashant Bhushan., Honourable Justice N. V. Ramana Chief Justice of India Supreme Court of India New Delhi August 9, 2021 Subject: Live webcast of hearings on the Pegasus matter Dear Chief Justice, There has been deep concern regarding the recent revelations that the Pegasus software was used to hack into the phones of Indian citizens, apparently at the behest of the Indian government. NSO, the Israeli group that developed the software, claims that it sells Pegasus only to vetted governments. Deployment of the Pegasus software has been established through cyber forensic analysis of some of the targeted phones by internationally reputed labs. Such large‑scale intrusive surveillance into the phones belonging to constitutional authorities, political leaders, journalists and activists, apart from being a violation of people’s fundamental right to privacy, is a frontal attack on our democracy., The Supreme Court of India is seized of the matter and is hearing multiple petitions seeking a probe into the issue, including petitions by individuals whose phones were on the surveillance list. Given that this case deals with matters of tremendous public interest, and its outcome will have wide ramifications for our republic, we are writing to request you to ensure live‑streaming of the hearings of the case., Investigations by media reveal that phone numbers belonging to a judge of the Supreme Court of India, registrars of the Supreme Court of India and the woman staffer (and her family members) who had accused a former Chief Justice of India of sexual harassment were potentially hacked. These revelations point to a grave threat to the independence of the judiciary. An Election Commissioner of India, leaders of opposition parties, senior journalists and activists featuring prominently in the list of people allegedly surveilled before the 2019 general elections indicate a deep subversion of electoral democracy., In the Swapnil Tripathi versus Supreme Court of India (2018) judgment, the Supreme Court of India had agreed to live‑stream proceedings in important cases. There has been significant progress in the last few years with at least some High Courts—Gujarat, Karnataka, Odisha and Madhya Pradesh—currently live‑streaming their proceedings on YouTube via their official channels, which also allows the live‑stream to be subsequently available as a recording., In your speech during the inauguration of the live‑streaming of proceedings of the Gujarat High Court, you underlined the significance of this public broadcast in ensuring greater openness and access to justice for the people of India. It is high time for demystifying the justice delivery system in the country and furthering access through open courts. Access to justice will become a true reality when litigants and interested parties get to witness, understand and comprehend justice dispensation firsthand. It is only on the back of an informed citizenry that a representative democracy can survive and evolve., We earnestly request you to initiate live‑streaming of proceedings of the Supreme Court of India in matters of public importance, starting with the Pegasus case. Thanking you, Executive Committee, Campaign for Judicial Accountability and Reforms and Anjali Bhardwaj, Nikhil Dey, Venkatesh Nayak, Rakesh Dubbudu, Pankti Jog, Pradip Pradhan, Dr. Shaikh, Amrita Johri, Kathyayini Chamaraj, Chakradhar Buddha, Kathyayini Chamraj, Ajay Jangid (on behalf of the National Campaign for Peoples Right to Information).
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Chandrapur District Central Co-operative Bank Ltd., through its Chairman, Civil Lines, Chandrapur, Tahsil and District Chandrapur; Shri Santoshsingh son of Chandansingh Rawat, aged 60 years, occupation Business, resident at Post Mul, Ward No. 11, near Rest House, Mul, Tahsil Mul, District Chandrapur; The State of Maharashtra, through its Secretary of the Ministry of Co-operation, Mantralaya, Mumbai, Maharashtra; The Commissioner of Co-operation, Pune, State of Maharashtra, Central Building, Pune, Tahsil and District Pune; Divisional Joint Registrar, Co-operative Societies, Nagpur, Tahsil and District Nagpur; District Deputy Registrar Co-operative Societies, Chandrapur, Tahsil and District Chandrapur; Shri Manohar son of Laxman Pahunkar, aged 58 years, occupation Business, resident at Laxmi Nagar, Wadgaon Road, Near Raj Lawn, Chandrapur, Tahsil and District Chandrapur; Shri Gajanan son of Wasudevrao Patode, aged 42 years, resident at Dongargaon, Tahsil Nagbhid, District Chandrapur; State of Maharashtra, through its Special Work Officer and Joint Registrar, Co-operative Societies, Department of Co-operation, Mumbai; Sudhakar son of Maluji Arjunkar, aged about 62 years, occupation Social Work, resident at Nanaji Nagar, Wadgaon Ward, Tahsil and District Chandrapur., Application No. 2865/2022. Mr. S. V. Manohar, Senior Advocate with Mr. A. M. Ghare, Advocate for petitioners. Mr. R. L. Khapre, Senior Advocate with Ms. N. P. Mehta, Assistant Government Pleader for respondent Nos. 1 to 4 and 7. Mr. N. C. Nagapure, Advocate on behalf of Mr. A. V. Band, Advocate for respondent Nos. 5 and 6. Mr. S. K. Mishra, Senior Advocate with Mr. K. Deogade, Advocate for intervener. Rule made returnable forthwith. Heard finally by consent of learned counsel appearing for respective parties., The principal challenge in this petition is to the competency of the Chief Minister in granting a stay to the staff recruitment process of the petitioner Co-operative Bank by order dated 29.11.2022., Petitioner No. 1 Chandrapur District Central Co-operative Bank Ltd. is registered under the provisions of the Maharashtra Co-operative Societies Act, 1960. Petitioner No. 2 is the elected Chairman of the petitioner bank. The bank conducts banking business under the licence of the Reserve Bank of India and has not been funded in any manner by the State Government. Its area of operation is the entire revenue district of Chandrapur, with the head office at Chandrapur. The bank has 93 branches spread over the district. The approved staffing pattern is 885 employees; over time several employees have retired, reducing the strength to 525 employees, leaving 393 posts vacant. Further vacancies are expected due to upcoming retirements., The bank is facing an acute shortage of staff, making it difficult to run various branches and adversely affecting its banking business. Considering this contingency, the Board of Directors, in a meeting dated 18.11.2021, resolved to take necessary steps for filling up vacancies by undertaking a recruitment process. The District Deputy Registrar, Co-operative Societies also attended the meeting and participated in resolving the need for recruitment. The Board resolved to forward a proposal to the Commissioner of Co-operation, Pune seeking approval for undertaking the recruitment process., Pursuant to the Board resolution dated 18.11.2021, the bank sent the proposal for approval to the respondent No. 3, Divisional Joint Registrar, Co-operative Societies, Nagpur, for forwarding to respondent No. 2, Commissioner of Co-operation, Pune. After considering the proposal and recommendations of the Divisional Joint Registrar, the Commissioner of Co-operation, by order dated 25.02.2022, accorded permission and sanction for undertaking the recruitment process. In accordance with the sanction, the bank issued a public advertisement inviting applications from reputed agencies to undertake the recruitment process., It is the petitioner's case that a political opponent, a Member of Parliament from Bhadrawati Constituency, started making false allegations against the petitioner. Writ Petition No. 2126/2022 was filed seeking appointment of an Administrator for the management of the bank. Notices were issued in that petition, but no interim orders were passed., The petitioner received a communication dated 12.05.2022 by which the recruitment undertaken by the bank was stayed. The petitioner challenged the stay order in Writ Petition No. 2689/2022, which is pending. The petitioner also made a representation dated 11.11.2022 to the Minister of Co-operation for vacating the stay. The Minister, after considering the representation, vacated the stay by letter dated 23.11.2022. The bank was about to resume recruitment when, by impugned order dated 29.11.2022, the Chief Minister again stayed the recruitment process. The petitioner learned that respondents Nos. 5 and 6 had made certain grievances to the Chief Minister, on which, without inquiry or hearing the petitioner, the stay was granted., The petitioner has challenged the impugned order of the Chief Minister on the following grounds: (1) the Chief Minister has no jurisdiction to pass the order dated 29.11.2022 when the Minister of Co-operation had already vacated the stay; (2) the order breaches principles of natural justice as the petitioners were not heard; (3) the order was passed without assigning reasons; (4) the Chief Minister did not verify the allegations made in the representation but passed the order without application of mind; (5) the bank followed the requisite procedure; (6) the recruitment proposal was sanctioned by the Commissioner of Co-operation after necessary inquiry; (7) the order was based merely on a representation made by a rival of the respondent; (8) the order is discriminatory, politically motivated and passed at the behest of the Local Guardian Minister; (9) the order does not consider the bank's acute staff shortage making it impossible to run various branches. The petitioner therefore seeks to quash the order dated 29.11.2022 granting a stay to the recruitment process., The petition was resisted by respondents Nos. 1 to 4 and 7 (State) by a joint reply‑affidavit dated 20.12.2022, sworn and verified by respondent No. 3, Divisional Joint Registrar, Co-operative Societies, Nagpur. It was stated that the matter initially came before the State Government at the instance of a complaint filed by the Member of Parliament, Mr. Suresh Dhanorkar. The Co‑operation Department processed the complaint and prepared a detailed note‑sheet with remarks of the Additional Chief Secretary. On the basis of the note‑sheet, the Minister granted a stay to the recruitment process, which was later vacated by the Minister on 23.11.2022 after the petitioners' representation. Subsequently, complaints of respondent No. 5, Mr. Manohar Pahunkar, and respondent No. 6, Mr. Gajanan Patode, were received, raising grievances against the vacating of the stay. A summary inquiry by the Department of Co‑operation revealed that the term of the existing body of the bank had expired in 2017, but elections had not been held, so the body continued as an interim arrangement., It is stated that the existing Managing Body had earlier started a recruitment process and, having indulged in corrupt practices, offences were registered against ten Directors. The Director General (Anti‑Corruption), Maharashtra State, forwarded a proposal to the Chief Secretary to prosecute the Directors for misappropriation. The Divisional Joint Registrar, Co-operative Societies also granted permission to prosecute all Directors. A special audit was conducted and directions were issued to register a First Information Report regarding financial irregularities. It is alleged that the present Board of Directors has indulged in malpractices and defrauded a sum of approximately four crores. The Divisional Joint Registrar, Co-operative Societies has initiated an inquiry under Section 88 of the Maharashtra Co-operative Societies Act., All these aspects were brought to the notice of the Chief Minister, who directed the Co‑operation Department to prepare a detailed note‑sheet on all irregularities and also a summary note‑sheet directing that the caretaker body cannot take policy decisions. Accordingly, a short summary note‑sheet was placed before the Chief Minister., According to the respondents, the stay order was vacated by the Minister of Co‑operation who acted under the Chief Minister. The Chief Minister has the power to vary, modify and vacate orders passed by the concerned Minister of Co‑operation. In substance, it is stated that the petitioners are merely a caretaker body which cannot take policy decisions for initiating recruitment. The existing Board of Directors were found indulging in corrupt practices for which criminal prosecution has been launched, and thus, the stay was necessitated by public interest., Moreover, it is submitted that the Chief Minister has not yet finally decided the matter of revoking the permission granted by the Commissioner of Co‑operation on 17.02.2022. The recruitment process is merely stayed and the petitioners would get an opportunity to put up their case before the Chief Minister. These are the contentions by which the petition has been opposed., The intervention application of one Mr. Arjunkar was allowed. He principally supported the impugned order of stay issued by the Chief Minister. He claims to be a member of an Agricultural Society which is a member of the petitioner bank. He narrated the history of some present and pending litigations between the parties. He submitted that initially, when the Minister of Co‑operation had stayed the recruitment process by order dated 12.05.2022, the petitioner filed Writ Petition No. 2689/2022, which is still pending. He also intervened in that petition. The intervener filed Writ Petition No. 2126/2022 seeking appointment of an Administrator as the tenure of the existing Executive Committee had ended in 2017. It is stated that one Mrs. Bawane filed Writ Petition No. 4547/2017 challenging the validity of Section 73AAA and Section 73B of the Maharashtra Co-operative Societies Act. In that petition, a stay was granted to the election and all similar petitions were transferred to the Principal Seat of this Court., Mr. Mishra, learned Senior Counsel appearing for the intervener, would submit that the petitioner, being a caretaker body, cannot take policy decisions. He relied on the decision of the Supreme Court in Suresh and others versus State of Maharashtra and others (Petition(s) for Special Leave to Appeal (C) No(s). 6/2021, decided on 18.02.2021). The Supreme Court restrained the then Managing Committee from taking policy decisions in an interim arrangement. The order in that case was passed on a different footing and therefore does not assist the intervener., The intervener narrated a long history of alleged malpractices in the recruitment process indulged by the petitioners and the criminal action taken thereon. It is primarily contended that since the term of the existing Board of Directors expired in 2017 and the petitioners are a caretaker body, they cannot take a policy decision. In short, the intervener resisted the petition inter alia for the above reasons., The learned counsel for the respondents as well as the intervener emphasized that the petitioner is a caretaker body and cannot take major decisions such as undertaking a recruitment process. It was submitted that in an earlier recruitment process, larger‑scale malpractice occurred, for which offences were registered against most of the Directors. Several related documents were produced to substantiate this contention. The challenge in this petition is limited to the extent of the authority of the Chief Minister to grant a stay; therefore, we need not evaluate the petitioner's credentials for conducting recruitment., Undisputed facts of the case are as follows: Petitioner No. 1 is a Co-operative Society registered under the Maharashtra Co-operative Societies Act, doing the business of banking. Petitioner No. 2 is the elected President of Petitioner No. 1 Bank. The existing Managing Committee was elected in 2012 and its term expired in 2017. By virtue of an order passed in a writ petition, the election of the Managing Committee has been stayed. Though its term has expired, the Managing Committee is functioning as a caretaker body. The head office of the bank is at Chandrapur with 93 branches in the district. The approved staffing pattern is 885 employees, of which 393 posts are vacant. The bank passed a resolution for initiating recruitment. The District Deputy Registrar, by communication dated 10.12.2021, forwarded the proposal to the Commissioner of Co‑operation, Pune with recommendations. The Commissioner, by communication dated 25.02.2022, granted approval for undertaking recruitment. The Divisional Joint Registrar, by communication dated 12.05.2022, stayed the recruitment process. The Minister of Co‑operation vacated the stay by communication dated 23.11.2022. The Chief Minister again granted a stay to the recruitment process by remark (page 80) on complaint dated 29.11.2022., Reference is made to pending proceedings. The bank has filed Writ Petition No. 2689/2022 challenging the communication dated 12.05.2022, which initially stayed the recruitment process. Mr. Vidhate and Mr. Arjunkar filed Writ Petition No. 2126/2022 seeking appointment of an Administrator to the bank, in which notices were issued. Writ Petition No. 4547/2017 was filed by Mrs. Bawane challenging the constitutional validity of Section 73AAA and Section 73B of the Maharashtra Co-operative Societies Act. Several similar petitions have been filed and all are transferred to the Principal Seat, with a stay granted to the election., The learned senior counsel Mr. Manohar, appearing for the bank, initially contended that there is an acute need to undertake the recruitment process. The approved staffing pattern is 885, of which the working strength is 521 employees; 393 posts are vacant, making it difficult to run various branches. Considering the extreme urgency, the Board of Directors, in its meeting dated 18.11.2021, resolved to take steps to undertake recruitment. This factual aspect is not disputed by the other side., It is the petitioner's contention that the bank followed due process by obtaining permission from the Commissioner of Co‑operation, Pune, as per guidelines issued by the National Bank for Agriculture and Rural Development (NABARD). The proposal was verified by the District Deputy Registrar and recommended to the Commissioner, who, after consideration, granted approval. Although the Minister of Co‑operation initially stayed the recruitment process, the stay was later vacated after realizing the exigency., The main thrust of Mr. Manohar's arguments is that the Chief Minister lacks jurisdiction/authority to stay the order passed by the concerned Minister. Conversely, Mr. Khapre, learned senior counsel for respondents Nos. 1 to 4 and 7, contended that the Chief Minister, as head of the Council of Ministers, is responsible for the acts of the Ministers and has every power to review orders passed by a Minister; therefore, there is no illegality in the impugned stay order. He further submitted that the Chief Minister merely stayed the recruitment process by directing an inquiry, and the matter is under process, making the petition premature. Additionally, it was argued that the petitioner, being a caretaker body, cannot take a policy decision such as recruitment, and that past misappropriation of huge sums during recruitment has led to criminal action., The principal issue for consideration is whether the Chief Minister has the power to stay the order passed by the Minister of Co‑operation. Both sides have advanced arguments to justify their respective positions., Mr. Manohar referred to provisions of Part VI of the Constitution of India. Article 154 vests the executive power of the State in the Governor, to be exercised by him directly or through subordinate officers. Article 163 provides for a Council of Ministers with the Chief Minister as head to aid and advise the Governor, except where the Governor is required to act in his discretion. Article 166 mandates that all executive action of a State Government be taken in the name of the Governor. Clause (3) of Article 166 makes it incumbent on the Governor to frame rules for the convenient transaction of Government business and for the allocation of business amongst Ministers, insofar as it is not a matter where the Governor must act in his discretion., The Maharashtra Government Rules of Business and Instructions issued under Clause (3) of Article 166 were considered. Rules 4 and 5 of the Rules of Business provide the mechanism for transacting business through various departments as specified in the First Schedule and for the assignment of departments among ministries., Rule 4: \The Business of the Government shall be transacted in the Departments specified in the First Schedule and shall be classified and distributed between those Departments as laid down therein.\ Rule 5: \The Governor shall, on the advice of the Chief Minister, allot among the Ministers the business of the Government by assigning one or more Departments or part of Departments to the charge of a Minister; provided that nothing in this rule shall prevent the assigning of one Department to the charge of more than one Minister.\, Rule 9, pertaining to cases to be brought before the Council of Ministers in terms of the Second Schedule to the Rules, empowers the Chief Minister or the Minister-in-charge, with the consent of the Chief Minister, to bring the subject before the Council of Ministers. It reads: \All cases referred to in the Second Schedule shall be brought before the Council (i) by the direction of the Governor under clause (c) of Article 167; (ii) by the direction of (a) the Chief Minister; or (b) the Minister-in-charge of the case with the consent of the Chief Minister; provided that no case in regard to which the Finance Department is required to be consulted under Rule 11 shall, save in exceptional circumstances under the directions of the Chief Minister, be discussed by the Council unless the Finance Minister has had opportunity for its consideration.\ The Second Schedule to Rule 9 encompasses 28 subjects which can be brought before the Council of Ministers., Rule 10 addresses the responsibility of the Minister-in-charge of a department: \(1) Without prejudice to the provisions of Rule 8, the Minister-in-charge of a Department shall be primarily responsible for the disposal of the business appertaining to that Department or part of the Department. (2) Every Minister, Minister of State, Deputy Minister and Secretary shall transmit to the Chief Minister all such information with respect to the business of the Government as the Chief Minister may from time to time require to be transmitted to him.\, Mr. Manohar submitted that executive power is vested in the Governor while the Chief Minister is only the head of Ministers. The Governor can allocate business to a Minister on the advice of the Chief Minister, and the Minister-in-charge shall be the head of his portfolio. He argued that the Chief Minister's power is limited to the distribution of business and not beyond that. Unless express power is conferred on the Chief Minister by Business Rules or Instructions, he cannot act as a reviewing or appellate authority. Orders passed by a Minister are orders on behalf of the State Government, and the Chief Minister has no supervisory power to interfere with those orders., Emphasis was placed on the submission that a Minister cannot go beyond the allocation of business specified under the Rules. The Rules of Business do not confer power on the Chief Minister to review orders of a Minister. Mr. Manohar referred to Instruction No. 3, which states that a case shall be deemed to belong to the department to which, under the Schedule to the Rules, the subject matter pertains. If a question arises regarding the department, the decision of the Minister-in-charge of the concerned department shall be final, and if departments are under different Ministers who cannot agree, the Chief Minister shall decide the question., Instruction No. 4 was cited to show that ordinarily the business is to be carried out by the Minister-in-charge: \Except as otherwise provided in these Instructions, cases shall ordinarily be disposed of by, or under the authority of, the Minister-in-charge, who may by means of standing orders give such direction as he thinks fit for the disposal of cases in the Department. Copies of such standing orders shall be sent to the Governor and the Chief Minister.\, Instruction No. 8 confers power on the Minister-in-charge to dispose of all cases of the said department and to control the entire affairs of his department: \(1) Subject to the Rules and the other provisions in these instructions, the Minister-in-charge may dispose of all cases arising in departments which he controls. (2) When a difference of opinion arises on any question between departments which the same Minister controls, the Minister may decide the question.\, Instruction No. 15 only specifies the class of cases which shall be submitted to the Chief Minister before issuance of orders. Apart from Instruction No. 15, the Rules of Business or Instructions do not confer any power on the Chief Minister. Instruction No. 11 only empowers the Chief Minister to call for papers and nothing more., Reliance was placed on the decision of the Karnataka High Court in BPL Group of Companies Karmikara Sangha versus State of Karnataka and others (ILR 1999 KAR 3520). The Court held that the Chief Minister had no authority to interfere with an order passed by the Labour Minister, as all business allotted to a department under the Business Rules must be disposed of by the Minister-in-charge. The Chief Minister's intervention was neither authorized nor permitted under the Act, the Business Rules, and the Transaction Rules, and therefore the order of the Chief Minister was set aside., Mr. Khapre took multiple stands to defend the impugned stay order. Initially, he relied on Instruction No. 11 to contend that the Chief Minister had powers to take a decision in connection with any department. He then argued that the Chief Minister granted the stay while referring the subject to the Council of Ministers. He also suggested that the stay was effectively a Committee decision in which the concerned Minister of Co‑operation was a party, thus assuming the character of a stay by the Minister., Instruction No. 11 was specifically relied upon to contend that the Chief Minister, as head of the Council of Ministers, has every authority to see papers relating to any department, and that the power to see includes the power to decide. The instruction reads: \(1) Subject to the provisions of instructions 55(1) where the Chief Minister desires to see papers relating to any case in any Department any requisition made by the Chief Minister in that behalf shall be complied with by the Secretary in the Department in which the case belongs; (2) Where a Minister, Minister of State or a Deputy Minister desires to call for papers belonging to another Department he shall personally address a requisition for the papers to the Minister-in-charge of that Department; and if papers are urgently required, to the Secretary in the Department to which the case belongs. In either case, the Secretary shall submit the papers to the Minister-in-charge of his department, who will decide whether the papers should be shown to the Minister, Minister of State or Deputy Minister, who has called for the papers. Before he decides to withhold the papers, he should show them to the Chief Minister and take his instruction in the matter. (3) The Chief Secretary may ask to see papers relating to any case in any Department, and any such requisition shall be complied with by the Secretary in the Department concerned.\, Instruction No. 21 was cited to show that the Chief Minister may direct that any case referred to in the Second Schedule may, instead of being brought up for discussion at a Council meeting, be circulated to the Ministers for opinion. If all Ministers are unanimous and the Chief Minister thinks a Council discussion is unnecessary, the case shall be decided without such discussion. If the Ministers are not unanimous or the Chief Minister thinks a discussion is necessary, the case shall be discussed at a Council meeting. The instruction also requires that a memorandum giving a gist of the papers be sent to the Governor. Clause 26 of the Second Schedule, a residuary subject, reads: \Cases required by the Chief Minister to be brought before the Council.\, It was submitted that Instruction No. 11 empowers the Chief Minister to call for papers and peruse any department, and that the power to call for and see papers includes the power to pass incidental orders. Instruction No. 21, coupled with Item 26 of the Second Schedule, authorises the Chief Minister to bring any subject before the Council of Ministers. It was argued that, in order to exercise this power, the Chief Minister directed an inquiry and, in the interregnum, granted a stay. Thus, the action of granting a stay cannot be said to be beyond the competence of the Chief Minister.
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We have carefully examined rival submissions and considered the relevant Rules of Business and Instructions issued thereunder. There is no dispute that Article 166 of the Constitution of India empowers the Governor to make Rules for smooth transaction of business of the Government and for allocation of business amongst the Ministers. Both learned senior counsels agree that business of the Government shall be transacted and governed by these Rules and Instructions only. First Schedule to Rule 4 carves out twenty‑three Departments/portfolios, the twenty‑third subject being the Co‑operation and Textile Department. Undisputedly, the Governor shall allocate business amongst the Ministers on the advice of the Chief Minister, and the concerned Minister would be in charge of that particular department. There is no dispute that the portfolio of Co‑operation has been assigned to a separate Minister, meaning that the department was not retained by the Chief Minister. The departments shall be run through the Secretary of each department., Rule 10(1) specifies that the Minister in charge of a particular Department shall be primarily responsible for the disposal of business pertaining to the concerned department. Rules indicate that although a particular department has been allocated to the Minister by the Governor on the advice of the Chief Minister, the said Minister shall transact business of the allocated department and shall be responsible for the same., We are unable to see any Rule amongst Rules 1 to 15 which empowers the Chief Minister to intermeddle with the business of a department assigned to another Minister. Neither do the Instructions confer supervisory or appellate powers on the Chief Minister to review or reverse the decision or business transacted by the Minister in charge. Instruction No. 4 specifies that ordinarily cases of a particular department shall be disposed of by the Minister in charge or under his authority. Instruction No. 8(1) provides that a Minister in charge may dispose of cases arising from the Departments with which he is in control. The orders passed by the concerned in‑charge Minister would assume the character of an order of the State Government., Mister Khapre has laid more emphasis on Instruction No. 11 to contend that the Chief Minister has unbridled powers to deal with any subject. No doubt, Instruction No. 11 authorizes the Chief Minister to call for and see papers relating to any case in any department, but that does not mean he can take a decision thereon. Unless there is express power under Rules or Instructions, nothing can be assumed in that regard. Instruction No. 11 pertains to inter‑department connectivity. Sub‑clause (1) authorizes the Chief Minister to see papers of any department, whilst Sub‑clause (2) provides a mechanism for a Minister to call for papers from another department. Sub‑clause (3) empowers the Chief Secretary to see papers relating to any department., The submission of learned counsel Mister Khapre that the term ‘see papers’ includes the authority to pass orders pertaining to any department, if accepted, then by the same analogy under Sub‑clause (3) the Chief Secretary can also pass orders in the subject of any department as he is empowered under Instruction 11(3) to see papers of any department. Reading of Instruction No. 11 only conveys that the Chief Minister as well as the Chief Secretary have power to see papers of any department, and on their desire the related department shall make the papers available. However, with respect to looking through papers of other departments by a particular Minister, a separate mechanism is provided under Clause (2) of Instruction No. 11. Therefore, Instruction No. 11 is restricted to seeing papers and in particular authorizes only the Chief Minister and the Chief Secretary to have free access to papers of all departments. It does not mean that they can pass orders pertaining to other departments, and such an interpretation would lead to absurdity., Mister Khapre also relied on the decision of the Supreme Court of India in the case of Rajureshwar Associates Vs. State of Maharashtra and others, All India Reporter 2004 Supreme Court 3770 to contend that in terms of Rule 11 the Chief Minister has authority to take decisions of any Government Department. The reliance is misplaced. The case pertains to sale of Government land exceeding a value of Rs 5 lakhs. In that case the Chief Minister informally directed that there was no need to submit the case before the Cabinet. Accordingly, the matter was not placed before the Cabinet in terms of Rule 11(2) and therefore the decision of the Government not to sell the land was upheld. It was observed that the requirement under the Rules of Business cannot be bypassed. The decision does not support the respondents’ contention that Rule 11 empowers the Chief Minister to take decisions about a matter pertaining to any department. Mister Khapre also relied on the decision of the Supreme Court of India in the case of Narmada Bachao Andolan Vs. State of Madhya Pradesh, All India Reporter 2011 Supreme Court 3199, which has no relevance to the matter at hand., Mister Khapre took another stand that in terms of Instruction No. 21 the Chief Minister can direct that any case referred to in the Second Schedule be placed before the Council of Ministers. Reading of Instruction No. 20 clarifies that Instruction No. 21 pertains to Instruction No. 9, which relates to inter‑department affairs. Instruction No. 9 is meant for cases concerning more than one department. Instruction No. 20 states that inter‑department cases shall be submitted to the Chief Minister with a view to obtain orders for circulation in terms of Instruction No. 21. Thus, Instruction No. 21 provides a mechanism for considering any subject by circulation only. Therefore, the submission in that regard is unacceptable., On the same lines, Mister Khapre took us through the powers of the Chief Minister envisaged under Rule 9(ii)(a), which authorize the Chief Minister to bring any subject contained in the Second Schedule before the Council of Ministers. According to him, in terms of Item 26 of the Second Schedule, the Chief Minister can bring any subject before the Council of Ministers. An attempt has been made to argue that since the Chief Minister is empowered to bring any subject before the Council of Ministers, in the present case he has directed to initiate inquiry and granted stay with a view to bring the said subject before the Council of Ministers. There can be no dispute that the Chief Minister can bring any subject before the Council of Ministers, but it does not mean that he is empowered to pass orders on any subject before he places the matter before the Council of Ministers., We have examined the said submission on the factual background of the case. According to Mister Khapre, the Chief Minister was desirous of placing the subject before the Council of Ministers and therefore granted a stay. Though it is canvassed that the Chief Minister would shortly take the matter before the Council of Ministers, the submission has no factual foundation. There is nothing on record nor in the affidavit in reply or note‑sheet that indicates that the Chief Minister has undertaken or is in the process of referring the matter to the Council of Ministers in terms of powers vested under Rule 9(ii)(a) of the Rules. In absence of a specific stand, the submission cannot be accepted, and even then he cannot pass orders on the subject while bringing the case before the Council., Two‑fold submission has been made, perhaps in the alternative form. It has been submitted that the complaints of respondent No. 5 Mister Manohar Pahunkar and respondent No. 6 Mister Gajanan Patode were received by the office, a note‑sheet (page 153) was prepared and placed before the Committee consisting of the Executive Officer, Joint Registrar, Co‑operation Department, Additional Chief Secretary, the concerned Minister and the Chief Minister. The Committee took a unanimous decision to stay the recruitment and therefore the order of stay also assumes the character of a stay granted by the concerned Minister. An effort was made to justify the stay order by submitting that it was a decision of the Committee consisting, amongst others, the concerned Minister., Apparently, multiple defences have been taken to justify the impugned order of stay. Firstly, Mister Khapre laid emphasis on the point that the Chief Minister has power to grant a stay by virtue of Instruction No. 11(1). The second stand is that since the Chief Minister is empowered to place any subject before the Council of Ministers, in that bid he has taken up the matter and only in the process of placing the subject before the Council of Ministers has granted a stay order. The third stand is somewhat contradictory to the above submissions. It has been stated that note‑sheet (page 153) was placed before the Committee of which the Chief Minister was one of the members including the Minister of Co‑operation. It is argued that on the note‑sheet, though the Chief Minister remarked to grant a stay, the note‑sheet was also signed by the concerned Minister and thus it assumes the character of a stay order granted with concurrence of the Minister. As a matter of fact, no such stand was taken by the State in its reply‑affidavit dated 20 December 2022. The reply is silent about formation of a Committee or that a unanimous decision was taken by the Committee to grant the stay. The specific stand taken by the State in paragraph 10 of the reply‑affidavit reads as follows: “That all these points were revealed before the Hon'ble Chief Minister by the department orally. That it is submitted that the Hon'ble Chief Minister ordered the Department to prepare a detailed note‑sheet on all these irregularities, however, asked the department to prepare a summary note‑sheet asking the department that the caretaker body cannot take policy decision having regard to the urgency of the matter. That a short summary note‑sheet was placed before the Hon'ble Chief Minister and said note‑sheet is enclosed herewith as Annexure‑R‑11 (page 153). That it is thus apparent that the stay was vacated by the Hon'ble Minister of Co‑operation who always acts under the Hon'ble Chief Minister and the Hon'ble Chief Minister can vary, modify, vacate the orders of the Minister of Co‑operation.”, Rather, the above portion of the reply‑affidavit is in the form of justification to the order of stay granted by the Chief Minister. The reply indicates that the matter was orally informed by the department to the Chief Minister who in turn directed the Department to prepare a note‑sheet which is Annexure‑R‑11 (page 153). The reply further states that the earlier stay order was vacated by the concerned Minister who always acts under the Chief Minister and thus the Chief Minister can vary, modify and vacate the order of the concerned Minister. The reply is contrary to the submission made before us that the matter was placed before the Committee and the decision to grant stay was a Committee decision of which the concerned Minister was a member. Moreover, it is not explained what was the constitution of the Committee and under which Rules or Instruction the Committee was created., The matter can also be looked at from another angle. There is an attempt at treating the note‑sheet (page 153) as an order of the concerned Minister which cannot be accepted., The first paragraph has demolished the submission that the matter was placed before the Committee and that the Committee’s decision granted the stay. The note‑sheet itself begins with reference to the fact that on the complaints of respondent No. 5 Mister Manohar Pahunkar and respondent No. 6 Mister Gajanan Patode, the Chief Minister has granted a stay with direction to prepare a report. Thus, before acting on the note‑sheet, the Chief Minister had already granted a stay to the Minister’s order, which is the impugned order separately passed on the complaint (page 80). Therefore, there is no substance in the submission that the Committee consisting of the Chief Minister and the concerned Minister considered the matter and thereafter granted a stay. As a matter of fact, the Chief Minister had already granted a stay by passing the impugned order on the complaint dated 29 November 2022 filed by respondent No. 5 Mister Manohar Pahunkar and respondent No. 6 Mister Gajanan Patode. Thus, the position is clear that the stay was not granted by the concerned Minister, but it was an act of the Chief Minister alone., Moreover, the note‑sheet reveals that it was merely signed by the rest, and the Chief Minister has only remarked to grant a stay which also needs consideration. The remark has no bearing as in the first paragraph of the note‑sheet it is stated that the Chief Minister has already granted a stay. Obviously, the note‑sheet was prepared as per direction of the Chief Minister subsequent to the grant of stay and thus there can be no ratification by the subsequent remarks. The note‑sheet indicates that the file was moved from the authorities of which two were absent, whilst two have only signed. When the note‑sheet came to the Chief Minister, he remarked thereon to grant a stay. Therefore, in any eventuality, it cannot be said that it was a joint decision to grant a stay. Hence, we do not find any force in the submission, which is nothing but an attempt to shield the order of the Chief Minister., Mister Khapre relied on the decision of the Supreme Court of India in the case of Lalaram and others Vs. Jaipur Development Authority and another with connected matters, (2016) 11 Supreme Court Cases 31 to make a two‑fold submission that minor irregularities will not make the action illegal and that the Chief Minister has residuary powers to pass orders in any case. In this regard, he referred to paragraphs 61, 67, 73 and 105 of the decision. We have gone through the decision carefully but are unable to find how it supports the contention that the order of the Chief Minister is a mere irregularity. In fact, the basic contention of the petitioner was that the Chief Minister has no power to pass orders when the business of the Co‑operation Department was allocated to the concerned Minister. Mere non‑compliance would not render the executive action invalid if otherwise validly taken as per the Rules of Business, however the action must be in accordance with the Rules of Business., The second submission about residuary powers of the Chief Minister is based upon the Rajasthan Rules of Business, where the residuary powers are vested with the Chief Minister in terms of Rule 31(2)(xix). Mister Khapre is unable to point to any Rule of Business or Instruction framed by the Governor of Maharashtra in terms of Article 166(3) of the Constitution of India which vests such residuary powers with the Chief Minister. Moreover, the subject at hand cannot be said to be a case involving policy or matter of urgent public importance; therefore, the decision would not assist the respondents in any manner., Last, the reliance of Mister Khapre is on the decision of the Supreme Court of India in the case of Jayantbhai Manubhai Patel & ors. Vs. Arun Subodhbhai Mehta & ors., All India Reporter 1989 Supreme Court 1289 to contend that by virtue of Section 21 of the General Clauses Act, the power to pass the impugned order is implicit. Section 21 of the General Clauses Act states that a power to make an order includes power to add, amend, vary or rescind the order. However, the authority must be vested with the initial power to deal with the subject and only then does Section 21 aid the passing of incidental orders. In the present case, the initial power to pass orders on the subject assigned to the Co‑operation Ministry has not been demonstrated and therefore Section 21 could not be made applicable to justify the impugned order., Mister Khapre, learned senior counsel, would submit that the impugned order of stay was an interim order and the Chief Minister is yet to hear and decide the proceeding. The petitioners would get an opportunity to put up their case before the Chief Minister and therefore, the order being of interim nature does not call for interference. In response, it is submitted that since the Chief Minister has no authority to pass interim orders or to stall the order of the concerned Minister, the proceeding itself is illegal, without jurisdiction and therefore the petitioners are not required to submit to the said authority., On the issue of maintainability of the writ petition, learned counsel Mister Manohar relied on the decision of the Supreme Court of India in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & others (1998) 8 Supreme Court Cases 1. In that decision it was observed that the existence of an alternate remedy would not operate as a bar in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is violation of principles of natural justice; or (iii) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. Even in the present case it is not a plea of the other side that an alternate remedy is available. The petitioner claims violation of principles of natural justice and that the order impugned is wholly without jurisdiction., Admittedly, the Chief Minister was not the head of the Co‑operation Department, but the department was assigned to a separate Minister. There is no authority or power vested in the Chief Minister as per the Rules of Business and Instructions to have supervisory powers over the decision taken by the concerned Minister. Nor do the Rules indicate that the Minister is subordinate to the Chief Minister as regards independent functioning of a department assigned to him by the Rules. Subordination must be expressed either by a statute or the Rules of Business. Once the powers are distributed by the Rules of Business and Instructions, there must be an express provision authorizing the Chief Minister to indulge in the matter assigned to the particular Ministry. Since a Minister in charge of a department is supposed to function for the concerned department, he is responsible for the affairs thereof and his orders would assume the character of an order passed by the State Government. There is no provision in the Business Rules to go beyond allocation of work. Rule 15 of the Business Rules specifies the classes of cases which shall be submitted to the Chief Minister before issuance of orders, but the concerned subject does not fall within the specified subjects contained therein. The order of granting permission for recruitment is of administrative nature which can be reviewed, but only by the In‑charge Minister. The intervention of the Chief Minister is not authorized under the Business Rules and the Instructions issued thereunder. The intervention of the Chief Minister is wholly unwarranted and without the authority of law., In the result, we hold that the Chief Minister has no independent power assigned under the Rules of Business and Instructions issued thereunder to review or modify the decision taken by the concerned In‑charge Minister; therefore, the impugned order of stay granted by the Chief Minister will not stand on this legal touchstone. In that view of the matter, the writ petition is allowed. The impugned order of stay dated 29 November 2022 passed by the Chief Minister is hereby quashed and set aside., Rule is made absolute in terms of prayer clause (A) of the petition. No costs.
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Reportable Writ Petition (Civil) No. 1281 of 2021 Dilip B. Jiwrajka, Petitioner(s) versus Union of India and others, Respondent(s)., Writ Petition (Civil) Diary No. 18674/2022, Diary No. 29889/2022, Diary No. 36132/2022, Diary No. 36130/2022, Diary No. 40974/2022, Diary No. 42246/2022, Diary No. 4241/2023, Diary No. 4379/2023, Diary No. 20508/2023., Doctor Dhananjaya Y. Chandrachud, Chief Justice of India., In a batch of three hundred and eighty‑four petitions under Article 32 of the Constitution, the petitioners challenge the constitutional validity of Sections 95 to 100 of the Insolvency and Bankruptcy Code, 2016. The individual facts of each case are not reproduced because the issue is the constitutionality of the aforementioned provisions of the Insolvency and Bankruptcy Code., The principal aims of the Insolvency and Bankruptcy Code are to promote investment and to resolve insolvencies of corporate persons, firms, and individuals in a time‑bound manner. The Code consolidated and amended a fragmented body of laws that had resulted in an ineffective and inefficient mechanism for the resolution of insolvencies, marked by significant delays., Part III of the Insolvency and Bankruptcy Code deals with insolvency resolution and bankruptcy for individuals and partnership firms. Chapter III of Part III, titled Insolvency Resolution Process, comprises Sections 94 to 120. Prior to the introduction of the Code, insolvency in relation to individuals was governed by the Presidency Towns Insolvency Act, 1909 and the Provincial Insolvency Act, 1920, both of which have been repealed., The provisions of the Insolvency and Bankruptcy Code apply to personal guarantors of corporate debtors. In exercise of the power conferred by Section 1(3), a notification was issued on 15 November 2019 by the Union Government in the Ministry of Corporate Affairs bringing into force Section 2(e), Section 78 (except with regard to the fresh start process), Section 79, Sections 94 to 187, Sections 239(2)(g), (h) and (i), Sections 239(2)(m) to (zc), Sections 239(2)(zn) to (zs) and Section 249. The notification was challenged before this Court. In *Lalit Kumar Jain v. Union of India*, a two‑Judge Bench held that the liability of a guarantor is not discharged merely on the discharge of the corporate debtor., By the Amending Act 26 of 2018, Parliament introduced amendments, inter alia, in Section 60 which provides for the jurisdiction of the adjudicating authority, namely the National Company Law Tribunal. The amendments to Section 60 comprehend the jurisdiction of the Tribunal in matters involving the bankruptcy of a corporate guarantor or personal guarantor of a corporate debtor., Part I of the Insolvency and Bankruptcy Code deals with preliminary matters such as its application and definitions. Part II deals with insolvency resolution and liquidation for corporate persons. Part III deals with insolvency resolution and bankruptcy for individuals and partnership firms. Part IV provides for the regulation of insolvency professionals, tribunal agencies and information utilities. Part V contains miscellaneous provisions., Chapter I of Part III contains preliminary provisions, including definitions. Section 78 indicates that the Part shall apply to matters relating to fresh start, insolvency and bankruptcy of individuals and partnership firms where the amount of default is not less than one thousand rupees, although the Central Government may specify a higher threshold not exceeding one lakh rupees. Section 79(1) provides that the adjudicating authority for the purpose of Part III means the Debt Recovery Tribunal constituted under sub‑section (1) of Section 3 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Chapter II, which is yet to be brought into force, contains provisions relating to the fresh start process., Chapter III provides for the insolvency resolution process. Under Chapter III, the insolvency resolution process can be initiated by a debtor or a creditor. Section 5 enables a debtor who commits a default to apply, either personally or through a resolution professional, to the adjudicating authority for initiating the insolvency resolution process., Section 94 allows a debtor who commits a default to apply, either personally or through a resolution professional, to the adjudicating authority for initiating the insolvency resolution process by submitting an application. The application must be in respect of debts that are not excluded debts, and the debtor must not be an undischarged bankrupt, undergoing a fresh start process, undergoing an insolvency resolution process, or undergoing a bankruptcy process. An application cannot be made if an application under this Chapter has been admitted in respect of the debtor during the preceding twelve months. The application must be in the form and manner prescribed and accompanied by the prescribed fee., Section 95 enables a creditor to apply for the initiation of the insolvency resolution process either by himself, jointly with other creditors, or through a resolution professional. The application must be in the form and manner prescribed by the Rules framed by the Central Government under Section 239, and a copy of the application must be furnished to the debtor. Immediately on the filing of an application under Section 94 or Section 95, an interim moratorium operates by virtue of Section 96, and the adjudicating authority is required to stay all legal actions relating to the debts., Section 96 provides that when an application is filed under Section 94 or Section 95, an interim moratorium commences on the date of the application in relation to all debts and ceases to have effect on the date of admission of such application. During the interim moratorium, any legal action or proceeding pending in respect of any debt is deemed to be stayed, and the creditors of the debtor shall not initiate any legal action or proceedings in respect of any debt. Where the application is made in relation to a firm, the interim moratorium operates against all the partners of the firm as on the date of the application, subject to any transactions notified by the Central Government in consultation with a financial sector regulator., Section 97 deals with the appointment of a resolution professional. Where the application is filed through a resolution professional, the adjudicating authority must direct the Insolvency and Bankruptcy Board of India within seven days to confirm that no disciplinary proceedings are pending against the resolution professional. The Board then either confirms the appointment or rejects it and nominates another resolution professional within seven days. Where the application is filed by the debtor or creditor without a resolution professional, the adjudicating authority must direct the Board to nominate a resolution professional within seven days, and the Board has ten days to make the nomination. The adjudicating authority shall, by order, appoint the resolution professional recommended by the Board or nominated by the Board., Section 98 contains provisions for the replacement of the resolution professional, and Section 99 contains provisions for the submission of a report by the resolution professional to the adjudicating authority. Under Section 99(1), the resolution professional must examine the application within ten days of appointment and submit a report recommending approval or rejection of the application. The resolution professional may require the debtor to prove repayment of the debt by furnishing evidence of electronic transfer, encashment of a cheque, or a signed acknowledgment by the creditor. If the debt is registered with an information utility, the debtor cannot dispute its validity. The resolution professional may seek further information or explanation from any person, and the requested person must furnish such information within seven days. The report must record the reasons for acceptance or rejection and a copy must be given to the debtor or creditor., Section 100 provides that the adjudicating authority shall, within fourteen days of the submission of the report under Section 99, pass an order either admitting or rejecting the application for insolvency resolution. If the application is admitted, the adjudicating authority may, on the request of the resolution professional, issue directions for negotiations between the debtor and creditors to arrive at a repayment plan and must provide a copy of its order, together with the report and the application, to the creditors within seven days. If the application is rejected on the ground that it was made with an intent to defraud the creditors or the resolution professional, the order shall record that the creditor is entitled to file for bankruptcy under Chapter IV., Section 101 provides that when an application is admitted under Section 100, a moratorium shall commence in relation to all debts and shall cease to have effect at the end of a period of one hundred and eighty days beginning with the date of admission of the application or on the date the adjudicating authority passes an order on the repayment plan under Section 114, whichever is earlier. During the moratorium period, any pending legal action or proceeding in respect of any debt is deemed to be stayed, the creditors shall not initiate any legal action or proceedings, and the debtor shall not transfer, alienate, encumber or dispose of any of his assets, legal rights or beneficial interest., The moratorium remains in force for a period of one hundred and eighty days or until an order approving the repayment plan is passed, whichever is earlier. The effect of the statutory moratorium is that any pending legal action in respect of the debt is stayed, no new action may be initiated by the creditors, and the debtor is prohibited from transferring or alienating his assets or legal rights., The remaining provisions of Chapter III relate to the issuance of public notices, invitation of claims from creditors, registration of claims, preparation of the list of creditors, formulation of a repayment plan, meetings of creditors, rights of secured creditors, approval of the repayment plan by creditors and the order of the adjudicating authority on the repayment plan. Consequential provisions have been made in the remaining provisions of Part III for the completion of the repayment plan (Section 117) and a discharge order (Section 119)., In exercise of the powers conferred by Section 239, the Central Government has notified the Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019, which specify the form in which applications must be submitted under Sections 94 and 95., Doctor Abhishek Manu Singhvi, senior counsel, submitted that the Insolvency and Bankruptcy Code is an invasive in rem proceeding and is highly prejudicial against the respondent. He argued that before initiating insolvency proceedings and appointing a resolution professional, there must be a judicial determination of the existence of a debt. He contended that an automatic interim moratorium, automatic appointment of a resolution professional, the resolution professional’s power to seek information from the guarantor, and the resolution professional’s examination of that information should not occur without judicial adjudication. He further maintained that these steps are not reversible under Section 100, which is the first stage at which a judicial body adjudicates and furnishes the guarantor with a hearing. He emphasized that the power to seek information from guarantors and third parties is untrammeled and routinely exercised, and that natural justice must be afforded unless expressly excluded by statute., Senior counsel Dr. Singhvi further submitted that the jurisdiction to entertain an application under Chapter III of Part III must be determined at the threshold by giving the debtor or personal guarantor an opportunity to be heard. He argued that the adjudicating authority should first determine whether a debt exists and whether the debt has been effaced before appointing a resolution professional under Section 97(5). He stressed that without a hearing before the adjudicating authority, the provisions of Sections 95 to 100 would be arbitrary and violative of Article 14 of the Constitution., Mr. Ritin Rai, senior counsel, argued that the existence of a debt is a jurisdictional fact that must be determined by the adjudicating authority at the very threshold of a Section 95 application. He noted that Section 97(5) requires the adjudicating authority to appoint a resolution professional, which is the first interface of the adjudicating authority and must be satisfied by a finding of a creditor‑debtor relationship. He warned that the broad powers granted to the resolution professional under Section 99(4) have serious consequences for the debtor, including potential impairment of creditworthiness, and that natural justice must be read into the provisions at that stage., Other counsel appearing in support of the petitions included Mr. Rajiv Dutta, Mr. Prateek Seksaria, senior counsel, Mr. Arvind Kumar Gupta, Mr. Vijay Kumar Singh, Mr. Masoom Shah, Ms. Pooja M. Saigal, Mr. Abhimanyu Bhandari, Ms. Nina R. Nariman, Mr. Mohit Chaudhary, Ms. Eeshna Kumar, Ms. Purti Gupta, Mr. Subhankar Nag, Ms. Tahira Karanjawala and Mr. Mathews J. Nedumpara. Their supplementary submissions were considered at a subsequent stage of the judgment., Mr. Tushar Mehta, Solicitor General appearing on behalf of the Union of India and the State Bank of India, submitted that time‑bound resolution of insolvency is the heart and soul of the Insolvency and Bankruptcy Code. He explained that Part II deals with corporate insolvency and Part III deals with insolvency and bankruptcy of individuals and partnership firms, containing distinct provisions. He noted that under Sections 7 and 9, the admission of an application triggers the corporate insolvency resolution process and a moratorium under Section 14, which directly impacts the corporate debtor by preventing transfer, encumbrance, alienation or disposal of assets. He contrasted this with the interim moratorium under Section 96, which benefits the guarantor or debtor and does not impose an embargo on alienation of assets, legal rights or beneficial interest of the debtor, thereby distinguishing it from the moratorium under Section 14.
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The function of a resolution professional under Section 99 is not of an adjudicatory nature. The purpose of a resolution professional under Part III of the Insolvency and Bankruptcy Code is only to collate facts. Section 99, in any event, does contemplate a sufficient opportunity to the debtor in the process of formulating the recommendation of the resolution professional to the adjudicatory body. This is evident from the provisions of Section 99(2) in terms of which the resolution professional may require the debtor to prove the payment of debt. Moreover, in terms of sub‑section (6), the resolution professional has to examine the application and ascertain whether the application satisfies the requirements of Section 94 or Section 95. The resolution professional has to ascertain that the applicant has provided information and furnished an explanation which is sought under sub‑section (4). The process which is followed by the resolution professional in Section 99 only results in a report containing a recommendation either that the application should be accepted or rejected. Such a report does not have a binding character on the adjudicating authority. Absolute compliance with the principles of natural justice is implicated at the stage when the adjudicating authority exercises its jurisdiction under Section 100 for the purpose of determining whether to admit or reject the application. A hearing is contemplated at that stage when an adjudication takes place and adverse consequences ensue., In other words, it has been submitted by the Solicitor General that the requirement of observing the principles of natural justice arises at the adjudicatory stage under Section 100; the process which is followed by the resolution professional is only for the purpose of collating facts and submitting a report together with recommendations to the adjudicating authority which does not possess the character of a submission which binds the adjudicating authority; even during the course of the process which is followed by the resolution professional, the statute has indicated sufficient engagement for the debtor with the resolution professional; the imposition of a moratorium under Section 96 is intended to insulate the debtor and, unlike the moratorium under Section 14 or Section 101, is of no prejudice to the debtor; and consistent with the timelines provided by the Insolvency and Bankruptcy Code, it would be inappropriate to read compliance with the principles of natural justice at a stage anterior to Section 100 since it would dislocate the entire scheme., Mr Rakesh Dwivedi, senior counsel appearing on behalf of the State Bank of India, has urged that the concept of natural justice is flexible in nature and has to be tailored to the needs of a given situation; the object of the Corporate Insolvency Resolution Process in Part II and in Chapter III of Part III is entirely distinct: Part II envisages the exclusion of the existing management from the affairs of the corporate debtor, a drastic moratorium comes into place, and following an unsuccessful resolution plan, liquidation follows; in contrast, Chapter III of Part III seeks in the first instance a repayment plan which is preceded by an examination by the resolution professional as to whether there is a loan, there is a repayment, and the nature of the repayment plan if there is a continuing default; bearing in mind the distinct statutory features of Part II and Part III, Chapter III of Part III has contemplated appointment of a resolution professional straight away preceding the performance of an adjudicatory function by an adjudicatory body; if, as submitted by the petitioners, an adjudicating authority was required to make a threshold determination at the stage when it appoints the resolution professional under Section 97(5), the subsequent stage of Section 99 would be rendered otiose; Parliament has, in a calibrated manner, interposed a resolution professional before the adjudicatory stage under Section 100 bearing in mind the limited role of the resolution professional which is to gather information, examine the application submitted under Sections 94 or 95 and determine whether it meets the requirements of the statute; Section 99(3) which provides that the debtor shall not be entitled to dispute the validity of the debt where the debt has been registered with the information utility applies only to the examination by a resolution professional and does not impose a bar on the adjudicating authority; and Section 99(6) uses the expressions examine, ascertain and satisfies. Sub‑section (7) of Section 99 contemplates a recommendation by a resolution professional while sub‑section (9) requires that the report should contain reasons. The debtor is involved at every stage of the process. The statute has provided for sufficient compliance with the principles of natural justice. Moreover, there is a valid classification in law between the Corporate Insolvency Resolution Process for corporate debtors and the insolvency resolution process of individuals. Distinct provisions have been justifiably made by Parliament bearing in mind that such a classification is based on an intelligible differentia and, hence, it meets the requirement of Article 14 of the Constitution., Mr Nakul Dewan, senior counsel, has opposed the petitions on the basis that, when properly read and implemented, there is no significant civil consequence on a debtor or personal guarantor before the stage of adjudication under Section 100; therefore, there is no breach of natural justice under Chapter III of Part III of the Insolvency and Bankruptcy Code; and the procedure outlined under Chapter III serves the avowed purpose of the Insolvency and Bankruptcy Code to work towards rehabilitation, with liquidation of a corporate debtor or bankruptcy of an individual debtor or partnership being only a last resort if rehabilitation fails., Buttressing the above submissions, Mr Dewan urged that prior to the notification of 15 November 2019, this Court had to determine whether insolvency proceedings could continue against a guarantor notwithstanding the discharge of a corporate debtor. This, it was urged, has been answered in the negative., Mr Dewan has sought to draw a distinction between a moratorium under Section 14 and an interim‑moratorium under Section 96, submitting that the latter operates on the debt and not on the debtor. Consequently, the issuance of an interim‑moratorium under Section 96 does not affect any right of the debtor. Moreover, it has been submitted that the insolvency resolution process under Part III can be instituted either by a creditor or a debtor and the Insolvency and Bankruptcy Code is meant to give equal protection whether it is the debtor or the creditor who has initiated the proceedings. It has been urged that, unlike Section 96, Section 101(2)(c) targets the debtor by restraining the alienation of the property at the post‑adjudication stage. The submission is that the role of the resolution professional is to act as a facilitator for compiling information under Part III, which is distinct from the role of the interim resolution professional in Part II, as defined in Section 5(27) read with Section 17 of the Insolvency and Bankruptcy Code. In contrast, in Part III, Section 97 provides for the appointment of the resolution professional with a limited role to collate information and submit a recommendation to the adjudicating authority., Senior counsel has relied on the report of the Bankruptcy Law Reforms Committee and the Board Regulations to support the submission that the role of the resolution professional is not that of an adjudicator and that, while collecting information, the resolution professional is entrusted with a duty to maintain confidentiality., The submission urged by Mr Dewan is that the provisions of Part III of Chapter III eventually lead to the creation of a repayment plan and, only if that fails, to a bankruptcy. The adjudicatory role of the interim resolution professional under Section 18 is distinguished from the role of the liquidator who discharges certain adjudicatory functions if an order of liquidation is passed in view of the provisions of Sections 40 and 42., Finally, it has been urged that an alleged ground of misuse of a provision in a particular case cannot be utilized to challenge the constitutional validity of a statute which Parliament is competent to enact., We have also heard Mr Amar Dave, counsel appearing on behalf of some of the respondents, who has urged that the actual process of judicial adjudication takes place at the stage of Section 100 before the adjudicating authority; the entire framework of the Insolvency and Bankruptcy Code is based on the observance of stringent timelines, and prolonging the process should not be countenanced, as adding an intermittent stage for the adjudicating authority to decide a jurisdictional question would result in the dislocation of the very scheme of the Insolvency and Bankruptcy Code; in view of the provisions of Section 96, once a moratorium has taken effect, it would not be open to the bank to take action in the meantime, hence the timelines set out in the statute must be looked at with a degree of strictness; there has been no challenge to the provisions of Section 94 of the Insolvency and Bankruptcy Code by any of the petitioners; and the legislature has provided in Section 95(4) with the details of the documents which are to be provided to the resolution professional, so the submission that the resolution professional is left to an uncharted discretion would be lacking in substance., IV. Analysis. While assessing the merits of the rival submissions, we propose to divide this judgment into three distinct parts. In the course of Part A, we propose to conduct a functional analysis comprising a comparison between the stages of Part II and Part III of the Insolvency and Bankruptcy Code; the role of the resolution professional in corporate as opposed to individual insolvency; the impact of a moratorium under Section 14 of Part II and an interim‑moratorium under Section 96 of Chapter III of Part III; and the role of the adjudicating authority in applications under Part II and Part III., Having carried out a functional analysis in the above terms, we propose in Part B of this judgment to analyse the applicability of the principles of natural justice. Finally, having put together the different strands of thought, we would deal in Part C with the constitutional validity of the statutory provisions of Sections 95 to 100 which are challenged in these proceedings., A. Comparative Analysis of Part II and Part III of the Insolvency and Bankruptcy Code. Part II of the Insolvency and Bankruptcy Code provides for insolvency resolution and liquidation for corporate persons. In terms of Section 6, a financial creditor, an operational creditor or the corporate debtor itself may initiate a Corporate Insolvency Resolution Process in respect of a corporate debtor who commits a default., Section 7 provides for the initiation of a Corporate Insolvency Resolution Process by a financial creditor either on its own or jointly with other financial creditors by filing an application before the adjudicating authority when a default has occurred. Section 8 provides that an operational creditor may, on the occurrence of a default, furnish a demand notice of the unpaid operational debt, demanding payment of the amount which is in default from the corporate debtor. In terms of Section 9, on the expiry of a stipulated period of ten days from the date of the demand notice, the operational creditor is empowered to file an application before the adjudicating authority for initiating a Corporate Insolvency Resolution Process if the debt has not been paid. Section 10, on the other hand, provides for the initiation of the Corporate Insolvency Resolution Process by the corporate applicant, as defined in Section 5(5)., As opposed to the provisions of Chapter II of Part II, Part III specifically deals with insolvency resolution and bankruptcy for individuals and partnership firms. Chapter II of Part III deals with the fresh start process, which is yet to be enforced. Chapter III of Part III provides for the insolvency resolution process. In Part III of the Insolvency and Bankruptcy Code, the Insolvency Resolution Process can be initiated by a debtor or a creditor acting as an individual entity or on behalf of other creditors. A debtor or a creditor is empowered to institute an application for the initiation of the Insolvency Resolution Process through a resolution professional as well., The fundamental aspect which needs to be noticed is that Part II of the Insolvency and Bankruptcy Code and Part III deal with distinct processes for the resolution of insolvencies. The former deals with resolution of insolvencies of corporate entities, whereas the latter deals with the resolution of insolvencies of individuals and partnership firms., The Role of the Resolution Professional in Corporate as opposed to Individual Insolvency. In the above backdrop, it is necessary to advert to the role ascribed to the resolution professional in Part II and Part III. While both Parts use the expression resolution professional, the provisions of Part II contain a material difference from those of Part III relating to the role and functions of a resolution professional. Section 5(27) provides that a resolution professional, for the purposes of Part II, means an insolvency professional appointed to conduct the Corporate Insolvency Resolution Process or the pre‑packaged insolvency resolution process, as the case may be, and to include an interim resolution professional., Part II of the Insolvency and Bankruptcy Code provides in Section 16 for the adjudicating authority to appoint an interim resolution professional on the insolvency commencement date. The insolvency commencement date is defined in Section 5(12) to mean the date of the admission of an application for initiating the Corporate Insolvency Resolution Process by the adjudicating authority under Sections 7, 9 or 10, as the case may be. Upon the admission of an application filed by the operational creditor or the debtor, the provision for the appointment of an interim resolution professional is triggered in terms of Section 16. Since Part II deals with the resolution of corporate insolvencies, the statute implicates the role of the adjudicating authority at the very threshold., Upon the appointment of the interim resolution professional, Section 17 postulates that the management of the affairs of the corporate debtor shall vest in the interim resolution professional; the powers of the Board of Directors or partners of the corporate debtor shall stand suspended and be exercised by the interim resolution professional; the officers and managers of the corporate debtor shall report to the interim resolution professional and provide access to all documents and records; and the financial institutions maintaining accounts of the corporate debtor shall act on the instructions of the interim resolution professional in relation to such accounts and furnish all information relating to the corporate debtor available with them to the interim resolution professional., The duties of the interim resolution professional are specified in Section 18. The interim resolution professional under Section 20 has a mandate to make every endeavour to protect and preserve the value of the property of the corporate debtor and manage the operations of the corporate debtor as a going concern., The other provisions of Part II indicate further steps to be taken by the interim resolution professional, including constituting a Committee of Creditors, monitoring the assets of the corporate debtor and managing its operations until a resolution professional is appointed by the Committee of Creditors, filing information collected with the information utility, and taking control and custody of any asset over which the corporate debtor has ownership rights as recorded in the balance sheet of the corporate debtor, or with the information utility, the depository of securities or any other registry that records the ownership of assets., Chapter III of Part II deals with a distinct eventuality, namely the initiation of liquidation where the resolution plan has not been received or has been rejected by the adjudicating authority for non‑compliance of the requirements specified for approval of the resolution plan in Section 31. These provisions elicit the vital role entrusted to the interim resolution professional initially and later to the resolution professional in cases involving corporate insolvencies. This role must be distinguished from the role ascribed to a resolution professional in Part III, who is appointed for the purpose of resolving insolvencies and bankruptcies for individuals and partnership firms. Sections 94 and 95 provide for applications by the debtor or the creditor for the initiation of the insolvency resolution process in relation to these entities. The appointment of a resolution professional takes place under Section 97. In Part II, the adjudicating authority is contemplated to have an adjudicatory role right at the threshold. In contrast, in Chapter III of Part III, the appointment of a resolution professional is contemplated by Section 97. Under sub‑section (5) of Section 97, the adjudicating authority has to appoint the resolution professional who is either recommended under sub‑section (2) or nominated by the Board under sub‑section (4)., The duties of a resolution professional in a process under Chapter II of Part III are contained in Section 99. The resolution professional is required, firstly, to examine the application within ten days of appointment. Secondly, they may require the debtor to prove that the repayment of the debt claimed to be unpaid by the creditor has taken place. The debtor may do so by evidencing an electronic transfer of the unpaid amount from a bank account of the debtor, by producing evidence of the encashment of a cheque issued by the debtor, or by a signed acknowledgement by the creditor of the receipt of the dues., We will deal with the impact of sub‑section (3) of Section 99 subsequently. Evidently, the provisions of sub‑section (3) operate on the resolution professional alone and cannot be construed to be a bar on the adjudicatory function of the adjudicating authority under Section 100. The resolution professional is empowered by sub‑section (4) of Section 99 to seek further information or an explanation in connection with the application from the debtor, creditor or any other person who, in the opinion of the resolution professional, may provide information. The information sought is in aid of the duty to examine the application and submit a report either recommending approval or rejection of the application., The resolution professional is required to examine the application and to ascertain two things: firstly, that the application satisfies the requirement of Section 94 or Section 95; and secondly, that the applicant has provided the information and furnished the explanation sought under sub‑section (4). Having carried out the process of examination and ascertainment as specified in sub‑section (6), the resolution professional may either recommend acceptance or rejection of the application by submitting a report. The report must record reasons and a copy of the report must be furnished to the debtor or the creditor, as the case may be. The role of the resolution professional prior to the adjudication process by the adjudicating authority concludes with the submission of the report. Upon submission of the report, the matter lies within the jurisdiction of the adjudicating authority, which, under Section 100(1), must pass an order either admitting or rejecting the application within fourteen days from the date of the submission of the report under Section 99., The salient aspect emerging from the above analysis is that the resolution professional does not possess an adjudicatory function under Section 99. In Chapter III of Part III, the legislature has dealt with the resolution of individual or partnership insolvencies and bankruptcies, and therefore interposed the resolution professional before the adjudicatory function of the adjudicating authority commences under Section 100. The resolution professional does not have the power that their counterpart has in Part II; no provision in Part III empowers the resolution professional to take over the assets or the business of the individual or partnership. The role under Section 99 is that of a facilitator to gather relevant information on the basis of the application submitted under Section 94 or Section 95 and, after carrying out the processes referred to in sub‑sections (2), (4) and (6) of Section 99, to submit a report recommending acceptance or rejection of the application. The statute uses the expressions examine the application, ascertain and satisfy the requirements, and recommend acceptance or rejection, leaving no doubt that the resolution professional is not intended to perform an adjudicatory function or to arrive at binding conclusions on facts. The role of the resolution professional is purely recommendatory and cannot bind the creditor, the debtor or the adjudicating authority., This distinction between the role of the resolution professional in a Corporate Insolvency Resolution Process under Part II and an Insolvency Resolution Process under Part III is of crucial importance. The legislature interposed the function of the resolution professional before the adjudicating authority under Section 100 because the application under Section 94 or Section 95 is principally against an individual or a partnership. Under Section 78, Part III applies to individuals or partnership firms where the amount of default is not less than one thousand rupees or any amount which the Central Government may specify, not exceeding one lakh rupees. The adjudicating authority would be inundated if all alleged defaults as low as one thousand rupees were judicially determined. Bearing in mind the nature and context of the insolvency resolution, the legislature provided an intermediate stage where the resolution professional collates and compiles the relevant materials and submits a report to the adjudicating authority recommending either acceptance or rejection of the application for initiating insolvency., The next aspect of the analysis requires us to dwell on the impact of the moratorium imposed under Section 96., Section 96, as its marginal note indicates, deals with an interim‑moratorium. The interim moratorium takes effect on the date of the application. Thus, the submission of an application under Section 94 or Section 95 triggers the interim moratorium, which ceases to have effect on the date of admission of the application under Section 100. The consequences of an interim moratorium are specified in clause (b) of sub‑section (1) of Section 96: a legal action or proceeding pending in respect of any debt is deemed to have been stayed and the creditor or debtor shall not initiate any legal action or proceeding in respect of any debt. The wording \in respect of any debt\ indicates that the interim moratorium operates primarily in respect of a debt rather than a debtor. The purpose of the interim moratorium is to restrain the initiation or continuation of legal action or proceedings against the debt., This must be distinguished from the moratorium provisions contained in Section 14 in relation to the Corporate Insolvency Resolution Process under Part II. Section 14(1)(a) provides that on the insolvency commencement date, the institution of suits or continuation of pending suits or proceedings against the corporate debtor, including proceedings in execution, shall stand prohibited by an order of the adjudicating authority. Clause (b) of sub‑section (1) empowers the adjudicating authority to declare a moratorium restraining the transfer, encumbrance, alienation or disposal by the corporate debtor of any of its assets or any legal right or beneficial interest therein. The moratorium under Section 14 operates on an order passed by an adjudicating authority, whereas the moratorium under Section 96 is protective and aims to insulate the debtor from legal actions in respect of the debt., The resolution professional submits a report to the adjudicating authority. The report is purely recommendatory and does not bind the adjudicating authority. Section 100(1) requires the adjudicating authority to pass an order either admitting or rejecting the application within fourteen days from the date of the submission of the report under Section 99. The adjudicating authority has the power to instruct the debtor and the creditor to enter into negotiation if it admits the application. It may also entitle the creditors to file for bankruptcy if it rejects the application on the ground that it was intended to defraud the creditors or the resolution professional. The provisions dealing with moratorium under Section 101(2)(c) correspond broadly to the provisions of Section 14(1)(b) in relation to Part II.
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Significantly, clause (c) of Section 101(2) which places a restraint on the transfer, alienation or disposal of assets does not find a place in Section 96(1)(b). It consequently operates only after the admission of an application under Section 60. This analysis would indicate that the adjudicatory function of the adjudicating authority commences, under Part III, after the submission of a recommendatory report by the resolution professional. Evidently, bearing in mind the clear differences between the corporate insolvency resolution process under Part II and the insolvency resolution process for individuals and partnerships under Part III, the legislature has carefully calibrated the role of the resolution professional, the imposition of the moratorium, and the stage at which the adjudicating authority steps in under Part II, on one hand, and Part III, on the other., This is based on an intelligible differentia between the nature of the insolvency resolution process in the case of a corporate debtor, on one hand, and individuals or partnerships, on the other., Having thus analysed the provisions of Part III of Chapter II, we shall now analyse the impact of the requirements of natural justice. It is a well settled principle of law that natural justice postulates two requirements: firstly, audi alteram partem i.e. an opportunity of being heard to a person who is liable to be affected by an investigation, enquiry, proceeding or action; and secondly, nemo judex in causa sua, which means that the person should not be a judge in their own cause., The principles of natural justice have also been expanded to require that a reasoned order be passed against an individual who is liable to be affected. Though, at one stage, in the evolution of law, a distinction was sought to be drawn between administrative action, on one hand, and judicial or quasi‑judicial action, on the other, as the law has progressed, that distinction has been substantially watered down, if not obliterated. In other words, the requirement to observe the principles of natural justice arises both in the context of purely judicial or quasi‑judicial action as well as administrative action which has an adverse impact on the individual or entity against which action is initiated., At the same time, it needs to be noted that the principles of natural justice are not to be construed in a straitjacket. The nature of natural justice is liable to vary with the exigencies of the situation. In a given situation, it may extend to a fully fledged evidentiary hearing while, on the other hand, the principles of natural justice may require that a bare minimum opportunity should be given to an individual who is liable to be affected by an action, to furnish an explanation to the allegations or the nature of the enquiry., In the provisions of Chapter III, particularly in Section 99, Parliament has provided for an engagement of the debtor with the resolution professional at various stages. Sub‑section (2) of Section 99 stipulates that where an application has been filed by the creditor under Section 95, the resolution professional may require the debtor to prove the repayment of the debt in the manner indicated in sub‑clauses (a), (b) and (c). Evidently, the expression may require the debtor to prove repayment of the debt implicates the role of the debtor in explaining whether, as a matter of fact, the debt remains unpaid or has been paid. The resolution professional cannot decide that issue in the absence of an opportunity to the debtor to furnish an explanation and to produce material evidencing the payment of the debt. Likewise, sub‑section (4) of Section 99 empowers the resolution professional, in the course of carrying out an examination of an application, to seek further information or explanation in connection with the application from the debtor or the creditor. The expression in connection with the application indicates that Parliament has not contemplated a roving enquiry by the resolution professional but an enquiry for the purpose of making the ultimate recommendation in the report on the nature of the application itself. After carrying out the process evidenced in sub‑sections (2) and (4), the resolution professional is then required to make an ascertainment in terms of sub‑section (6). It is thereafter that the resolution professional would submit a report either recommending the acceptance or rejection of the application together with the reasons in support of the report., The provisions of Section 99 thus leave no manner of doubt that the process which takes place before the resolution professional is not an ex parte process in the absence of a debtor against whom the insolvency resolution process is sought to be initiated. Though the ultimate report of the resolution professional has only a recommendatory value, the legislature has ensured that the recommendation is made after taking into account the information or, as the case may be, the explanation that is furnished by the debtor. Thus, it cannot be said that there is any element of bias in a report submitted by a resolution professional who is nominated by the creditor. In the decision in Ravi Ajit Kulkarni v. State Bank of India, it has been emphasized that under Section 98 of the Insolvency and Bankruptcy Code, the debtor retains the option to replace the resolution professional appointed under Section 97 by filing an appropriate application with the adjudicating authority., The submission urged on behalf of the petitioners is that Section 97(5) contemplates a role for the adjudicating authority in the appointment of a resolution professional anterior to the stage contemplated during the course of adjudication under Section 100. It has been urged that when the adjudicating authority appoints a resolution professional under Section 97(5), the adjudicating authority should be required to decide the jurisdictional questions on the basis of which the provisions of Part III are implicated. In other words, it is urged that, at that stage, it would be necessary for the adjudicating authority to apply its mind as to whether a debt subsists and whether the relationship of creditor and debtor subsists. This is similar to the UNCITRAL Guide which emphasises the need for the insolvency court to evaluate commencement criteria before admitting insolvency proceedings, ensuring a fair hearing for the parties involved., Reliance has been placed on the decision in Ujjam Bai v. State of Uttar Pradesh to support the submission that unless such an exercise is carried out, the debtor would be exposed to a wide‑ranging enquiry by the resolution professional under Section 99 accompanied by a duty to furnish information or an explanation as required by the resolution professional. We are not inclined to accept this assertion. The principles articulated in Swiss Ribbons Private Limited v. Union of India elucidate that the resolution professional’s functions are administrative, not adjudicatory. Essar Steel India Limited v. Satish Kumar Gupta underscores the non‑adjudicatory nature of the resolution professional’s role. Further support for the administrative role of the resolution professional is drawn from the Bankruptcy Law Reforms Committee’s drafting instructions, affirming that the resolution professional’s role is primarily administrative for information and documentation collation and verification of the creditor’s claim under Section 95 of the Insolvency and Bankruptcy Code., We would also like to deal with the submission that the resolution professional is empowered to direct the personal guarantor and others to disclose sensitive personal information without a prior hearing. This demand for information, lacking an opportunity for the personal guarantor to be heard, raises concerns about violating the right to privacy. We are of the considered view that the resolution professional, operating under the regulatory oversight of the Insolvency and Bankruptcy Board of India, plays a vital role in the effective functioning of the insolvency process and contributes significantly to its efficiency. Firstly, the resolution professional is only entitled to seek information which is strictly relevant to the examination of the application for Insolvency Resolution Process; and secondly, Regulation 7(2)(h) of the Insolvency and Bankruptcy Board of India (Insolvency Professionals) Regulations, 2016 read with paragraph 21 of the First Schedule, casts an obligation on the resolution professional to ensure confidentiality of all information relating to the insolvency process. The Bankruptcy Law Reforms Committee also acknowledges the information imbalance between debtors and creditors, necessitating the resolution professional’s investigative role in individual insolvency. Therefore, Section 99 empowers the resolution professional to seek information., In K.S. Puttaswamy (9‑Judge Bench) v. Union of India, the Supreme Court of India laid down the threshold requirements to balance privacy with legitimate state interest emanating from the procedural and content‑based mandate of Article 21, as follows: (a) legality, i.e. there must be a law in existence; (b) the pursuit of a legitimate aim; and (c) proportionality of the legitimate aims with the object sought to be achieved. The right to privacy is subject to reasonable restraints. In the context of Section 99(4), the legitimate aims of establishing a comprehensive framework for individual insolvency and aiding the adjudicating authority justify seeking personal financial information, balancing privacy rights with the objective., We are of the view that the submission that an adjudicatory role should be interposed at the stage of Section 97(5) cannot be accepted. The power which is conferred on the adjudicating authority at the stage of filing of an application is to appoint a resolution professional. The appointment of a resolution professional is for the purpose of a facilitative exercise which is contemplated by Section 99 and eventually ends in a report either recommending the acceptance or rejection of the application. Bearing in mind the statutory scheme, it would be impermissible for the Supreme Court of India to allow for the adjudicatory intervention of the adjudicating authority in adjudicating what is described as a jurisdictional question at the stage of Section 97(5)., Section 100(1) stipulates that the adjudicating authority must issue an order within fourteen days of receiving the report, either admitting or rejecting the application filed under Sections 94 or 95, depending on the circumstances. Importantly, the adjudicating authority does not mechanically accept or reject applications based solely on the resolution professional’s report. Instead, it must actively engage in a fair process, affording the debtor a fair opportunity to present their case. The adjudicating authority arrives at its determination by considering arguments supported by relevant material particulars. In essence, the adjudicating authority conducts an independent assessment, not solely relying on the resolution professional’s report, to decide the fate of applications under Section 94 or 95 of the Insolvency and Bankruptcy Code., The true adjudicatory function of the authority commences under Section 100 after the submission of the report. Another reason why we are not inclined to accept the submission is that what is described as a jurisdictional question by the petitioners may not be a simple matter to be decided as a question of law. The jurisdictional questions of the nature suggested by the petitioners, namely, whether there is a subsisting debt or whether the relationship of debtor and creditor subsists, would involve a decision on mixed questions of law and fact. The entire scheme of Sections 99 and 100 implicates timelines laid down by Parliament. The entire process of implementing these timelines would be rendered nugatory if an adjudicatory role were to be read into the provisions of Section 97(5). The final reason which would militate against accepting the submission is that the provisions of Section 99 do not as such implicate any adverse civil consequences particularly if those provisions are read in the manner in which we now propose to elucidate., The right of representation has been provided under Section 99(2). On behalf of the petitioners, it has been submitted that the resolution professional has been empowered to make wide‑ranging enquiries for the purpose of eliciting information under sub‑section (4) of Section 99. In our view, it is necessary to clarify the ambit of sub‑section (4) of Section 99. Sub‑section (4) is prefaced by the words ‘for the purposes of examining an application’. In other words, the information which the resolution professional is empowered to seek or the explanation which the resolution professional can require to be furnished is for that purpose. Moreover, sub‑section (4) specifies that the information or explanation may be sought in connection with the application. Therefore, properly read, the power to seek information or, for that matter, to seek an explanation is related to the nature of the application which has been submitted under Section 94 or Section 95. We are of the view that the right to file such representation is sufficient compliance of audi alteram partem requirements., Hence, the petitioners’ assertion that the statutory framework, as interpreted and applied by the adjudicating authority, results in a violation of natural justice lacks merit. The reliance on State Bank of India v. Rajesh Agarwal does not help the case of the petitioners, as the court in that case established that exceptions to natural justice must be confined to the narrowest possible limits. The court underscored that the waiver of prior hearing is permissible only in situations where its inclusion would obstruct the entire process. In that case, the court specifically addressed the duties of banking authorities, emphasizing the obligation to adopt fair procedures and afford borrowers a hearing before classifying their accounts as fraud accounts, given the serious penal and civil consequences. The court further held that reasoned orders must be passed when categorizing an account as a fraud account. It then clarified that no hearing is required before lodging an FIR. In other words, it held that the principles of audi alteram partem must be read into the circular issued by the Reserve Bank of India on the classification of bank accounts as fraud accounts. However, a crucial distinction is made here, signifying that the circumstances of this case are distinct from those considered in Rajesh Agarwal. The classification of the borrower’s account as fraud without giving any opportunity of being heard entailed significant material consequences, including the disability on accessing institutional finance. That may be contra‑distinguished with the procedure under Section 95 to Section 99. In this, a person is not deemed a debtor but a resolution professional is appointed to ascertain whether the facts substantiate the application for an Insolvency Resolution Process. An interim moratorium is placed on legal proceedings concerning the debt to safeguard the debtor from further legal action. However, the interim moratorium does not act to freeze the assets and legal rights and title of the debtor. Once a recommendation is made, it is not binding on the adjudicating authority. The authority would only decide after looking at the recommendation of the resolution professional and affording full opportunity of hearing to the debtor or the personal guarantor, as the case may be. Consequently, the petitioners’ argument lacks merit when assessed against these established legal principles., Rules have been framed in 2019 in pursuance of the provisions of Section 239(2). The Rules, inter alia, provide for Form A in which an application under Section 94 has to be submitted; Form B in which a demand notice has to be served under Section 95(4) on the guarantor demanding payments; and Form C in which an application has to be submitted under Section 95(1). Form A is the statutory form in which an application is submitted by the debtor. Form C, on the other hand, is the statutory form in which an application is submitted by a creditor. Form C is required to be filled in by the creditor who institutes an application for the initiation of the insolvency resolution process. This includes particulars of the applicant, particulars of the guarantor, particulars of the debt and particulars of the insolvency professional. The creditor who fills up Form C would have to furnish such information as lies within the knowledge of the creditor who is the applicant under Section 95(4). When the resolution professional is empowered to seek information or an explanation in connection with the application, such information or explanation must be relevant to and bearing a connection with the nature of the application itself., Even when the resolution professional seeks information from a third party, the information cannot be of a roving nature, but must be relatable to the application which has been filed under Section 94(1) or, as the case may be, Section 95. Sub‑section (3) of Section 99 provides that where a debt for which an application has been filed by the creditor is registered with an information utility, the debtor shall not be entitled to dispute the validity of the debt. This provision in sub‑section (3) operates only in relation to the recommendatory function of the resolution professional. That provision cannot operate to bind the adjudicatory function of the adjudicating authority when it exercises its jurisdiction under Section 100., In view of the above analysis, it now becomes necessary to analyse whether there is any substance in the challenge to the constitutional validity of the provisions of Sections 95 to 100. We have already indicated that the function of the resolution professional under Section 99 is purely facilitative. The task before the resolution professional is not to adjudicate but to collate and collect information on the application under Section 94 or Section 95 before submitting a report to the adjudicating authority. When interpreting Part II of the Insolvency and Bankruptcy Code, the courts have inferred the necessity of granting an opportunity to a debtor before initiating the insolvency resolution process against them. This includes the provision of a copy of the application and all relevant documents. Although Section 100 of the Insolvency and Bankruptcy Code does not explicitly mention a hearing for a debtor, the requirement of a hearing has to be read into Section 100. In legal interpretation, when a statute is silent on a specific aspect, like a hearing, and there is no explicit prohibition, the courts may imply or read in such a requirement., The legislature has evidently made provisions in Section 99, as we have construed earlier, to allow for the engagement of the debtor with the resolution professional before a report is submitted to the adjudicating authority. The process under Section 100 before the adjudicating authority must be compliant with the principles of natural justice. The adjudicating authority is duty bound to hear the person against whom an application has been filed under Section 94 or Section 95 before it comes to the conclusion as to whether the application should be admitted or rejected. The duty of the adjudicating authority to furnish a hearing attaches to its role and function as an authority which is entrusted to decide questions of law and fact and to arrive at a conclusion on either to admit or reject the application filed by the debtor or the creditor under Chapter III of Part III., The resolution professional in exercise of their duty under Section 99 may not embark on a roving enquiry into the affairs of the debtor or personal guarantor, as the case may be. The information sought by the resolution professional from the debtor, the creditor, or third parties must be relevant to the examination of the application of Insolvency Resolution Process. In this process, the debtor would inevitably be furnished with a fair opportunity by the resolution professional. Further, the aim of vesting such powers in the resolution professional combined with his duty to keep such information confidential meets the proportionality test which this court has devised for privacy under Article 21 of the Constitution. The nature of the resolution professional’s role, the powers, and its nexus with the legitimate aim of the legislation also lead us to the conclusion that the impugned provisions are compliant with Article 14 of the Constitution. Therefore, we hold that Sections 95 to 100 of the Insolvency and Bankruptcy Code are not unconstitutional., For the reasons which we have already indicated, we have come to the conclusion that an adjudicatory decision‑making process of the nature suggested by the petitioners would not be implicated under Section 97(5). To accept the submission of the petitioners would render the provisions of Sections 99 and 100 otiose., Before concluding, it would be necessary to deal with two incidental submissions which were heard during the course of the hearing. It is submitted that sub‑section (2) of Section 95 indicates that an application under sub‑section (1) can be initiated only in respect of a partnership debt which is owed to the creditor. We are of the view that this is not a correct reading of Section 95. Sub‑section (1) indicates that a creditor may apply either by themselves or jointly with other creditors or through a resolution professional to the adjudicating authority for initiating an Insolvency Resolution Process. Sub‑section (2) provides that in a situation where a creditor has applied under sub‑section (1) in relation to a partnership debt, the application may be filed against any one or more partners of the firm or the firm. The provisions of sub‑section (2), in other words, cannot control the ambit of sub‑section (1) of Section 95., The second incidental submission is that the provisions of Sections 95 to 100 are retroactive in nature since they would operate in respect of guarantees which may have been executed before the statutory provisions were brought into force. It is a well settled principle that a law is not retrospective in nature merely because some parts of the cause of action on which the law operates have arisen in the past. Prior to the commencement of the Insolvency and Bankruptcy Code, the field was governed by the Presidency Towns Insolvency Act 1909 and the Provincial Insolvency Act 1920. With the enactment of the Insolvency and Bankruptcy Code, the insolvency resolution process in relation to individuals and partnership firms is governed by Part III of the Insolvency and Bankruptcy Code. The Insolvency and Bankruptcy Code cannot be held as operating in a retroactive manner so as to violate Article 14 of the Constitution., For the above reasons, we have come to the conclusion that the impugned provisions of the Insolvency and Bankruptcy Code do not suffer from any manifest arbitrariness so as to offend Article 14 of the Constitution. This is subject to the clarification on the interpretation of Section 99 in the text of this judgment., We summarise the conclusion of this judgment below: (i) No judicial adjudication is involved at the stages envisaged in Sections 95 to 99 of the Insolvency and Bankruptcy Code; (ii) The resolution professional appointed under Section 97 serves a facilitative role of collating all the facts relevant to the examination of the application for the commencement of the insolvency resolution process which has been preferred under Section 94 or Section 95. The report to be submitted to the adjudicatory authority is recommendatory in nature on whether to accept or reject the application; (iii) The submission that a hearing should be conducted by the adjudicating authority for the purpose of determining jurisdictional facts at the stage when it appoints a resolution professional under Section 97(5) of the Insolvency and Bankruptcy Code is rejected. No such adjudicatory function is contemplated at that stage. To read in such a requirement at that stage would be to rewrite the statute which is impermissible in the exercise of judicial review; (iv) The resolution professional may exercise the powers vested under Section 99(4) of the Insolvency and Bankruptcy Code for the purpose of examining the application for insolvency resolution and to seek information on matters relevant to the application in order to facilitate the submission of the report recommending the acceptance or rejection of the application; (v) There is no violation of natural justice under Sections 95 to 100 of the Insolvency and Bankruptcy Code as the debtor is not deprived of an opportunity to participate in the process of the examination of the application by the resolution professional; (vi) No judicial determination takes place until the adjudicating authority decides under Section 100 whether to accept or reject the application. The report of the resolution professional is only recommendatory in nature and hence does not bind the adjudicating authority when it exercises its jurisdiction under Section 100; (vii) The adjudicating authority must observe the principles of natural justice when it exercises jurisdiction under Section 100 for the purpose of determining whether to accept or reject the application; (viii) The purpose of the interim moratorium under Section 96 is to protect the debtor from further legal proceedings; and (ix) The provisions of Sections 95 to 100 of the Insolvency and Bankruptcy Code are not unconstitutional as they do not violate Article 14 and Article 21 of the Constitution., The writ petitions are accordingly dismissed., Applications for substitution of the name of the Bank/Company are allowed., Pending applications, including the applications for intervention, stand disposed of.
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Contempt Petition No. 181 of 2021 Dravida Munnetra Kazhagam, represented by its Press Relations Secretary TKS Elangovan, residing at C5, Lloyds Colony, Royapettah, Chennai 600014, having office at 367 & 369, Anna Arivalayam, Anna Salai, Teynampet, Chennai 600018. Petitioners: 1. Mr. Rajesh Bhushan, Secretary, Ministry of Health and Family Welfare, Nirmal Bhavan, Near Udyog Bhawan Metro Station, Maulana Azad Road, New Delhi 110011. 2. Mr. R. Subrahmanyam, Secretary to Government, Ministry of Human Resource Development (now Ministry of Education), No.1, West Block, Rama Krishna Puram, New Delhi 110066. 3. Secretary, National Medical Commission (formerly Medical Council of India), Pocket 14, Sector 8, Dwarka Phase I, New Delhi 110077. 4. Prof. (Dr.) Sunil Kumar, Director General of Health Services, Room No. 446-A, Nirmal Bhavan, New Delhi 110001. 5. Dr. Abhijat Sheth, Chairman, National Board of Examination, Ansari Nagar, Mahatma Gandhi Marg, New Delhi. 6. Dr. J. Radhakrishnan, I.A.S., Secretary to Government, Department of Health & Family Welfare, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai 600009. 7. Dr. Sabyasachi Saha, Secretary, Dental Council of India, Aiwan‑E‑Gali Marg, Kotla Road, Temple Lane, Opposite Mata Sundari College for Women, New Delhi 110002. 8. Medical Counselling Committee, Nirmal Bhavan, New Udyog Bhawan Metro Station, Maulana Azad Road, New Delhi 110011. 9. Chief Secretary to Government, Government of Tamil Nadu, Secretariat, Fort St. George, Chennai 600009., Prayer: The petition is filed under Section 11 of the Contempt of Courts Act, 1971 to punish the respondents for wilful disobedience of the order passed by the Supreme Court of India dated 27 July 2020 in Writ Petition No. 8326 of 2020. For the petitioner: Mr. P. Wilson, Senior Advocate, for M/s. P. Wilson Associates. For the respondents: Mr. K. M. Nataraj, Additional Solicitor‑General of India, assisted by Mr. V. Chandrasekaran, Senior Panel Counsel for respondents 1, 2, 4 and 8; Mr. P. Muthukumar, Counsel for the State for respondents 6 and 9; Ms. Shubharanjini Ananth, Standing Counsel for the third respondent; service awaited for respondents 5 and 7., One of the petitioners in a batch of writ petitions decided on 27 July 2020 complains of deliberate and wilful violation of the relevant order. Several senior Union and State officials have been arraigned as contemners for their perceived failure to act in accordance with the order dated 27 July 2020 (hereinafter referred to as the said order)., The petitioner is a political party that has returned to power in this State following the Assembly elections conducted a few months back. Most major political parties in the State had filed the other petitions in the batch that were decided by the said order, and the State Government supported the writ petitions by filing an affidavit., The prayers in the petitions decided by the said order sought implementation of reservation for Other Backward Classes (OBC) in the All India Quota (AIQ) of the seats surrendered by the State for admission to undergraduate, postgraduate and diploma medical and dental courses in the State. The prayers required such reservation to be implemented in the State with effect from the academic year 2020‑21., The decision of the Supreme Court of India is reflected in paragraphs 103 to 106 of the said order. Both the petitioner and the Union have referred to the order to persuade the court that the ultimate order was in favour of their respective contentions. The petitioner insists that its prayer was granted and that the reservation policy in vogue in the State would apply to the AIQ seats. The Union asserts that the prayer to apply the Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of Appointments or Posts in the Services under the State) Act, 1993 to AIQ seats was expressly declined, and that the methodology for adopting a policy for reservation in AIQ seats was left to a committee to be constituted by the order., Paragraph 103 of the order indicates that a policy relating to extending the benefit of reservations with respect to qualifying marks and admissions has to be reviewed jointly by the Central Government and the Medical Council of India. It further states that once the constitutional mandate enabling the State to frame a law has been crystallised by the State Government, its applicability to the AIQ, to the extent permissible, cannot be ignored. The court cautioned that a balance must be struck to avoid undesirable disbalance of representation of candidates qualifying on merit in the NEET examinations. The court observed that merit would not be compromised if reservation is introduced for OBC candidates in the AIQ who have qualified in NEET, but that a joint deliberation is required., Paragraph 104 directs that the entire constitutional obligation to decide by the Central Government is a necessity when it involves the future career of candidates aspiring to receive their share of educational opportunity. The respondents are not asked to decide on a manifesto but to provide a solemn affidavit before the Supreme Court, preceded by a similar affidavit before the Apex Court in the case of Dr. Saloni Kumari v. Director General, Health Services, involving the rights of OBC candidates who have qualified through an entrance examination. The implementation of OBC reservation in AIQ seats is warranted due to indecisiveness in taking a positive step. The directions are not a policy declaration nor a mandamus; the proposal is already professed by the fourth respondent in his affidavit and is legally supportable by a State law., Paragraph 105 states that the matter should be resolved between the State Government and the Central Government with participation of the Medical Council of India and the Dental Council of India. It is appropriate to refer the issue to a Committee to provide terms of implementation of such reservation, which can be applied to courses to be run in future and not in the present academic year, to avoid disturbing selections already set in motion. The Union of India, through the Director General of Health Services, Ministry of Health and Family Welfare, is directed to convene a meeting with the Health Secretary, Government of Tamil Nadu, and the Secretaries of the Medical Council of India and the Dental Council of India to finalise the manner in which OBC reservation is to be provided for AIQ seats in UG/PG courses with effect from the next academic year., Paragraph 106 provides that any party seeking clarification from the Apex Court may approach it, but the directions given herein shall be complied with. The decision on the percentage of reservation may be announced by the Central Government preferably within three months., The petitioner argues that whether or not certain seats in government medical colleges or government‑aided medical colleges have been surrendered by the State to be included as AIQ seats, the relevant institutions would be governed by the 1993 Act. The petitioner relies on paragraph 103, which states that when a particular law is brought by the State Government, its applicability to AIQ seats cannot be ignored, and paragraph 104, which states that the proposal is already in place and legally supportable by a State law., The petitioner places emphasis on a letter dated 18 December 2019 written by the then Union Health Minister to a Member of Parliament belonging to the petitioner party, which refers to each State having its own reservation policy for admission to undergraduate and postgraduate medical courses. The third paragraph of the letter is said to have been construed by this Court to imply that the reservation policy of a State would also apply to AIQ seats. Paragraph 75 of the order noted the Union's submission that States have no role to enforce reservation on AIQ seats unless they are reverted back, and found this submission contrary to the Union Health Minister's letter. The Court also found the Union's oral submission at variance with paragraph 11 of an affidavit filed on its behalf, which indicated that the Central Government proposed to apply State‑specific reservation for OBC on all available AIQ UG/PG seats, subject to the overall reservation not exceeding 50 % and without disturbing existing SC, ST and unreserved seats., The petitioner points to paragraphs 85 to 97 of the order where the Court dealt with a notification of 21 December 2010 issued by the Medical Council of India and the Regulations framed thereunder. Regulation 5(5) of the Medical Council of India Regulations on Graduate Medical Education, 1997 indicates that reservation of seats for respective categories shall be as per applicable laws prevailing in the States/Union Territories. The Court observed that the provision did not expressly refer to AIQ seats but did not specifically exclude them either. The Court posed the question whether the regulations intend to apply reservation only to State‑sponsored seats and not to State‑surrendered AIQ seats, which was not expressly answered in the order., The petitioner submitted that it filed a petition to the Supreme Court for special leave to appeal against the substance of the order, primarily to ensure implementation of OBC reservation in the academic year 2020‑21. The petitioner refers to an application for interim relief filed in the resultant civil appeal and cites the interim order dated 26 October 2020 passed by the Supreme Court in Civil Appeals Nos. 3518 and 3519 of 2020 arising out of SLP (C) Nos. 9286 and 9592 of 2020 (State of Tamil Nadu v. Union of India). The Supreme Court observed that there is no legal or constitutional impediment to extending reservation to OBC candidates in State‑surrendered AIQ seats of undergraduate and postgraduate medical courses in Tamil Nadu, but that the High Court opined that implementation should be after joint deliberation between the Central Government, Medical Council of India and the State Government., The second paragraph of the Supreme Court order confined the discussion to the benefit of reservation to OBC candidates in AIQ for admission in Government‑run medical colleges in Tamil Nadu for the academic year 2020‑21. The petitioner relies on a sentence from paragraph 8 of the Supreme Court order stating that the High Court accepted the submissions that the 1993 Act can be made applicable to AIQ seats, and that a direction was given to the Union of India to constitute a committee to work out the modalities of implementation. The order noted that there is no domicile or residence reservation for AIQ seats and that all OBC candidates shall be eligible for OBC seats in AIQ in Tamil Nadu if reservation is implemented., The request for interim relief prayed for by the petitioner was rejected with the observation that, since the selection process for the relevant academic year had commenced, it could not be disturbed. However, the appeals remain pending and the order of this Court dated 27 July 2020 has not attained finality, though there is no impediment to its implementation in the academic year 2021‑22., The petitioner refers to several provisions of the 1993 Act, which reserves 69 % of seats in relevant educational institutions in the State as follows: 30 % for Backward Classes, 20 % for Most Backward Classes and Denotified Communities, 18 % for Scheduled Castes, and 1 % for Scheduled Tribes. The petitioner asserts that the statute binds all educational institutions, whether State‑sponsored or part of the AIQ, and that the Act, having received Presidential assent and placed in the Ninth Schedule, is immune to ordinary judicial review., The petitioner states that despite the order requiring an appropriate manner of reservation to be applied at the admission stage for the current year, no steps have been taken by the Union or the National Medical Commission to implement the full extent of reservation this year. The petitioner refers to the Supreme Court order of 26 October 2020, which required modalities for implementation of OBC reservation in AIQ seats to be applicable from the academic year 2021‑22. The petitioner relies on the order dated 19 July 2021 passed by this Court, which urged the alleged contemners to take steps, but complains that the Union's announced decision goes against the order and the Supreme Court observation., In the order dated 19 July 2021, this Court observed that the Union's attempt not to implement OBC reservation in AIQ seats for the academic year 2021‑22 appears contumacious, in derogation of the order dated 27 July 2020 and contrary to the representation made before the Supreme Court on 26 October 2020. The respondents were given a week to indicate their considered stand on the mode and manner of implementation of OBC reservation in AIQ seats for the academic year 2021‑22. The order also observed that admission into the relevant colleges in the State can now only proceed upon implementing such reservation quota., The petitioner refers to the notification issued by the Medical Counselling Committee of the Government of India, Directorate General of Health Services, Ministry of Health and Family Welfare, on 29 July 2021. The petitioner contends that the figures in the notification are unacceptable as they differ from the reservation percentages under the 1993 Act. According to the notification, the 15 % undergraduate and 50 % postgraduate seats in government and government‑aided medical colleges earmarked as AIQ seats would carry reservation as follows: Scheduled Castes 15 %, Scheduled Tribes 7.5 %, OBC (Non‑Creamy Layer) as per the Central OBC List 27 %, Economically Weaker Sections 10 % (as per Central Government norms), and Persons with Disabilities 5 % horizontal reservation, totaling 59.5 % (including 5 % horizontal reservation for PwD)., The petitioner submits that the notification, issued during the pendency of the present proceedings, militates against the order dated 27 July 2020 as interpreted by the Supreme Court. The petitioner argues that reservation in medical institutions in the State must be in accordance with the 1993 Act and no other breakdown may be applied., Although both the Union and the State are represented because their officials have been hauled up for perceived contempt, their stands are distinct. The State says its officials could only assist in constituting the committee as per the order and respond to its recommendations. The Union, on the other hand, says that after the notification of 29 July 2021 was published, nothing survives of the contempt proceedings., The Union refers to the recommendations of the committee constituted under the order. In its report submitted on 21 October 2020 to the Secretary, Ministry of Health and Family Welfare, the committee noted that 1,000 out of 2,070 postgraduate seats were available to the AIQ in the State together with 554 undergraduate seats. While analysing the issues, the committee referred to the AIQ scheme consisting of 15 % undergraduate seats (totaling 6,060 across the country) and 50 % postgraduate seats (totaling 9,515). The committee observed that the AIQ scheme is devised and continuously monitored by the Supreme Court of India since 1984 and that allotment for admission to such seats is done by the Medical Counselling Committee of the Directorate General of Health Services, Ministry of Health & Family Welfare, Government of India., Paragraph 4.2 of the report records that the AIQ scheme was initiated through the Supreme Court judgment in Dr. Pradeep Jain, followed by the judgment in Dinesh Kumar, and on the basis of the judgment of Abhay Nath provided reservation to SC and ST candidates (15 % and 7 % respectively) for AIQ seats in all Government institutions from 2007. The report notes that State‑specific reservations for SC and ST have not been applied in the AIQ scheme due to wide variations among States. It provides a table showing reservation percentages for SC and ST in various States, e.g., Madhya Pradesh 16 % SC and 20 % ST; Gujarat 7 % SC and 15 % ST; Kerala 8 % SC and 2 % ST; West Bengal 22 % SC and 6 % ST., The report indicates that since 2009, Other Backward Classes (excluding the creamy layer) have been given 27 % reservation in Central educational institutions and Central universities on the basis of the Central Educational Institutions (Reservation in Admission) Act, 2006. The report then refers to Writ Petition No. 596 of 2015 pending before the Supreme Court (Saloni Kumari) where the demand for 27 % OBC reservation in the AIQ scheme was made., The committee suggested two options for implementation. Option 1: State‑specific reservation. If State‑specific reservation is to be implemented for OBCs in AIQ seats contributed by Tamil Nadu as per the Tamil Nadu Backward Classes, SC & ST (Reservation of Seats in Educational Institutions and of Appointments to Posts in the Services under the State) Act, 1993, then 277 undergraduate seats and 500 postgraduate seats would have to be earmarked for the OBC category. This demand is summarised in Table 13., The key concerns with this option are that it would affect the overall reservation ceiling and require coordination among the Central Government, the Medical Council of India and the Dental Council of India.
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The State of Tamil Nadu is likely to deviate from the accepted proportion of reservation provided to Scheduled Caste and Scheduled Tribe categories from the currently applicable 15 per cent for Scheduled Castes and 7 per cent for Scheduled Tribes and substitute it with 18 per cent and 1 per cent, respectively, which will necessitate seeking permission and directions from the Supreme Court of India by filing an interim application. If similar State‑specific reservations are to be replicated in other States, then deviation in quantum of reservations for Scheduled Caste and Scheduled Tribe categories is bound to occur in other States as has already been depicted in Table 12 above. Although the Tamil Nadu Government has contended that its State Act being in Schedule IX of our Constitution is deemed out of judicial review, it needs to be verified if exceeding the ceiling of 50 per cent in overall reservations, as mandated through the judgment of the Apex Court in the Indira Sawhney case, is legally feasible. The Central Government would also have to deviate from its uniform policy of providing 27 per cent reservation to Other Backward Classes and, in the instance of Tamil Nadu, would have to enhance it to 50 per cent. The State Government would have to surrender the seats to the Medical Counselling Committee of Directorate General of Health Services/Ministry of Health and Family Welfare with roster points duly certified by competent authority., Another key issue the Committee noted is whether the All India Quota is to be treated as per the Central Education Institutions (Reservations in Admissions) Act 2006 or as per the State‑specific Acts and Rules. Since this matter is a Centre‑State issue, consultation with the Law Ministry on this particular point shall be required. Option 2: Extension of Other Backward Classes reservation as per the provisions of the Central Education Institutions (Reservations in Admissions) Act 2006 for All India Quota seats in Tamil Nadu. If seats under the All India Quota scheme are considered to be under the Central Government for the purpose of distribution without domiciliary considerations, then application of 27 per cent reservation as per the Central Education Institutions (Reservations in Admissions) Act 2006, uniformly across states, disregarding State‑specific Acts and Rules, as is done with Scheduled Caste and Scheduled Tribe reservations, seems plausible and implementable., The additional 27 per cent Other Backward Classes seats thus created through Option 2 will be incorporated into the running roster currently maintained by the Medical Counselling Committee of the Directorate General of Health Services. It is to be noted that the second option being proposed by this Committee is actually the prayer in the petition of Saloni Kumari pending before the Supreme Court of India, which is being heard by the Parliamentary Standing Committee and also the National Commission for Backward Classes., If opting for Option 2 will require time for enactment of relevant laws and framing of rules and regulations, then as an interim measure Option 1 can be considered only for Tamil Nadu, keeping in view the issues stated in the preceding paragraph., The Union submits that once a State has surrendered a certain number of seats to the All‑India pool, there can be no question of the reservation rules applicable in the State being applied to the seats that the State surrendered to the All India Quota. The Union asserts that the mix of population and the incidence of socially backward sections would differ from State to State and neither the ratio nor the mix of Scheduled Castes, Scheduled Tribes or Other Backward Classes can be exactly the same even in two contiguous States., The Union refers to the Act of 1993 and the definition of Backward Classes of citizens appearing therein. The Union points out that the definition in Section 3(a) of the Act of 1993 pertaining to Backward Classes of citizens includes the most backward classes and denotified communities and, for a person to obtain the benefit under the statute, he should belong to a backward class as notified in the Tamil Nadu Government Gazette. The Union refers to Section 4(2) of the Act of 1993 which provides 30 per cent reservation for Backward Classes and 20 per cent reservation for most backward classes and denotified communities and says that in several other States, there is no reservation in respect of the persons included as backward classes in this State. Similarly, the Union refers to the high percentage of reservation in this State for Scheduled Castes to the extent of 18 per cent and the extremely low percentage of reservation for Scheduled Tribes to the extent of one percent, indicating a much larger Scheduled Caste population in this State and a much smaller Scheduled Tribe population therein., The Union exhorts that applying the State's reservation quota to All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State would be anathema to the concept of the State surrendering seats to the All India Quota scheme, and would render the entire All India Quota scheme meaningless., The Union places much of the same paragraphs from the said order, as relied upon by the petitioner, to suggest that nothing therein, expressly or by necessary implication, requires reservation as per the Act of 1993 to be applied to the All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State., The Union says that the reservation for socially and educationally backward classes of citizens cannot exceed 50 per cent as per the Supreme Court dictum in the judgment reported at 1992 Supp (3) SCC 217 (Indra Sawhney v. Union of India) rendered by a nine‑member Bench. In the same breath, the Union seeks to justify the additional 10 per cent reservation for the Economically Weaker Sections on the ground that clause (6) was inserted in Article 15 of the Constitution by the Constitution (One Hundred and First Amendment) Act, 2019, which provides as follows: '15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. (6) Nothing in this article or sub‑clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making, (a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and (b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent of the total seats in each category.' Explanation: For the purposes of this article and article 16, 'economically weaker sections' shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage., The Union submits that though several challenges have been made to such amendment and the entirety of the Amending Act itself, the matter is pending before a Constitution Bench after a batch of matters led by Writ Petition No. 55 of 2019 filed before the Supreme Court of India was referred to a Constitution Bench by an order dated 5 August 2020., The Union suggests that all that was required to be done in terms of the said order has been done. The order required a committee to make suggestions and for Other Backward Classes reservation to be introduced at the National Eligibility cum Entrance Test 2021‑2022. The Union says that the committee was set up, duly deliberated upon the matter and submitted its report; thereafter, the appropriate wing of the Union has taken a decision as reflected in the notification of 29 July 2021. The Union maintains that this is not the appropriate stage for testing the validity of the notification dated 29 July 2021 or questioning the manner of reservation indicated therein. The Union seeks to confine the matter to whether the order of 27 July 2020 has been complied with in letter and spirit., As to the petitioner's submission that its special leave petition, which has resulted in a civil appeal pending in the Supreme Court of India, was limited to Other Backward Classes reservation being applied to All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State in academic year 2020‑21, the Union refers to the petition filed before the Supreme Court, particularly the prayer therein, to suggest that the petitioner understood that its writ petition had been dismissed and the relief it had sought had been declined by this Court. The Union claims that, in such circumstances, it cannot be said that the petitioner today reads the order to imply that its petition had been allowed or that the State reservation quota as per the Act of 1993 had been directed to be made applicable to the All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State., Similarly, the Union submits that since the Supreme Court merely considered, at the interim stage, whether the Other Backward Classes reservation in All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State should be applied in 2020‑21 or in the next academic year, the casual observation from the order dated 26 October 2020 cannot be twisted out of context and interpreted to imply that it was the Supreme Court's understanding of the Division Bench order of this Court dated 27 July 2020., For such purpose, the Union has relied on a judgment reported at (1996) 6 SCC 44 (Union of India v. Dhanwanti Devi) for the following instructive passage at paragraph 9 of the report: 'It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well‑settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above.', The Union has also relied on a judgment reported at (1996) 6 SCC 291 (J.S. Parihar v. Ganpat Duggar) for paragraph 6 thereof, where the discussion was on whether the Single Judge of the High Court, in contempt proceedings, could redraw a seniority list that had been prepared in purported compliance with a previous order of the court. In the context of the matter before the Supreme Court of India, the court found that the relevant order, which was said not to have been complied with, required a seniority list to be prepared; however, in the contempt proceedings, the Single Judge examined the veracity of the seniority list, which the Supreme Court frowned upon since a faulty seniority list would entitle the petitioner to file a fresh petition and avail the opportunity of judicial review., To start with, it does not appear that the special leave petition carried by the petitioner against the said order was confined to the implementation of reservation in academic year 2020‑21 itself, rather than from 2021‑22. It is true that the interim application was confined to such aspect, but the special leave petition must be seen as a wholesome challenge to the judgment and order of 27 July 2020 as, in the very first paragraph of the special leave petition, the petitioner claimed that the Hon'ble High Court inter alia declined to grant the petitioner's prayer seeking extension of Other Backward Classes reservation in the All India Quota as per the laws in Tamil Nadu on erroneous considerations., In the interim relief sought as part of the special leave petition itself, the following prayer is indicative of the petitioner's understanding of the judgment and order sought to be appealed against: A. Stay the operation and execution of the impugned judgment and final order dated 27 July 2020 passed by the Hon'ble High Court of Judicature at Madras in Writ Petition (Civil) No. 8361 of 2020., At the same time, the counter‑affidavit filed on behalf of several Union officials, arraigned as contemnors herein, including the Secretary in the Ministry of Health and Family Welfare, also betrays the general confusion that prevails. Paragraph 4 of such affidavit filed on 15 April 2021 states, inter alia: 'I respectfully submit that the prayer in the main petition pertained to extending Other Backward Classes reservation in the All India Quota Scheme of MBBS and postgraduate seats. The scheme as formulated by the Hon'ble Supreme Court consists of 15 per cent of total available undergraduate seats in government medical colleges and 50 per cent of total postgraduate seats available in government medical colleges. In the original scheme, there was no reservation for any category from 1987. In 2006, the Hon'ble Supreme Court in the matter of Abhay Nath v. University of Delhi allowed reservation for Scheduled Castes and Scheduled Tribes in the All India Quota for the first time. In 2015, a petition was filed in the Hon'ble Supreme Court in the matter of Dr. Saloni Kumari and others v. Directorate General of Health Services praying for implementation of 27 per cent reservation for Other Backward Classes in the All India Quota Scheme. The said petition is still pending in the Apex Court. In this petition, the Ministry in its affidavit filed in 2016 had suggested the Apex Court apply State‑specific reservation for Other Backward Classes under the All India Quota with the condition that overall reservation would not exceed 50 per cent of total available seats.', Paragraph 9 of such affidavit refers to the 69 per cent overall reservation in educational institutions in this State and claims that applying such reservation would breach the law laid down in the Indira Sawhney case, as it has been clearly held by the Hon'ble Apex Court that overall reservation should not exceed 50 per cent. After referring to the Saloni Kumari case in the following paragraph, the affidavit indicates that the Central Government is ready and willing to grant overall reservation consisting of Other Backward Classes and Scheduled Castes and Scheduled Tribes up to the 50 per cent ceiling limit in terms of the Indira Sawhney case, and that anything beyond would defeat the dictum laid down by the Supreme Court of India., Paragraph 13 of the affidavit reveals the Union's understanding of the recommendations of the committee directed to be constituted by the order of this Court: 'The Committee offered two options for implementation of Other Backward Classes reservation in the All India Quota Scheme – (i) State‑specific reservation as per the Other Backward Classes reservation prevalent in the respective State; or (ii) uniform 27 per cent reservation as per the provisions of the Central Education Institutions (Reservations in Admissions) Act, 2006.', The State of Tamil Nadu, quite naturally, supports the petitioner. The State filed an affidavit in Writ Petition No. 8361 of 2020, affirmed by its Health Secretary on 15 June 2020. In that affidavit, the State's understanding of the purpose of the writ petitions appears at paragraph 2: the prayer was for 50 per cent reservation in All India Quota seats in the State for Backward Classes, Most Backward Classes and Denotified Communities in undergraduate, postgraduate and diploma medical and dental streams in the State of Tamil Nadu., After narrating a brief historical perspective and referring to the judgment reported at AIR 1951 SC 229 (B. Venkataramana v. State of Madras) that led to the First Constitution Amendment in 1951 and the introduction of clause (4) in Article 15 of the Constitution, the affidavit traverses the saga of the increase in reservations, the Mandal Commission recommendations, the judgment in Indra Sawhney, and the Act of 1993 coming into effect in 1994. Paragraph 22 of the affidavit refers to an office memorandum of 20 April 2008 by which the Union Ministry of Human Resource Development indicated that 27 per cent reservation for the Other Backward Classes category would be followed from 2009 in respect of 15 per cent undergraduate MBBS/BDS seats and 50 per cent postgraduate MD/MS/Diploma/MDS seats of the All India Quota, but only in central educational institutions in the country. Indeed, the averments in such regard appear quite confusing, not unlike everything else pertaining to reservation, including its purpose, its duration and particularly the departure that has been made over the years from the understanding of the issue evident from the Constituent Assembly debates and the Constitution as originally adopted., What is of significance in the State's affidavit filed in the course of the proceedings that culminated in the judgment and order dated 27 July 2020 is that the State indicated that 27 per cent Other Backward Classes reservation has been provided in undergraduate admissions in the year 2019‑2020 only in two institutes, namely ESIC Medical College & PGIMER, Chennai and GMC & ESIC, Coimbatore. There is, therefore, a precedent for applying 27 per cent reservation for Other Backward Classes in two institutions in the All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in this State., In deference to the issue of reservation for Other Backward Classes in All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses remaining pending before the Supreme Court of India in the Saloni Kumari case, this Court was understandably reluctant to take up the batch of petitions. However, the Supreme Court clarified by an order of 13 July 2020 that the High Court can proceed to adjudicate the writ petitions on merits despite the pendency of the Saloni Kumari case in the Supreme Court. It was in such a backdrop that the relevant writ petitions were taken up and culminated in the judgment and order of 27 July 2020, the operative part of which has been quoted at the beginning of this judgment., It is first that the elephant in the room has to be banished. It is inconceivable that all States having government‑run medical colleges would give up a percentage of seats to an All India Quota, but would retain the right to enforce reservation in such quota as per the State norms. Indeed, in the initial judgment in Dr. Pradeep Jain and the two key judgments in Dinesh Kumar (II) and Abhay Nath that followed, the need for an All India Quota was mooted since some States in the 1980s may not have had government‑run medical colleges or any medical college at all, and the Supreme Court frowned on the domicile rule for getting admission to medical courses., One aspect on which there is no dispute is that all the appearing parties accept that the All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the States are pursuant to a scheme initiated by Supreme Court orders which, subsequent to the Abhay Nath judgment, requires reservation to the extent of 15 per cent for Scheduled Castes and 7.5 per cent for Scheduled Tribes. Though the All India Quota scheme has been a boon for meritorious candidates in States not having quality medical educational institutions, keeping with the fashion of reservation, 22.5 per cent reservation has been applied. Logically, since the Central Act of 2006 provides for an additional 27 per cent reservation for Other Backward Classes (other than the creamy layer), in line with several Supreme Court judgments requiring the wealthy and privileged among the OBC to be excluded from the benefit of reservation, such provision should apply to All India Quota seats for medical courses even though the seats may be in institutions not run by the Union Government., If a pool of seats is available to candidates from all over the country, irrespective of an individual's place of residence, the State‑wise reservation, which is based on the demography of the State, cannot hold good for the entire country as the mix of socially backward classes would differ from region to region even within a State. There is no doubt that the Act of 1993 in the State was referred to off and on in the said order, but the general sense that the order conveys is not the acceptance of the applicability of the reservation policy as per the Act of 1993 to All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State. A stray sentence from a judgment cannot be read out of context; the general sense it conveys, its operative part and the specific directions issued therein would be the guiding factors. Indeed, if the order had accepted the applicability of the reservation quota as per the Act of 1993 to All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State, there would be no need for the order providing for the setting up of a committee or for the committee to engage in consultations to arrive at the methodology for applying reservation for Other Backward Classes candidates., It was only natural that the Court was circumspect, since the Saloni Kumari case was pending and, despite accepting in principle that Other Backward Classes reservation would apply to All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State, the order did not indicate to what extent such reservation would apply. However, there can be no doubt that the order squarely repelled the present petitioner's contention that reservation as per the Act of 1993 would apply to the All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State., Ordinarily, reservations pertaining to admission to educational institutions and appointments to government service are provided by statutory enactments or rules under a particular statute. There is an All India Quota pool to which the Act of 1993 could not apply and the Central Act of 2006 would also not apply in terms; the extent of reservation for Other Backward Classes that needed to be applied was pending consideration before the Supreme Court of India. Unlike the present case, where there is something to go by, this Court did not have the advantage of any suggestion from any quarter while delivering judgment in the batch of writ petitions as to what extent of Other Backward Classes reservation should apply or why. What the judgment may be seen to have done is to implore the Union to bring about legislation while being aware of the impermissibility on the part of any court to issue a writ in the nature of mandamus to any legislature to bring about legislation. The most unusual feature of the order is its final part requiring the parties to obtain any clarification from the Supreme Court, if necessary. Ordinarily, a High Court scarcely has the authority to make such an order, except that in this case the legal issue was pending before the Supreme Court in the Saloni Kumari case., As to the Supreme Court order of 26 October 2020, it must be said that the passage that the petitioner has placed strong reliance on was a passing comment, at the highest, in the context of the interim application that was before the Supreme Court; though even a prima facie view expressed by the Supreme Court has to be taken extremely seriously by the High Court, if only because of the status of the Supreme Court in the judicial hierarchy. While an obiter of another High Court or of another bench may be brushed aside, even an obiter of the Supreme Court commands respect, though the obiter may not be part of the ratio decidendi, which is the law as declared by the Supreme Court under Article 141 and becomes binding, inter alia, on all courts., The problem here is not as simple as applying the general principles of the doctrine of precedents. Strictly speaking, the doctrine of precedents applies when the enunciation of law in an unconnected previous matter is cited in the course of a subsequent case. In the present case, the difficulty arises because the present contempt petition arises out of an order which has been carried to the Supreme Court by way of an appeal, and an interim order in the appeal observed the import of the order dated 27 July 2020. Ordinarily, if the relevant passage can be seen to be integral to the interim application decided by the order dated 26 October 2020, it would carry considerable weight in the interpretation of the order dated 27 July 2020 in any contempt proceedings arising out of such order. However, since the Supreme Court did not interfere with the order dated 27 July 2020 at all and noted that the relevant committee had been set up, there appears to be sufficient basis to the Union's submission that the observation is not an absolute or conclusive finding as to the import of the order dated 27 July 2020., The matter is of some importance as the careers of not only the prospective All‑India candidates in the medical entrance seats surrendered by the State in the All India Quota would be affected by the present order; it may also have an All‑India impact, subject to what may ultimately be decided by the Supreme Court of India. Now that the concern of the Act of 1993 has been removed, inter alia, since there cannot be any denotified community or most backward classes or backward classes as per the definition in such enactment in any other State, it is unnecessary to delve into the history of reservation or the purpose for which the concept was introduced in the Constitution and how it may have been distorted over time. Respected journalist Arun Shourie makes a good argument in *Falling Over Backwards* (ASA, Rupa; 2006), but constructive criticism may now have gone out of fashion., The principal point that falls for consideration is whether the order of this Court has been complied with. To the extent that a committee was constituted and made its recommendations, the order has been complied with. However, the order may not have contemplated that neither recommendation of the committee would be accepted and a third alternative would be imposed by the Union, though the order required consultation between several stakeholders to arrive at an informed decision. Equally, the first option indicated by the committee was no option at all, as it was absurd to suggest that the State reservation rules would apply to All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State, since that would, ipso facto, take the seats away from the All India Quota pool back to the State, as only backward classes as notified by the State in its official gazette would be entitled to the reservation and not candidates not resident in the State., The easy way out, particularly that the Union tempts the Court with since the petition before the Court is a contempt petition, is to refer to the quasi‑criminal jurisdiction that is the field of contempt and hold that once there is substantial compliance and a possible interpretation of the order, there would be no wilful or deliberate violation of the order for contempt proceedings to be pursued. That would result, in effect, in the several hearings before this Court and the Supreme Court in the previous round being rendered meaningless and a fresh adjudication being started as to the validity of the notification of 29 July 2021. While that may appear to be the most preferred route where this lis is disposed of and another disposal is recorded, it may not be the most honest approach of a constitutional court to dispose of the lis without an attempt at resolving the dispute, particularly when the matter is of such importance and involves the careers of budding doctors in the country. It is true that the petition before this Court is one for the perceived breach of a previous order of this Court, but if the present petition were to be ineffectively disposed of, that would result in another petition, multiplicity of proceedings and the issue being left unresolved. It may be in public interest, at times, for courts to be decisive, without being rash, of course. At least there is a safety net even if this Court goes wrong for the matter to be decided at the highest stage; but a decision is called for in the larger public interest. Thus, the question that arises is whether the notification of 29 July 2021 is appropriate in the context of the All India Quota scheme which is recognised to be formulated by the Supreme Court of India., Even though the petition before this Court at the moment pertains to the perceived non‑compliance of an order of this Court, the manner of compliance also falls for consideration.
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Merely because the immediate lis pertains to the contempt jurisdiction would not imply that the High Court sheds its plenary authority under Article 226 of the Constitution while considering the manner of implementation of the said order. At any rate, this Bench is the Public Interest Litigation Bench in the High Court and if a further petition challenging the notification of July 29, 2021 were to be brought, it is the present Bench which would be tasked with the obligation of dealing with the same., Ideally, Parliament may have legislated and extended the ambit of the Act of 2006 to the All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the States, subject to obtaining leave from the Supreme Court, if necessary. That may have given a quietus to the matter. Equally, the expression making any special provision in Article 15 of the Constitution or in comparable Article 16 thereof does not require an enactment and the executive can issue an order that would be regarded as provision within the meaning of the said Article. In a sense, the relevant provision can be seen to have been made in the issuance of the notification of July 29, 2021, though it has the proverbial sting in its tail., Such notification provides for 15 per cent reservation for Scheduled Castes and 7.5 per cent for Scheduled Tribes, which cannot be contested in view of the Supreme Court judgments. The additions that have been made, therefore, fall for scrutiny. The 27 per cent reservation for Other Backward Classes is in tune with the Act of 2006 which applies to Central institutions all over the country and also has empirical backing in how the figure of 27 per cent was arrived at. Thus, subject to the decision that may be made by the Supreme Court in Saloni Kumari, the 27 per cent reservation for Other Backward Classes (other than creamy layer) as suggested by the Union would be acceptable. Similarly, there can be no quarrel with the five per cent horizontal reservation as per the applicable norms for persons with disabilities. That is the mandate of the Rights of Persons with Disabilities Act, 2016 and, in any event, the reservation in such case is horizontal, in the sense that it would apply to all categories reserved and unreserved. The only point for consideration is the additional 10 per cent earmarked for Economically Weaker Sections in the said notification of July 29, 2021. Since it was the Union that set about beating the State with the Indra Sawhney stick in its affidavit filed on April 15, 2021, by the same yardstick the vertical reservation beyond 50 per cent should also go out., However, in response to the High Court's specific query in such regard, despite the initial attempt by the Union to wriggle out of having to offer any justification for the contents of the notification of July 29, 2021, the Union has specifically referred to the amended Article 15 of the Constitution pursuant to the Constitution (One Hundred and Third Amendment) Act, 2019. Though the Union indicates that the issue is pending consideration of the Supreme Court, the Union points out that similar amendments brought in previously into Articles 15 and 16 of the Constitution have passed judicial muster. The Union says that there is no impediment, as on date, to the 10 per cent reservation being provided for Economically Weaker Sections in addition to the 49.5 per cent on account of Other Backward Classes, Scheduled Castes and Scheduled Tribes in view of the specific authority under Article 15(4) of the Constitution., On the face of it, the provision for additional reservation, over and above 50 per cent, permitted by the Constitution (One Hundred and Third Amendment) Act, 2019 appears to fall foul of the dictum in Indra Sawhney. It is also possible to read down the dictum in Indra Sawhney to apply in the context of the constitutional provisions then in place. Either way, no conclusive pronouncement in such regard needs to be made at this stage or at this level since the challenge to such amendment is pending consideration before a Constitution Bench., What is undeniable, however, is that the All India Quota scheme has been introduced for entrance to undergraduate and postgraduate degrees and diploma courses in government-run or aided medical and dental colleges across the country pursuant to orders of the Supreme Court. Indeed, the appearing parties acknowledge that such scheme is monitored by the Supreme Court. The reservation for Scheduled Caste and Scheduled Tribe candidates in the All India Quota seats was fixed by an order of the Supreme Court. Thus, it is only to be expected that further reservation in the All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State should be only upon the approval of the Supreme Court., To the extent that 27 per cent of the seats available for admission in Central educational institutions is reserved for Other Backward Classes candidates, other than the creamy layer, and such figure having been arrived at upon empirical studies being conducted, the provision for 27 per cent reservation for Other Backward Classes candidates, in addition to the approved reservation for Scheduled Caste and Scheduled Tribe candidates as indicated in the notification of July 29, 2021, may be permissible, subject to the formal approval of the Supreme Court being obtained in such regard. In a sense, the in‑principle approval of the Supreme Court for providing reservation for Other Backward Classes candidates in All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses in the State is apparent from the order dated October 26, 2020. To such extent, the provision made for 27 per cent reservation in such regard appears to be permissible, since the Supreme Court approved the implementation of reservation for Other Backward Classes candidates beginning academic year 2021‑22 by the same order., The appropriate reading of the dictum in Indra Sawhney would be that reservation on the ground of status cannot exceed 50 per cent unless there are exceptional circumstances. If the dictum is confined to vertical reservation, as it should be, it would imply that the cap of 50 per cent ought not to be breached. Notwithstanding the 103rd Amendment to the Constitution not having been made at the time the judgment in Indra Sawhney was pronounced, it is submitted (with due deference to the fact that the issue is pending consideration before the Constitution Bench) there may be a case for horizontal reservation cutting across the unreserved and reserved categories for the Economically Weaker Sections. For one, even if a common reasonable yardstick were to be applied, Economically Weaker Sections would be found to exist across the board. This may suffice to cater to the perceived need for upliftment of the Economically Weaker Sections without there being a conflict with the dictum in Indra Sawhney. However, the decision in such regard has to be left for another day and at an exalted level., Though the discussion in this judgment pertains to the State of Tamil Nadu, it must be noticed that reservation in All India Quota seats for admission to the undergraduate, postgraduate and diploma medical and dental courses across the States must be uniform. Logically, if the All India Quota seats are thrown open to candidates across the country, there cannot be reservation to one extent in one State and reservation to another extent in another State., However, the inclusion of a further 10 per cent by way of vertical reservation for Economically Weaker Sections would require the approval of the Supreme Court and, to such extent, the reservation for Economically Weaker Sections as indicated in the notification of July 29, 2021 has to be regarded as impermissible till such approval is obtained., Accordingly, the present lis is decided by holding as follows: Since the committee required to be constituted by the order dated July 27, 2020 was constituted and such committee gave its opinion and the Union, or its appropriate agencies, have acted on the basis thereof albeit not exactly in terms of the recommendations, no case of wilful or deliberate violation of the said order can be said to have been made out. The notification of July 29, 2021 issued by the Union as a consequence of the order dated July 27, 2020, appears to be in order insofar as it provides for reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes categories. The horizontal reservation provided in such notification for persons with disabilities also appears to be in accordance with law. The additional reservation provided for Economically Weaker Sections in the notification of July 29, 2021 cannot be permitted, except with the approval of the Supreme Court in such regard., Contempt Petition No. 181 of 2021 is dropped. Sub‑Application No. 49 of 2021 is closed. There will be no order as to costs., It may, however, be observed as a footnote that the entire concept of reservation that appears to have been addressed by the Constituent Assembly while framing the Constitution may have been turned on its head by repeated amendments and the veritable reinvigoration of the caste system and even extending it to denominations where it does not exist instead of empowering citizens so that merit may ultimately decide matters as to admission, appointment and promotion. Rather than the caste system being wiped away, the present trend seems to perpetuate it by endlessly extending a measure that was to remain only for a short duration to cover the infancy and, possibly, the adolescence of the Republic. Though the life of a nation‑state may not be relatable to the human process of aging, but at over‑70, it ought, probably, to be more mature.
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Neutral Citation Number: 2023/DHC/000886 (Original) + Commercial Court 537/2022 and Interim Application 12437/2022 (Order XI Rule 1(4) of the Code of Civil Procedure). Through: Mr. Rishi Bansal, Mr. Arpit and Mr. Deepak, Advocates, versus Through: Mr. Arnav Goyal, Advocate. Interim Application 13291/2022 (Order VIII Rule 1(3) of the Code of Civil Procedure for placing documents on record)., By this application preferred under Order VIII Rule 1(3) of the Code of Civil Procedure, 1908, the defendants seek to place certain additional documents on record. Following the decision in Sudhir Kumar @ S Baliyan v. Vinay Kumar G.B., the application is treated as having been preferred under Order XI Rule 1(10) of the Code of Civil Procedure, as amended by the Commercial Courts Act, 2015., Mr. Rishi Bansal, learned counsel for the plaintiff, initially opposed the application but later agreed to the documents being taken on record., Accordingly, the application is allowed. The documents filed with the application are taken on record. Interim Application 12436/2022 (Order XXXIX Rules 1 and 2 of the Code of Civil Procedure) and Interim Application 13344/2022 (Order XXXIX Rule 4 of the Code of Civil Procedure)., This case was originally pending before the Commercial Court and has subsequently been transferred to the Delhi High Court. In Interim Application 12436/2022 filed by the plaintiff under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure, ad interim relief was granted by the Additional District Judge by order dated 25 June 2021., The defendants have filed Interim Application 13344/2022 under Order XXXIX Rule 4 of the Code of Civil Procedure for vacation of the said order dated 25 June 2021., I have heard Mr. Rishi Bansal, learned counsel for the plaintiff, and Mr. Arnav Goyal, learned counsel for the defendants on these applications and proceed, by this order, to decide the applications., The plaintiff is a well‑known entity engaged in the manufacture of, among other things, musical keyboards. One of the plaintiff’s keyboards is registered in the plaintiff’s favour as an Electronic Keyboard vide Design Registration No. 224547, with effect from 2 September 2009. The registration is valid and subsisting till 2 September 2024. The Certificate of Registration issued by the Controller of Designs certifies that novelty resides in the shape and configuration of the keyboard. The various views of the keyboard, each of which the Certificate of Registration certifies as having novelty in its shape and configuration, may be presented in a tabular form: Perspective View, Front View, Rear View, Top View, Bottom View, Right View, Left View., The plaintiff claims copyright in the registered design under Section 11(1) read with Clause (c) of Section 23 of the Designs Act., The plaintiff manufactures keyboards carrying the suit design under model numbers SA‑46 and SA‑47, the difference between the two being the colour of the base of the keyboards., In order to fortify its case regarding its goodwill and reputation in the market, the plaintiff has provided figures of returns from sale of the products carrying the suit design from the year 2011 till 2020 in India. The defendant does not dispute the reputation or goodwill of the plaintiff., The plaintiff asserts that the suit design has become indelibly associated with the plaintiff and has, over time, acquired secondary significance. The purchasing public invariably associates the suit design with the plaintiff’s keyboard., The plaintiff is aggrieved by the adoption, by the defendants, of a near‑identical design for its keyboard sold under the brand name Nexus32, under its registered trademark Blueberry. The plaintiff provides photographs of the plaintiff’s and the defendants’ keyboards to emphasize the likeness of the designs., When a design is registered, the registered proprietor of the design shall, subject to the provisions of the Designs Act, have copyright in the design during ten years from the date of registration. Copyright means the exclusive right to apply a design to any article in any class in which the design is registered., Physical samples of the plaintiff’s and the defendants’ keyboards have also been produced in the Delhi High Court, and the photographs provided in the plaint are faithful representations of the two keyboards., The plaint also emphasizes the following similar features between the plaintiff’s and the defendants’ keyboards: identical placement of piano‑organ key along with the horizontal line dividing the panel into two segments; identical shape of the numeric keys; identical placement of power button with identical shape and configuration; identical placement of volume button with identical shape and configuration; identical placement of display board with identical shape; identical placement of tone keys in triangular shape as registered in design with identical shape and configuration; identical engraved line at the top of the keyboard with identical outline of the board. Keys placed below the horizontal line in the Nexus32 are a mirror image of the plaintiff’s product. Piano‑organ keys of the Nexus32 are of the same shape and configuration as those of the plaintiff’s product, both being circular with shallow depth in centre. The rear view of the Nexus32 is an exact replica of the plaintiff’s product. The infringing goods have copied the shape and configuration of the said goods., Defendant 2, according to the plaint, was a former distributor of the plaintiff who was actually manufacturing covers for the plaintiff’s keyboards before setting up his own business. Mr. Arnav Goel contests this contention and submits that there is no material on record indicating that Defendant 2 was selling the plaintiff’s SA‑46 or SA‑47 keyboards., It is in these circumstances that the present plaint has been instituted before the Delhi High Court, seeking an injunction against the defendants and all others acting on their behalf from manufacturing or selling any keyboards carrying the impugned design or any other design that is deceptively similar to the suit design., Concomitantly, the suit prays for rendition of accounts, delivery up, costs and damages., As already noted, the Additional District Judge, before whom the suit was originally instituted, has already granted ad interim relief to the plaintiff by order dated 25 June 2021. The issue before the Delhi High Court today is whether the interim relief should be confirmed or vacated., The defendants, in their written statement filed in response to the suit, do not dispute the allegation that the defendants’ Nexus range of keyboards are identical or near‑identical in design to the plaintiff’s keyboards carrying the suit design., The defence, as argued by Mr. Arnav Goyal, learned counsel for the defendants, is predicated on Section 22(3) read with Section 19(1)(b) and (c) and Section 4(a), (b) and (c) of the Designs Act. The plea, fundamentally, is that the plaintiff’s design suffers from lack of novelty and is similar to the design of several other keyboards., In any suit or other proceeding for relief under Section 22(3), every ground on which the registration of a design may be cancelled under Section 19 is available as a ground of defence., Any person interested may present a petition for the cancellation of the registration of a design on any of the following grounds: (a) the design has been previously registered in India; (b) it has been published in India or any other country prior to the date of registration; (c) the design is not new or original., A design which (a) is not new or original; or (b) has been disclosed to the public anywhere in India or any other country by publication in tangible form or by use prior to the filing date, or where applicable, the priority date of the application for registration; or (c) is not significantly distinguishable from known designs, is prohibited from registration under Section 4., The additional documents placed on record by today’s order are listings on the internet of similar keyboards on various e‑commerce websites, apparently to buttress the defendants’ case of lack of novelty. The plaintiff disputes this allegation and submits that the plaintiff’s design was new, novel and original., Even where the defendants’ design is identical or similar to the suit design, Section 22(3) of the Designs Act permits a defendant to raise every ground on which the registration of a design may be cancelled under Section 19 as a defence to an allegation of design piracy. Section 19(1) enumerates five circumstances for cancellation; the relevant clauses here are (b) and (c), which envisage cancellation if the design has been published prior to registration or if the design is not new or original., Publication is not defined in the Designs Act. A Full Bench of this Court, noting this fact in Reckitt Benkiser India Ltd v. Wyeth Ltd, held that the issue is no longer res integra, referring to the judgment of the Supreme Court in Bharat Glass Tube Ltd v. Gopal Glass Works Ltd. The Supreme Court observed that publication of a design in paper form may amount to prior publication, but each case must be decided based on its facts, including whether the design exists in a public record of the Registrar of Designs., In Bharat Glass Tube Ltd v. Gopal Glass Works Ltd, the Supreme Court framed three issues: (i) whether the design was not new or original because the roller bearing the design was published before the date of registration and the registered proprietor was not the owner; (ii) whether the design was published outside India as well as in India prior to the date of application; (iii) whether the registered design was in the public domain due to sale or use of the design prior to the date of application., The Supreme Court held that Section 4, which prohibits registration of a design that is not new or original, requires the complainant to discharge the burden of showing lack of originality. The expression “new or original” means that the design has not been published anywhere or made known to the public, and that it was invented for the first time., The Supreme Court, citing Dover Ltd v. Nurnberger Celluloidwaren Fabrik Gebruder Wolff and Pugh v. Riley Cycle Co Ltd, defined design as a conception or suggestion of a shape, picture, device or arrangement that can be applied to an article by manual, mechanical or chemical means. A design must be reduced to a visible form to be registrable., According to P. Narayanan’s definition in Law of Copyright and Industrial Designs, a design is a conception or suggestion of a shape, picture, device or arrangement applicable to an article, and is not the article itself., The Supreme Court further ruled that a design capable of registration cannot consist merely of a conception; it must consist of the features as they appear in the article to which they have been applied by some industrial process. An applicant must produce a pictorial illustration of the idea to establish it as new or original., Section 2(g) of the Designs Act defines “original” in relation to a design as originating from the author and includes cases which, though old in themselves, are new in their application., Section 19 must be read with Section 4, which delineates categories of designs whose registration is prohibited. Clause (a) prohibits registration of a design which is not new or original, and clause (b) prohibits registration of a design which has been disclosed to the public anywhere in India or any other country by publication in tangible form or by use prior to the filing date., In Diageo Brands B.V. v. Alcobrew Distilleries India Pvt Ltd, the Court held that a design is published in tangible form when, by viewing the publication, the article represented can be immediately visualized. A pictorial or photographic representation sufficient to envision the design constitutes publication., We need not pursue that line further, as the actual physical articles bearing the suit design and the impugned design have been presented before me and faithful photographic reproductions are also available on the record., At a bare glance, it is clear that the plaintiff’s and the defendants’ keyboards are deceptively similar in design. The various similarities highlighted in paragraphs 12, 14 and 15 of the plaint are evident from the physical samples. Accordingly, the design of the defendant’s keyboard is an obvious imitation of the suit design within the meaning of Section 22(1) of the Designs Act., Mr. Arnav Goel clarifies that the only point he seeks to urge as defence is that the plaintiff’s design is not new or original., During the existence of copyright in any design, it shall not be lawful for any person, without the licence or written consent of the registered proprietor, to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, for the purpose of sale; to import for sale any article belonging to the class in which the design has been registered and having applied to it the design or any fraudulent or obvious imitation thereof; or, knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose for sale that article., By the conjoint operation of Sections 22(3) and 19(1) of the Designs Act, lack of novelty or originality can constitute a ground of defence against an allegation of design piracy where such lack of novelty or originality is a ground for cancellation of the registration. The lack of novelty or originality must be assessed as of the date of registration. If, at the time of registration, the design was not lacking novelty, subsequent copying does not constitute a ground for cancellation., The plea of lack of novelty or originality must be examined with respect to the date of registration of the suit design. The existence of similar designs in the market thereafter, or their publication, cannot indicate lack of novelty within the meaning of Section 19(1)(c) or Section 4(a) of the Designs Act., The onus to prove lack of novelty or originality, when raised as a defence under Section 22(3) read with Section 19(1)(c), lies on the defendants., No such material has been placed on record. In response to the Court’s query, Mr. Arnav Goel produced a screenshot from a document dated 8/10/22, 5:41 PM, from made‑in‑china.com, showing a keyboard for sale. He submitted that the words “since 2008” indicated the keyboard was available in the market since 2008, prior to the registration date., It is obvious that no such inference can be drawn. The words “since 2008” follow the words “Diamond Member” and only indicate that Aileen Music Co., Ltd., Jiangsu China was a Diamond Member since 2008. They do not indicate that the keyboard shown was available for sale prior to 2008., Therefore, there is nothing to substantiate the defendants’ contention that the suit design is liable to cancellation on account of lack of novelty or originality., Nor has any document been placed on record to indicate prior publication. All additional documents placed on record pertain to online listings of keyboards on various e‑commerce websites, none of which predates 2009., The plea that the suit design is liable for cancellation on the ground of lack of novelty and originality is, therefore, without substance., That being the sole plea of the defendants and the defendants’ design being an obvious imitation of the suit design, the plaintiff is entitled to an interlocutory injunction pending disposal of the suit., Accordingly, the ad interim injunction granted by the Additional District Judge by order dated 25 June 2021 stands confirmed pending disposal of the suit., Interim Application 12436/2022 is allowed accordingly., Interim Application 13344/2022 is dismissed., The matter is listed before the Joint Registrar (Judicial) for marking of exhibits on 15 March 2023, after which it will be placed before the Delhi High Court for case management hearing and further proceedings. Both sides are directed to place on record suggested issues., The judgment will be uploaded on the website of the Delhi High Court within 24 hours.
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Civil Writ Jurisdiction Case No. 19822 of 2019. Indian National Trust for Art and Cultural Heritage (INTACH) Patna Chapter, through its Convener Sri Jatindra Kumar Lall, aged about 83 years, male, son of late Y. K. Lall, resident near IOC Petrol Pump, Raja Radhika Raman Path, Boring Road, Patna, Bihar 800001, is the petitioner. The respondents are: (i) the State of Bihar through the Chief Secretary, Patna; (ii) the Principal Secretary, Department of Urban Development, Patna; (iii) the Principal Secretary, Department of Home, Patna; (iv) the District Magistrate, Patna; and (v) Patna Municipal Corporation, Patna., For the petitioner, Mr. Sanket, Advocate, appears. For the respondents, Mr. Lalit Kishore, Additional Advocate General, and Mr. Prabhat Kumar Verma, Additional Advocate General-3 appear in Case No. 19822 of 2019. In Case No. 19847 of 2019, Mr. Sanket, Advocate, appears for the petitioner and Mr. Yogendra Prasad Sinha, Additional Advocate General-7 appears for the respondents., The petitioner has approached the Patna High Court seeking protection of a structure built by the Dutch in the eighteenth century. According to the petitioner, the structure is an ancient monument of great historical importance and must be preserved. The building, commonly termed the Collectorate, was constructed in the eighteenth century for commercial purposes, possibly to propagate the trade of opium. After independence, it was used by the district administration for various government offices. An inspection report dated 3 May 2016, prepared by experts headed by the Director of Archaeology, Bihar, states that before independence the building was used for commercial purposes, storing saltpeter and opium, and that a significant portion of the structure is damaged and dilapidated., In 1972, the Archaeological Survey of India surveyed the site, and subsequently specific sites and monuments were declared protected under the Bihar Ancient Monuments and Archaeological Sites Remains and Art Treasures Act, 1976, and under the Ancient Monuments and Archaeological Sites and Remains Act, 1958. However, the Collectorate has never been notified as a protected site or monument under any statute. The 2016 expert report does not recommend the building as suitable for declaration as a monument; it notes that the building’s aesthetic elements are relatively insignificant and suggests constructing a replica of the exterior pillars near the façade to preserve its historical reference., The Government of Bihar, with support from the Central Government, decided to declare Patna as a Smart City. Under this project, a modern Collectorate building with all modern amenities is to be constructed, requiring demolition of the existing structure. The project report estimated a cost of approximately Rs. 140 crore, and tenders were invited in 2018/early 2019. When the construction of the modern complex was expedited, the petitioner filed the instant petition on 23 September 2019, seeking (i) a writ of mandamus directing the respondents not to demolish the Collectorate complex, which includes Dutch‑era record rooms, the old District Engineers Office, the District Board Building, neighbouring buildings, and the British‑era District Magistrate Office; (ii) a writ directing the respondents to preserve, restore and maintain the complex; and (iii) any other relief deemed appropriate., A second petition filed on the same date seeks (i) a writ directing the respondents to constitute the Bihar Urban Arts and Heritage Commission under Section 77 of the Bihar Urban Planning and Development Act, 2012; (ii) a writ directing the respondents to earmark heritage buildings in the State and frame policies for their conservation and protection; and (iii) any other relief deemed appropriate., The tender for construction of the new Collectorate building was finalized, and a work order was awarded on 31 July 2019 to the lowest bidder. Two issues arise for consideration: (a) whether the Government’s action violates provisions of the Bihar Urban Planning and Development Act, 2012; and (b) whether the Government’s decision to develop the site after demolition of the Collectorate can be said to be arbitrary, perverse or capricious., The first issue concerns the constitution of the Bihar Urban Arts and Heritage Commission. Section 77 of the Act allows the Government to constitute the Commission by notification, specifying a chairperson and members representing urban planning, visual arts, architecture, Indian history or archaeology, tourism and environmental sciences. The Commission is empowered to make recommendations on restoration, conservation, and planning of heritage sites, and the Government may issue directions to the planning or local authorities after considering those recommendations., The Court notes that the language of the statute is simple, clear and unambiguous. The newly constituted Commission includes the Principal Secretary of the Art, Culture and Youth Department, the Deputy Secretary‑cum‑Director of the Archaeological Directorate, the Director of the Tourism Department, a representative of the Lalit Kala Academy, and other officials. All statutory requirements for composition have been satisfied, and therefore there is no ground to interfere with the constitution of the Commission., The second issue relates to the heritage value of the Collectorate. Part‑IV A of the Constitution (Article 51A(f)) obliges citizens to value and preserve the nation’s cultural heritage. Supreme Court decisions, such as K. Guruprasad Rao v. State of Karnataka (2013) and Sarika v. Administrator, Shri Mahakaleshwar Mandir Committee (2018), emphasize the duty to protect ancient and historical monuments. However, the Archaeological Survey of India has not declared the Collectorate a historical monument, and the expert committee found it to have no significant historical, architectural, artistic, aesthetic or cultural importance., On 31 January 2020, the State moved an application seeking modification of the interim order dated 25 September 2019 that restrained demolition. The Court clarified that if the State constituted a committee under the Development Act, its prayer would be considered. The Committee’s inspection report dated 1 June 2020 concluded that the building is totally dilapidated, beyond repair, and lacks historical importance, recommending demolition for redevelopment. The Court finds no reason to differ with this finding., The expert report of 3 May 2016 observed that because the structure was used for commercial purposes, its aesthetic elements are relatively sparse. A translation of the Hindi term ‘fojy’ was clarified to mean ‘sparse’ rather than ‘rare’. The report therefore concluded that the building was essentially a godown for saltpeter and opium with hardly any aesthetic value., The Court reiterates that courts should be slow to interfere with expert opinions, as established in cases such as The University of Mysore v. C.D. Govinda Rao (1965) and The Secretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity (2010). The Court also emphasizes the necessity of recording reasons in judicial orders to ensure transparency and fairness, citing numerous Supreme Court decisions., In view of the foregoing, the Court vacates the interim order dated 25 September 2019, leaving it open for the Government to take necessary consequential action. The petitions are disposed of, and any interlocutory applications, if any, stand disposed of.
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Criminal Appeal No.1200 of 2023 dated the 9th day of November 2023. The appellant is the sole accused, who is convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of 1 lakh for the offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and, in default of fine, a rigorous imprisonment for a period of three months., Crime No.1480/2006 was initially registered by Ernakulam Central Police against the appellant. The case of the prosecution was that on 09.11.2006 at 3.20 pm, Police Witness 2 while doing patrolling duty, got information that a person wearing black pants and rose shirt having narcotic drugs in a bag was standing at Foreshore Road, Ernakulam. The police went to Foreshore Road and in front of the CIFNET office, the appellant was found carrying a small handbag. Police Witness 2 introduced his identity to the appellant and issued a notice stating that he was going to conduct a body search of the appellant and asked whether the appellant needed it to be done in the presence of a Gazetted Officer or a Magistrate., The appellant issued a letter in writing in English stating that Police Witness 2 himself may conduct the body search. On conducting the body search, five ampules of Phenergan, five ampules of Lupigesic, four ampules of Diazepam IP, two ampules of Buprenorphine IP and one ampule of Diazepam Biofort were found in the handbag of the appellant. Possession of those drugs is in contravention of the provisions of the Narcotic Drugs and Psychotropic Substances Act. Thus, the appellant committed an offence punishable under Section 22(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985., Before the Additional Sessions Court-VIII, Ernakulam, three official witnesses were examined as Police Witnesses 1 to 3. Exhibits P1 to P12 and MO1 to MO3 were marked. After appreciation of evidence, the Additional Sessions Judge found that the appellant was found in possession of a commercial quantity of psychotropic substance and that the offence under Section 22(c) of the NDPS Act is proved against the appellant. The Additional Sessions Judge consequently sentenced the appellant to undergo rigorous imprisonment for a period of ten years and to pay a fine of 1 lakh. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for a period of three months. The appellant challenges the said judgment dated 25.07.2023 of the Additional Sessions Judge-VIII, Ernakulam in Sessions Case No.959/2017., The appellant contended that the search was conducted in violation of Section 50 of the NDPS Act and the search is illegal. Police Witness 2 is alleged to have taken a letter in English from the appellant. The non‑production of the letter in the Sessions Court creates suspicion in the case put forth by the prosecution. The appellant urged that the prosecution ought to have procured the presence of independent persons to witness the formalities claimed to have been complied with at the time of search and seizure., The appellant further urged that the finding of the court below that Section 50 need not be complied with as seizure was made from the handbag of the appellant and not from his body is wrong and faulty. Even partial compliance of Section 50 will not meet the requirement. The appellant further argued that the evidence of the policemen is not reliable since they are interested witnesses. The court below ought to have given the benefit of doubt to the appellant., The counsel for the appellant relied on the judgment of the Honourable Apex Court in Sk. Raju @ Abdul Haque @ Jagga v. State of West Bengal [(2018) 9 SCC 708] and argued that as soon as a search of a person takes place, the requirement of mandatory compliance with Section 50 is attracted, irrespective of whether contraband is recovered from the person of the detainee or not., The counsel for the appellant placed reliance on the judgment of the Apex Court in Baldev Singh v. State of Haryana [(2015) 17 SCC 554] and argued that if the court, on an appraisal of the entire evidence, does not entertain doubt of a reasonable degree that the accused had real knowledge of the nature of the substance concealed in the bag, then the appellant is not entitled to acquittal. However, if the court entertains strong doubt regarding the awareness of the accused about the nature of the substance in the bag, it would be a miscarriage of criminal justice to convict one for the offence, keeping such strong doubt undispelled., The counsel for the appellant further argued that it is the obligation of the searching officer to have the search in the presence of either a Gazetted Officer or a Magistrate. In the case of the appellant, the appellant had no knowledge of the English language and it is alleged that the appellant gave a reply in English. In the judgment of the Apex Court in Ranjan Kumar Chadha v. State of Himachal Pradesh [2023 Kerala High Court Online 6891], the Apex Court has held that if the suspect says that he would not like to be searched before a Gazetted Officer or a Magistrate and he would be fine if his search is undertaken by the empowered officer, the matter should not rest with just an oral statement of the suspect. The suspect should be asked to give it in writing duly signed by him in the presence of the empowered officer as well as other officials of the squad., The counsel for the appellant further argued that if a detecting officer informs the right of the accused to have the presence of a Gazetted Officer but does not inform of the entitlement of the accused to request the presence of either a Gazetted Officer or a Magistrate, it would only amount to partial compliance of the provision and would not satisfactorily meet the requirements of Section 50. The Additional Sessions Judge therefore ought to have found the appellant not guilty, contended the counsel for the appellant., The Public Prosecutor resisted the appeal. The Public Prosecutor argued that when Police Witness 2 obtained information on 09.11.2006 at about 3 pm about the presence of the appellant with narcotic drugs, he recorded the information and a report under Section 42(2) of the NDPS Act was sent to the Circle Inspector of Police, Ernakulam Central Police Station. The appellant was appraised of his right to have the presence of a Gazetted Officer or a Magistrate for a search of his body. The appellant stated that he does not require the presence of a Magistrate or a Gazetted Officer. The consent was given in writing in English. On search, the appellant was found in possession of 23 ampules of narcotic drugs and 14 injection needles and five syringes., The Public Prosecutor pointed out that the Head Constable who accompanied Police Witness 2 was examined as Police Witness 1. Police Witness 1 supported the prosecution and gave evidence in tune with Police Witness 2. The prosecution has adduced cogent evidence to prove the charge against the appellant beyond reasonable doubt. Police Witnesses 1 and 2 have deposed about the seizure of the contraband from the appellant, his arrest and registration of the case. Police Witness 3 has also given evidence regarding investigation of the case. All the mandatory provisions of the Act are complied with and there is no reason to disbelieve the evidence of prosecution witnesses. The Additional Sessions Judge therefore rightly convicted the appellant, contended the Public Prosecutor., As regards the issue of body search, the Public Prosecutor relied on the judgment of this Court in Susheel Sarkar v. State of Kerala [2022 Kerala High Court 5415] wherein this Court held that when a person chooses not to exercise the right and permits the police officer to have his body searched by him, then the procedure contemplated under Section 50 of the NDPS Act is not at all necessary. In cases of seizure of narcotic drugs, merely because independent witnesses were not examined on search and seizure, the evidence of official witnesses cannot be discarded. If the evidence of the official witness does not contain any discrepancy which makes them untrustworthy, it can be relied upon even in the absence of any independent evidence., The offence alleged against the appellant is amply proved by the evidence of Police Witnesses 1 to 3. Police Witnesses 1 to 3 had no pre‑acquaintance with the appellant. Therefore, there is no question of bias in the investigation. The appellant has committed a gross crime against society. In the circumstances, the appeal preferred by the appellant is liable to be dismissed, contended the Public Prosecutor., I have heard the learned counsel for the appellant and the learned Public Prosecutor representing the respondent., The appellant stands convicted for an offence punishable under Section 22(c) of the NDPS Act. The facts constituting the offence alleged against the appellant are that on 09.11.2006 at 3.20 pm, the appellant was found in possession of narcotic drugs/psychotropic substances in contravention of the provisions of the NDPS Act. It is alleged that on 09.11.2006 while Police Witness 2, Sub‑Inspector of Police, was conducting law and order patrolling, he got information that a person with a handbag was standing near the CIFNET near the Foreshore Road with narcotic drugs for sale. Police Witness 2 recorded the information and a copy was sent to the immediate official superior. Exhibit P3 is the Section 42 report., When Police Witness 2 reached the spot with the police party, the appellant was standing there with a bag. It is alleged that Police Witness 2 informed the appellant about his right to have the presence of a Gazetted Officer or a Magistrate for a search of his body. The appellant informed Police Witness 2 that he does not require the presence of a Magistrate or Gazetted Officer and that he has no objection to Police Witness 2 conducting the search. The consent of the appellant is alleged to have been given in writing, in English language., Police Witness 2 conducted a search of the body of the appellant. In the handbag found on the body of the appellant, Police Witness 2 is stated to have recovered 23 ampules of narcotic drugs, 14 injection needles and five syringes. The ampules were packed and sealed and marked as S1. The appellant was arrested and a case was registered against him., Police Witness 1, Head Constable who accompanied Police Witness 2 at the time of search and seizure, and Police Witness 3, Circle Inspector who conducted the investigation, supported the prosecution case and gave evidence in tune with the evidence of Police Witness 2., The appellant denied the prosecution case and stated that he hails from Tamil Nadu and came to Ernakulam in search of a job. The police have taken the appellant illegally into custody from a public road near St. Alberts College and a false case is registered against him., From the evidence, it is seen that the incident took place on a public road near CIFNET, which is a busy area in the city. However, the prosecution could not produce any independent witness to prove the incident. The road from which the appellant was arrested is a busy area with a number of Government/Semi‑Government offices in the vicinity. Still, none from those offices were cited as witnesses. True, the incident can be proved even without examining any independent witnesses and can be proved on the basis of evidence given by the official witnesses. But, in this case, there are a number of suspicious circumstances which would question the credibility of the prosecution case., The prosecution claimed that the appellant was informed in writing of his right to have the presence of a Gazetted Officer or Magistrate. It is alleged that the appellant gave his consent in writing to conduct the search without the presence of a Gazetted Officer or Magistrate. However, the intimation given to or the consent given by the appellant are not produced. The appellant is stated to have knowledge only of Tamil language. The information given to the appellant under Section 50 was in English. It is alleged that the appellant gave a reply also in English. However, neither the communication stated to have been given by Police Witness 2 under Section 50 of the NDPS Act nor the reply alleged to have been given by the appellant have been produced before the Sessions Court., The Public Prosecutor relied on the judgment of the Apex Court in Kallu Khan v. State of Rajasthan [2022 Supreme Court 50] and contended that when no recovery of contraband was made from the person of the accused, compliance of Section 50 cannot be attracted. But the case dealt with by the Apex Court was one where the contraband article was seized from a motorcycle at a public place. In this case, the contraband article was received from a bag on the person of the appellant. Therefore, the judgment in Kallu Khan will not be of any help to the prosecution. For the same reason, the judgment in State of Punjab v. Baljinder Singh and another [(2019) 10 SCC 473] cannot be relied on to support the prosecution case., Section 50 of the NDPS Act, 1985 is as follows: (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub‑section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone except a female. (5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under subsection (5), the officer shall record the reasons for such belief which necessitated such search and within seventy‑two hours send a copy thereof to his immediate official superior., A Constitution Bench of the Honourable Apex Court in the judgment in State of Punjab v. Baldev Singh [1999 Kerala High Court 707] considered the scope of Section 50 of the NDPS Act and held that when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Section 50(1) of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. The failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to the accused. The Honourable Apex Court held that failure to conduct search before a Gazetted Officer or Magistrate may not vitiate the trial, but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused where the conviction has been recorded only on the basis of possession of the illicit article recovered from his person during a search conducted in violation of the provisions of Section 50 of the Act., The Public Prosecutor relied on the judgment of a learned Single Judge of this Court in Susheel Sarkar (supra) to urge that where the appellant had chosen not to exercise the right under Section 50, the procedure contemplated under Section 50 was not necessary. In the case of the appellant herein, there is nothing on record to prove beyond reasonable doubt that the appellant chose not to exercise his right under Section 50. In Ranjan Kumar Chadha (supra), the Honourable Apex Court has held that when the suspect dispenses with the option to search before a Gazetted Officer/Magistrate, the suspect should be asked to give it in writing and that the matter shall not rest with just an oral statement of the suspect., Indeed, there is need to protect society from criminals pedalling in narcotic drugs. The societal interest and safety will suffer if persons who commit crime are let off because the evidence against them is treated as if it does not exist. The Apex Court dealing with prosecution of NDPS cases has held that in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations. The Apex Court has held that an accused is entitled to a fair trial and a conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial would render the trial unfair., In the present case, the sole allegation against the appellant is that he was found in possession of illicit narcotic drugs/psychotropic substances. An illicit article seized from the person of an accused during a search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband by the accused, though any other material recovered during that search may be relied upon by the prosecution in other proceedings against the accused., The Public Prosecutor would submit that the chain of events that led to the search and seizure of narcotic drugs from the appellant have been well established by the evidence adduced by Police Witnesses 1 to 3. The credibility of witnesses is unquestionable. The facts deposed by them before the court are beyond doubt or dispute. The defence has not been successful in discrediting the evidence adduced by Police Witnesses 1 to 3. Therefore, it would be a travesty of justice if the appellant is let off for the omission of the prosecution in producing the communication mandated under Section 50 of the Act, especially when the Act does not require a written communication to be given to the accused., I find that in this case, it is not a question of communication of the right of the appellant to be searched in the presence of a Gazetted Officer or a Magistrate. The question is whether the evidence adduced by the prosecution in this regard can be relied on to convict the appellant and take from him his personal liberty by imposing a jail sentence of ten years. When the consequence of the prosecution is serious, the prosecution should stick to the letter of the law. It is the version of the prosecution that a written communication regarding the information given to the appellant under Section 50 of the NDPS Act was made. The prosecution further stated that the appellant had given his consent to dispense with the presence of a Gazetted Officer/Magistrate during search, that also in writing. If such communications in writing existed, the prosecution ought to have produced the same before the court. The non‑production of the documents gives rise to serious doubt as regards compliance of law, to an extent that the search and seizure get nullified. In the absence of a search and seizure in compliance with the provisions of Section 50, the entire prosecution story against the appellant would crumble., In the aforesaid facts of the case, I find that failure of the prosecution to produce Section 50 communication/information before the court has seriously prejudiced the appellant and conviction of the appellant cannot be justified under the circumstances. Therefore, the Criminal Appeal is allowed and the conviction and sentence passed against the appellant in Sessions Case No.959/2017 of the Sessions Court, Ernakulam are set aside.
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Case: Bail No. 5974 of 2020. Applicant: Anil Kumar Sharma. Opposite Party: Enforcement Directorate, Lucknow Zone, Lucknow. Counsel for Applicant: Pranshu Agrawal, Manoj Singh, Mohd. Yasir Abbasi. Counsel for Opposite Party: Shiv P. Shukla. Hon'ble Dinesh Kumar Singh, Judge., The bail application was filed under Section 439 of the Code of Criminal Procedure read with Section 45 of the Prevention of Money Laundering Act, 2002 by the accused‑applicant, who is Managing Director of Amrapali Group of Companies (fourteen in numbers), after his application for bail was rejected by the Special Judge, Sessions Court, PMLA, Lucknow vide order dated 15 July 2020 passed in Bail Application No. 2458 of 2020 filed in Enforcement Directorate Case No. ECIR/06/PMLA/LKZO/2019 under Section 3/4 of the PMLA., Learned Special Judge, considering the judgment and order dated 23 July 2019 passed by the Supreme Court of India in Writ Petition (Civil) No. 940 of 2017, and also the nature of accusation, gravity of offence, punishment provided for the offence, and the fact that the investigation has been going on qua other accused and the matter involves a huge amount of Rs.6,000 Crores, rejected the bail application., This case reveals how a real estate company in active connivance and collaboration with financial institutions, government authorities and functionaries can defraud, cheat, dishonestly misappropriate and divert funds to the extent of thousand crores collected from home buyers, shattering their dream of owning a house and leaving them high and dry., Amrapali Group of Companies entered into real estate business and construction of houses, flats and other projects such as commercial spaces. They offered to construct approximately 4,200 flats/houses in various projects. In their brochure they assured delivery of possession within thirty‑six months with world‑class amenities in Noida and Greater Noida. Allotment‑cum‑Flat Buyers Agreements were entered into between the builder and the buyers, who had made payment of 40‑100 % of the total consideration of their flats/houses., The dream of the buyers was shattered when M/s Amrapali Silicon City Private Limited and M/s Amrapali Centurian Park Private Limited were found in serious breach of their obligation to deliver the flats within the stipulated period of 36 months. They defaulted in making payments to the Noida or Greater Noida authorities and also in repaying loans taken from financial institutions., Several buyers approached the National Consumer Dispute Redressal Forum by filing consumer complaints against the builder. Bank of Baroda, a financial institution that lent money to the Amrapali Group of Companies, filed Company Petition No. (IB)-121(PB)/2017 before the National Company Law Tribunal under Section 7 of the Insolvency and Bankruptcy Code, 2016 to trigger the Corporate Insolvency Resolution Process against M/s Amrapali Silicon City Private Limited. The NCLT appointed an Interim Resolution Professional, declared a moratorium restricting the institution of any suits, execution of any judgment, decree or order, and the transfer, encumbrance or alienation of any assets of the corporate debtor. Proceedings were also instituted under the Securitisation and Reconstruction of Financial Assets and Enforcement and Security Interest Act, 2002. The order of the NCLT directly affected the home buyers in Amrapali projects. All these companies are run by almost the same set of directors, including the accused‑applicant and Mr. Shiv Priya. The accused‑applicant was Managing Director of most of the companies and is the kingpin in defrauding, cheating, misappropriating and diverting funds into bogus and sham companies, including foreign entities., Some flat buyers, having no other remedy, approached the Supreme Court of India under Article 32 of the Constitution of India, leading petition being Writ Petition (Civil) No. 940 of 2017: Bikram Chatterjee vs Union of India and others. Thousands of intervention applications were also filed before the Supreme Court., The Supreme Court, looking at the plight of the home buyers, entertained the petitions filed under Article 32 as a matter of huge public interest. It directed the builder to deposit 10 % of the dues to the Noida authorities on 22 November 2017 and asked the builders about the date of possession where occupancy certificate and no‑objection certificate had been granted. The Court also granted liberty to the flat owners to complete the finishing work. The amount was not deposited and no promise was extracted from the builders., To protect the interest of the home buyers, the Supreme Court directed the Amrapali Group of Companies to complete the projects and the finishing work as assured. By order dated 15 March 2018 the Court directed the group and the flat buyers to submit joint proposals providing project‑wise information of the stages of various buildings. On 27 March 2018 the Amrapali Group, controlled by the accused‑applicant and other directors, stated that they were ready to undertake completion of the projects. Consequently, the Interim Resolution Professional was directed not to proceed further. However, despite the promise, the group did not proceed with any work. The Supreme Court noticed from various documents that money had been transferred to certain other companies. The promoters admitted before the Supreme Court that they had diverted money of the flat buyers to the extent of Rs.2,765 Crores out of six projects into two other projects. The Court directed the promoters to deposit the said amount in the Court and also to deposit Rs.250 Crores in an escrow account to be opened in UCO Bank, Supreme Court Branch. This order was not complied with; the promoters claimed they were unable to deposit the amounts. The Court then directed the freezing of the individual bank accounts of the directors of all forty companies and the attachment of their properties., By order dated 18 August 2018 the Supreme Court directed the directors of various companies, including the present accused‑applicant, to file affidavits regarding movable and immovable properties and their valuation. The statutory auditor, co‑accused Anil Mittal, was directed to conduct the audit. Later, on 6 September 2018, the Court appointed individual auditors Mr. Ravi Bhatia of Bhatia & Co. and Mr. Pawan Kumar Aggarwal of Sharp and Tannan Company to conduct a forensic audit of the Amrapali Group of Companies from 2008 to date. Co‑accused Anil Mittal was directed to hand over original documents, which he failed to do. The Court directed the police to seize the records and hand them over to the forensic auditors. The forensic auditors reported that more than 26 companies had received diverted money and these bogus/sham companies were created by the Amrapali Group. In its order dated 13 November 2018, the Supreme Court observed that money of the Greater Noida and Noida authorities had not been paid, buyers had been duped, other financial institutions had not been paid, construction was incomplete, and the diverted money had been used to create various companies and assets in connivance with the CFO and statutory auditors. The Court restrained any further monetary transactions or alienation of property by the related group of companies, declaring such transfers illegal, void and inoperative., The forensic auditors found that Rs.140 Crores had been parked with M/s J.P. Morgan. The shares of Amrapali Zodiac were purchased for Rs.140 Crores by two sham companies, M/s Neelkanth and M/s Rudraksha, whose directors were Chandan Kumar, a peon in the office of co‑accused Mr. Anil Mittal, and his nephew Vivek Mittal, who earned a monthly income of Rs.15,000 only. The Court observed that the valuation report dated 23 October 2013 prepared by Mr. Sudit K. Parikh & Co. needed clarification and directed Mr. Parikh to appear before the Supreme Court. It was pointed out that the directors of the sham companies did not have the capacity to pay Rs.140 Crores to J.P. Morgan, indicating serious fraud. The Court directed Mr. Anil Kumar Sharma and the directors of Amrapali Zodiac to file personal affidavits explaining the source of the money paid to J.P. Morgan and the purpose of the companies., The summary of the forensic audit, noted by the Supreme Court in paragraph 61 of its order dated 23 July 2019 in Writ Petition (Civil) No. 940 of 2017, demonstrated the modus operandi of the accused and co‑accused. Funds of the home buyers were diverted to the tune of Rs.5,619.47 Crores to other bogus and sham companies through methods such as payment of professional fees to directors, bogus billing, undervaluation of flats, brokerage paid for unsold flats and inter‑company deposits. The Court noted violations of statutory prescriptions including the Real Estate (Regulation and Development) Act, the Foreign Exchange Management Act, the Uttar Pradesh Apartments (Promotion of Construction, Ownership and Maintenance) Act, 2010, as well as criminal liability under the Indian Penal Code and the Prevention of Money Laundering Act. To secure the interest of the buyers, the Court appointed the National Buildings Construction Corporation to complete the projects. The accused‑applicant disclosed details of companies to which funds of Rs.2,996 Crores had been transferred. The Court directed the Enforcement Directorate to investigate the money‑laundering aspects and submit quarterly reports to the Supreme Court. The Court also issued extensive directions, including cancellation of the registration of the Amrapali Group under RERA, cancellation of lease deeds granted by Noida and Greater Noida authorities, appointment of a court receiver, and orders for the NBCC to complete the projects with an 8 % commission, among others., In view of the findings of the forensic auditors and the prima facie violations of FEMA and other money‑laundering provisions, the Supreme Court directed the Enforcement Directorate and other concerned authorities to investigate, fix liability on responsible persons and submit progress reports to the Court. The police were also directed to submit a report of their investigation., It is evident that but for the intervention of the Supreme Court of India, the thousands of flat buyers would have been left high and dry by the promoters of the Amrapali Group, whose Managing Director throughout has been the present accused‑applicant and the king‑pin of the fraud, cheating, diversion of funds, money‑laundering and violation of FEMA. The Supreme Court, through its efforts, has protected the interest of the flat buyers and directed various investigating agencies and statutory authorities to take necessary action against the accused‑applicant and others., Pursuant to the directions of the Supreme Court of India, the Enforcement Directorate undertook investigation of offences under the Prevention of Money Laundering Act. A complaint under Section 3/4 of the PMLA was filed before the Special Judge, PMLA/Sessions Judge, Lucknow. The investigation to trace the money trail of the accused‑applicant and others is ongoing, and details of money‑laundering and acquisition of properties from proceeds of crime have been included in the complaint., Heard for the accused‑applicant were Sri Manoj Singh, Mr. Pranshu Agrawal and Mohd. Yasir Abbasi, learned counsel; for the Enforcement Directorate was Sri Shiv P. Shukla, learned counsel., The facts demonstrate that without the Supreme Court’s intervention and its strenuous efforts to protect innocent home buyers, the fraud perpetrated by the accused‑applicant and co‑accused could not have been uncovered. The forensic auditors appointed by the Supreme Court meticulously flagged the creation of bogus and sham companies, diversion of flat‑buyers’ money and creation of assets., The Prevention of Money Laundering Act is a special statute enacted by Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure clearly states that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law; the provisions of the special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict., Economic crimes of such scale are carefully planned and executed. It is well settled that economic offences constitute a class apart and require a different approach in bail matters. While granting bail, the court must consider the nature of the accusations, the magnitude and gravity of the offence, and the nature of the evidence., The Supreme Court in Y.S. Jagan Mohan Reddy vs CBI (2013) 7 SCC 439 held that economic offences involving deep‑rooted conspiracies and huge loss of public funds must be viewed seriously as grave offences affecting the economy of the country and posing a serious threat to its financial health., The Supreme Court in Nimmagadda Prasad vs CBI (2013) 7 SCC 466 observed that the alarming rise in white‑collar crimes affects the fabric of the country’s economic structure and that economic offences have serious repercussions on national development. The Court emphasized that while granting bail, the court must keep in mind the nature of the accusations, the evidence, the severity of the punishment, the character of the accused, the possibility of securing the presence of the accused at trial, the risk of tampering with witnesses, and the larger public interest., In State of Bihar vs Amit Kumar (2017) 13 SCC 751, the Court held that stringent parameters must be applied while granting bail in socio‑economic offences, noting that the seriousness of the offence cannot be overlooked even if the accused has been in custody for a long time., The view was reiterated in Rohit Tandon vs Directorate of Enforcement (2018) 11 SCC 46, where the Court stated that economic offences involving deep‑rooted conspiracies and huge loss of public funds must be viewed seriously as grave offences affecting the economy and that the burden of proof that the monies are not proceeds of crime shifts to the accused under Section 24 of the Prevention of Money Laundering Act.
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It has been expounded that the Supreme Court of India at the stage of considering the application for grant of bail shall consider the question from the angle as to whether the accused was possessed of the requisite mens rea. The Supreme Court of India is not required to record a positive finding that the accused had not committed an offence under the Act. The Supreme Court of India ought to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. The duty of the Supreme Court of India at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the Supreme Court of India is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail., The Supreme Court of India in its judgment in Serious Fraud Investigation Office versus Nitin Johri and another, (2019) 9 Supreme Court Cases 165, while considering the factors to be taken into account while considering bail involving serious economic offences in paragraphs 24 to 27 has held as follows:, At this juncture, it must be noted that even as per Section 212(7) of the Companies Act, the limitation under Section 212(6) with respect to grant of bail is in addition to those already provided in the Code of Criminal Procedure. Thus, it is necessary to refer to the principles governing the grant of bail under Section 439 of the Code of Criminal Procedure. Specifically, heed must be paid to the stringent view taken by this Court towards grant of bail with respect of economic offences. In this regard, it is pertinent to refer to the following observations of this Court in Y.S. Jagan Mohan Reddy versus Central Bureau of Investigation, (2013) 7 Supreme Court Cases 439 : (2013) 3 Supreme Court Cases (Criminal) 552 (SCC page 449, paragraphs 34‑35): 'Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep‑rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.' 'While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and other similar considerations.' This Court has adopted this position in several decisions, including Gautam Kundu versus Directorate of Enforcement, (2015) 16 Supreme Court Cases 1 : (2016) 3 Supreme Court Cases (Criminal) 603 and State of Bihar versus Amit Kumar, (2017) 13 Supreme Court Cases 751 : (2017) 4 Supreme Court Cases (Criminal) 771. Thus, it is evident that the above factors must be taken into account while determining whether bail should be granted in cases involving grave economic offences., As already discussed supra, it is apparent that the Special Court, while considering the bail applications filed by Respondent 1 both prior and subsequent to the filing of the investigation report and complaint, has attempted to account not only for the conditions laid down in Section 212(6) of the Companies Act, but also of the general principles governing the grant of bail., In our considered opinion, the High Court in the impugned order has failed to apply even these general principles. The High Court, after referring to certain portions of the complaint to ascertain the alleged role of Respondent 1, came to the conclusion that the role attributed to him was merely that of colluding with the co‑accused promoters in the commission of the offence in question. The Supreme Court of India referred to the principles governing the grant of bail as laid down by the Supreme Court of India in Ranjitsing Brahmajeetsing Sharma versus State of Maharashtra, (2005) 5 Supreme Court Cases 294 : 2005 Supreme Court Cases (Criminal) 1057, which discusses the effect of the twin mandatory conditions pertaining to the grant of bail for offences under the Maharashtra Control of Organised Crime Act, 1999 as laid down in Section 21(4) thereof, similar to the conditions embodied in Section 212(6)(ii) of the Companies Act. However, the High Court went on to grant bail to Respondent 1 by observing that bail was justified on the “broad probabilities” of the case., In our considered opinion, this vague observation demonstrates non‑application of mind on the part of the Supreme Court of India even under Section 439 of the Code of Criminal Procedure, even if we keep aside the question of satisfaction of the mandatory requirements under Section 212(6)(ii) of the Companies Act., Section 45 of the Prevention of Money Laundering Act starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the Prevention of Money Laundering Act will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the Prevention of Money Laundering Act imposes the following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule to the Prevention of Money Laundering Act: (i) that the Public Prosecutor must be given an opportunity to oppose the application for bail; and (ii) that the Special Court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail., The Supreme Court of India in the case of Gautam Kundu versus Directorate of Enforcement (Prevention of Money Laundering Act), Government of India, (2015) 16 Supreme Court Cases 1 in paragraphs 28, 29 and 30 while dealing with the provisions of bail under Section 45 of the Prevention of Money Laundering Act held as follows:, Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of the Prevention of Money Laundering Act are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that the Prevention of Money Laundering Act deals with the offence of money laundering and Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. The Prevention of Money Laundering Act is a special statute enacted by Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. Section 45 of the Prevention of Money Laundering Act starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the Prevention of Money Laundering Act will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the Prevention of Money Laundering Act imposes the following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule to the Prevention of Money Laundering Act: (i) that the Public Prosecutor must be given an opportunity to oppose the application for bail; and (ii) that the Special Court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. The conditions specified under Section 45 of the Prevention of Money Laundering Act are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of the Prevention of Money Laundering Act. Section 65 requires that the provisions of the Code of Criminal Procedure shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of the Prevention of Money Laundering Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. The Prevention of Money Laundering Act has an overriding effect and the provisions of the Code of Criminal Procedure would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of the Prevention of Money Laundering Act will have to be complied with even in respect of an application for bail made under Section 439 of the Code of Criminal Procedure. That, coupled with the provisions of Section 24, provides that unless the contrary is proved, the authority or the Special Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved lies on the appellant., The Supreme Court of India in the case of Nikesh Tarachand Shah versus Union of India, (2018) 11 Supreme Court Cases 1 struck down two conditions under Section 45 of the Prevention of Money Laundering Act as unconstitutional. Subsequently, Section 45 was amended by Amendment Act 13 of 2018. The phrase ‘imprisonment for a term of imprisonment of more than three years under Part A of the Schedule’ was substituted with ‘accused of an offence under this Act’. Section 45 prior to the amendment read: ‘Offences to be cognizable and non‑bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless…’. After the amendment, Section 45 reads: ‘Offences to be cognizable and non‑bailable. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of an offence under this Act shall be released on bail or on his own bond unless (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Special 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. 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 that a person who is under the age of sixteen years, or is a woman, or is sick or infirm, or is accused either on his own or along with other co‑accused of money laundering a sum of less than one crore rupees may be released on bail if the Special Court so directs.’, The object of the Prevention of Money Laundering Act is to prevent money laundering and to provide for confiscation of property derived from, or involved in, money laundering. Section 44 of the Prevention of Money Laundering Act confers jurisdiction on the Special Court to deal with the offences under the Prevention of Money Laundering Act. Section 45 of the Prevention of Money Laundering Act makes the offence of money laundering cognizable and non‑bailable notwithstanding anything contained in the Code of Criminal Procedure, 1973. Money laundering is a serious economic offence and a serious threat to the national economy and national interest, and these offences are committed with cold calculation with the motive of personal gain regardless of the consequences on society., Considering the order dated 23 July 2019 passed by the Supreme Court of India in Writ Petition (C) No. 940 of 2017, in which involvement of the accused in the offence has been meticulously flagged, his conduct before the Supreme Court of India and the fact that the investigation is still ongoing and the money trail has to be completely unearthed, it would not be appropriate to enlarge the accused on bail. Therefore, the plea for bail is refused and the bail application is rejected.
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Shri Binoy Viswam: Will the Minister of Law and Justice be pleased to state whether the Ministry is involved with the Criminal Law Reforms Committee set up to review changes to the Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act, if not the reasons for non‑involvement of the Ministry in this project, if so the total number of recommendations received by the committee, the expected time to release its report, either interim or final, the total budget allocated to the committee and the Government order by which the committee has been established, the details thereof?, The Ministry of Law and Justice examines all legislative proposals from legal and drafting angle. A Committee under the Chairpersonship of the Vice Chancellor, National Law University, Delhi and four other members was constituted on 02 March 2020 by the Ministry of Home Affairs to suggest reforms in the criminal laws of the country. A sum of Rupees Forty Five Lakhs Forty Thousand only (Rs. 45,40,000) was allocated to the National Law University to meet expenditure on honorarium, consultation fee, etc. The Committee invited suggestions through a questionnaire based on secondary research and inputs from experts uploaded on its website, which received responses from various organisations, research centres, academics, lawyers and civil societies from across the country. After extensive stakeholders consultation and research the Committee submitted its recommendations on 27 February 2022 on the three criminal laws, namely, the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872. The Committee made recommendations on various sections of the Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act. The Department‑related Parliamentary Standing Committee on Home Affairs, in its 146th Report, recommended a comprehensive review of the criminal justice system of the country. Earlier the Parliamentary Standing Committee, in its 111th and 128th Reports, had also stressed the need to reform and rationalise the criminal law of the country by introducing comprehensive legislation in Parliament rather than piece‑meal amendments in the respective Acts. With a view to make comprehensive changes in the criminal laws of the country to provide affordable and speedy justice to all, create a people‑centric legal structure, the Government has initiated the process for comprehensive amendments to the Indian Penal Code, the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 in consultation with all stakeholders. The Ministry of Home Affairs also sought suggestions from Governors, Chief Ministers of States, Lieutenant Governors and Administrators of Union territories, Hon'ble Chief Justice of India, Hon'ble Chief Justices of various High Courts, Bar Council of India, Bar Councils of various States, various universities and law institutes and all Members of Parliament regarding comprehensive amendments in criminal laws. The order by which the Committee was constituted is placed at Annexure‑I.
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Mr. Tanveer Ahmad Mir, Advocate, appeared on behalf of the petitioners along with Mr. Arfat Rashid, Advocate. Mr. T. M. Shamsi, Deputy Superintendent of Police (General Investigation), appeared with Ms. Zeenaz Akhter, Advocate. The matters are CRM(M) No. 235/2023 in conjunction with CRM(M) No. 308/2023 and CRM(M) No. 309/2023., The reply filed on behalf of the respondent Central Bureau of Investigation is taken on record. Further pleadings in the case shall be completed by the parties by the next date of hearing, listed for 23 February 2024. Any interim direction, if any, shall continue until the next date of hearing before the Bench of the Special Judge, Anti‑Corruption, Srinagar., By this common order, the two petitions, one filed by Raj Singh Gehlot and another filed by Aman Gehlot, challenging the order dated 19 June 2023 passed by the learned Additional Special Judge, Anti‑Corruption, Srinagar, are proposed to be disposed of. The applications filed by the petitioners seeking release of their passports have been dismissed., It appears that FIR No. 15/2019 for offences under Sections 120‑B and 420 of the Ranbir Penal Code and Sections 5(1)(c) and 5(1)(d) read with Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act was registered by respondent No. 1, the Anti‑Corruption Bureau, Central Kashmir. During the investigation conducted by respondent No. 1, allegations of criminal conspiracy, criminal breach of trust, cheating and criminal misconduct by public servants were established, and it was found that an amount of Rs 35 crores out of a loan amount of Rs 100 crores was misappropriated by the accused, including petitioner Raj Singh Gehlot, Director of M/s APHL, in connivance with other accused persons., After conducting a partial investigation of the case relating to the disbursal of Rs 35 crores out of the first‑term loan of Rs 100 crores, respondent No. 1 filed a charge sheet for offences under Section 120‑B, Section 409, Section 420 of the Ranbir Penal Code and Sections 5(1)(c) and 5(1)(d) read with Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act against petitioner Raj Singh Gehlot and co‑accused Mohan Singh, Ms. Sheela Gehlot, Ms. Madhu Bakshi, M/s Aman Hospitality Pvt. Ltd. (through its Director Raj Singh Gehlot), M/s Ambience Pvt. Ltd. (through its promoter Director Mohan Singh), M/s NGR Consultant Pvt. Ltd. (through its promoter Director Raj Singh Gehlot), M/s Raj Commercial & Agencies (through its proprietor Raj Singh Gehlot), Rakesh Kumar Kharyal, then Branch Head of J&K Bank Ltd., Ansal Plaza Branch, New Delhi, and Kuldeep Kumar Gupta, then Loan Manager of J&K Bank Ltd., Ansal Plaza Branch, New Delhi. The charge sheet was laid before the Court of Special Judge, Anti‑Corruption, Srinagar. Further investigation of the case was transferred to the Central Bureau of Investigation., Accordingly, case No. RCBD12021E004 dated 2 September 2021 for offences under Section 120‑B of the Ranbir Penal Code and Section 5(1)(d) read with Section 5(2) of the Jammu and Kashmir Prevention of Corruption Act was registered with the Central Bureau of Investigation, Banking Securities Fraud Branch, New Delhi, and the investigation is ongoing., During the investigation, respondent No. 1 conducted a search at the residence of petitioner Raj Singh Gehlot on 26 July 2019 and seized the passports of both petitioners. The passport of petitioner Raj Singh Gehlot is stated to have expired on 18 May 2021. After the transfer of investigation to respondent No. 2, the Central Bureau of Investigation, all documents including the seized passports were handed over to the CBI. According to the CBI, a look‑out circular has also been issued against petitioner Raj Singh Gehlot., I have heard learned counsel for the parties and perused the record of the case. The petitioners had approached the Court of the learned Additional Special Judge, Anti‑Corruption, Srinagar, for release of the passports, but that Court refused to grant the application on the ground that the proceedings in the case have been stayed by this Court in connected petitions filed under Section 482 of the Criminal Procedure Code., So far as the seizure of passports by the investigating agency is concerned, it is admitted that the seizure was not made as a condition for grant of bail to these petitioners. In fact, petitioner Aman Gehlot is not even an accused in the challan pending before the trial court or in the investigation conducted so far. The Supreme Court of India, in Suresh Nanda v. Central Bureau of Investigation, (2008) 3 SCC 674, held that even if seizure of a passport by the investigating agency while exercising power under Section 102 of the Criminal Procedure Code may be permissible, the agency does not have the power to retain or impound the passport because such power resides only with the Passport Authority under Section 10(3) of the Passports Act. The Court further held that if the police seizes a passport under Section 102 of the Criminal Procedure Code, it must be sent to the Passport Authority with a clear statement that the passport deserves to be impounded for one of the reasons mentioned in Section 10(3) of the Passports Act, after which the Passport Authority decides whether to impound the passport., In the instant case, the investigating agency has not forwarded the passports of the petitioners to the Passport Authority after their seizure for impounding, nor does the agency desire to have the passports impounded. The CBI, in its reply, has fairly submitted that it shall abide by any orders that may be passed by the Court and it has not sought rejection of these applications., In view of the above, both petitions are allowed and respondent No. 2, the Central Bureau of Investigation, is directed to release the passports of petitioners Raj Singh Gehlot and Aman Gehlot after retaining photocopies thereof. Both petitions (CRM(M) No. 308/2023 and CRM(M) No. 309/2023) shall stand disposed of.
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F.A. No. 712 of 2020 was reserved on 17 February 2024 and pronounced on 1 March 2024. The appeal, heard and reserved, was pronounced on the said date by Justice Vinay Saraf. The appellant, the husband, sought a decree of divorce on the grounds of mental cruelty and desertion. He had preferred a petition under Section 13(i‑a) and Section 13(i‑b) of the Hindu Marriage Act, 1955 on 29 August 2018 before the Sixth Joint Civil Judge, Senior Division, Kalyan, District Thane, Maharashtra. The case was transferred by the Supreme Court of India by order dated 13 September 2019 in Transfer Civil No. 813/2019 to the Principal Judge, Family Court, Jabalpur and registered as case No. 1127/2019., The marriage between the parties was solemnised on 9 February 2014 according to Sikh rites at Ulhasnagar, District Thane, Maharashtra. A baby girl was born on 4 December 2014. The parties have been living separately since 8 July 2014 and cohabited for only five months after marriage., The husband pleaded that during the wife’s stay at the matrimonial home she behaved in a disrespectful and disobedient manner, demanded large sums of money for personal expenses without disclosing any need, and was constantly in contact with her parents. He alleged that the wife was arrogant from the beginning, ignored his feelings, and travelled by car repeatedly during pregnancy despite medical advice to rest. On 8 July 2014, with the permission of the husband’s parents, the wife was taken to her parental home with an assurance to return on 23 July 2014, but she never returned and began demanding cash, documents, certificates, gold ornaments and clothes. The wife’s father asked the husband to prepare a consent affidavit for a breakup, but the husband’s family could not understand the reason for such a harsh decision and their pleas to the wife’s father were ignored. The husband claimed he tried his best to save the marriage, but the wife never supported him, filed false cases under the Protection of Women from Domestic Violence Act, 2005 and a false maintenance case, and forced him to file Miscellaneous Petition No. 193/2015 for divorce, which was later transferred by the Supreme Court to the Family Court, Jabalpur. The wife also lodged false reports under Section 498‑A of the Indian Penal Code and Section 420 of the Indian Penal Code at Police Station Gorakhpur, Jabalpur, causing mental cruelty to the husband. When the husband attended hearing dates of the transferred petition in Jabalpur, he was threatened and harassed by goons and, under threat of fresh criminal cases, was compelled to withdraw the petition. The husband further stated that the wife deserted him on 8 July 2014, depriving him of conjugal rights and filing various false and frivolous cases, and that she prevented him from meeting their daughter Saanjh, threatening to trap him in additional false cases. On these grounds, the husband prayed for a decree of dissolution of marriage on the grounds of cruelty and desertion., The wife, in her written statement filed before the Family Court, Jabalpur, stated that at the time of marriage she was only twenty years old, had no opportunity to misbehave with her husband and in‑laws, and denied all allegations of misbehaviour and cruelty. She claimed that the husband and his family misbehaved with her, committed atrocities, and that the complaints lodged by her were not false or frivolous. She asserted that the husband’s family are prominent businesspersons in Mumbai, that after marriage household duties were shifted onto her, that she was not permitted to take medicines prescribed by her doctor, and that her gold ornaments are in the possession of her mother‑in‑law. She alleged that her father advised the husband and his family to treat her kindly, but domestic violence continued and she was harassed for dowry. She further claimed that a bank account was opened in her name, blank‑signed cheques were misused to file false cheque‑bounce complaints against her in Mumbai, and that she never prevented the husband from meeting the minor child, although the husband made no sincere efforts. She maintained that the marriage could have been saved, but the husband’s parents were dowry‑monger and wanted a remarriage of their son, and therefore she prayed for dismissal of the divorce petition., The Family Court, after considering oral and documentary evidence, delivered a judgment dated 13 October 2020 dismissing the husband’s divorce petition on the ground that the allegations of cruelty and desertion could not be proved. The judgment is challenged in the present appeal under Section 19 of the Family Courts Act, 1985 read with Section 28 of the Hindu Marriage Act, 1955. Mr. Sankalp Kochar appeared as counsel for the husband and Mr. Rajesh Maindiretta appeared as counsel for the wife. With the consent of the parties, the appeal was heard finally., The wife’s counsel raised the question of maintainability, contending that the earlier divorce petition filed by the husband in the Civil Judge, Senior Division, Kalyan (registered as Miscellaneous Petition No. 193/2015) was withdrawn without liberty and that the present petition (registered as Miscellaneous Petition No. 1185/2018) was therefore barred under Order XXIII Rule 1(4) of the Code of Civil Procedure. The Family Court overruled this objection on 23 November 2019, holding that the two petitions were not identical and were filed on different causes of action. The wife argued that the interlocutory order of 23 November 2019 was not challenged in any appeal or revision, and therefore the maintainability objection could be raised in the present appeal. She relied on the Supreme Court decision in Hulas Rai Baij Nath v. Firm K.B. Bass and Company (1967 SCC Online SC 61) and on a decision of the Andhra Pradesh High Court (2003 SCC Online A.P. 631). The husband’s counsel countered that the earlier petition was filed on a different cause of action and that the present petition introduced the ground of desertion, which was not raised earlier; consequently, the provisions of Order XXIII Rule 1(4) of the Code of Civil Procedure were not applicable., The wife’s counsel also raised the issue of non‑compliance of maintenance orders. The husband had been directed by a Judicial Magistrate, First Class, Jabalpur, on 4 March 2016 to pay maintenance of Rs 15,000 per month to the wife and Rs 5,000 per month to the daughter under the Protection of Women from Domestic Violence Act, 2005, and by the Family Court on 4 November 2016 to pay maintenance of Rs 40,000 per month to the wife and daughter under Section 125 of the Criminal Procedure Code. The wife claimed that the husband had deliberately failed to comply, resulting in arrears of Rs 14,40,000. The wife relied on Supreme Court judgments in Rajnesh v. Neha & Another (2021) 2 SCC 324, Smt. Sangeeta Grover v. Ranjan Grover (order dated 6 September 2022) and Dwarika Prasad Patel v. Smt. Marri (order dated 7 February 2023), asserting that a husband who fails to comply with interim maintenance may have his right of defence closed. The husband’s counsel submitted that the court had issued directions on 13 October 2023 for payment of arrears, and that the husband had paid maintenance up to February 2024, and that no interim alimony order was pending in the present appeal; therefore, the appeal could not be dismissed on the ground of non‑payment., The husband submitted that after marriage the wife’s behaviour was not cordial; she habitually demanded excessive amounts for personal expenses and, contrary to medical advice, travelled repeatedly during pregnancy. On 8 July 2014, in a pre‑planned manner, she left the matrimonial home with her parents, jewellery, clothes and documents, went to Jabalpur and demanded money, threatening termination of the pregnancy and false criminal cases if her demands were not met. She subsequently lodged false complaints under the Protection of Women from Domestic Violence Act, 2005 on 27 September 2014 against the husband, his father‑in‑law, mother‑in‑law, brothers‑in‑law and uncles‑in‑law. The magistrate dismissed the complaints against the brothers‑in‑law and uncles‑in‑law, but proceedings remain pending against the husband and his parents. The husband argued that filing false complaints constitutes cruelty. He further detailed that the wife lodged a false FIR under Section 498‑A of the Indian Penal Code on 21 April 2015, alleging dowry harassment, and another FIR under Sections 294 and 506 of the Indian Penal Code on 18 December 2017, alleging threats and abusive language. A further FIR under Sections 420 and 34 of the Indian Penal Code was filed on 9 February 2018 against the husband’s parents and relatives, alleging cheating in a share allotment scheme of Supreme Fabric Private Limited. The husband contended that bank statements show that amounts were transferred from his and his father‑in‑law’s accounts to the wife’s account and then to the company, indicating that the cheating allegation is false. Additional FIRs were lodged on 27 August 2018 against the brothers‑in‑law, alleging forced entry and abusive language; these FIRs were also dismissed. The husband maintained that the series of false FIRs and criminal cases amount to cruelty., The husband filed Civil Suit No. 17/2016 before the Family Court, Jabalpur for custody of the minor daughter. The court directed on 18 May 2017 that the husband be permitted to meet the child, but the wife did not comply. The Family Court, by order dated 11 November 2019, again permitted the husband to meet the daughter; the wife filed an application on 20 November 2019 seeking modification, claiming adverse effect on the child’s mental health. The court recalled its earlier order on 23 November 2019. The husband applied on 28 November 2019 to meet the daughter, which the wife opposed, alleging that the husband had already met the child on that date and was attempting to take custody near Madan Mahal Gurudwara, Jabalpur. The court observed that the wife repeatedly failed to comply with its orders, including an order dated 18 May 2017 to present the child in court once a month. The child appeared before the court on 16 January 2020, 29 February 2020 and other dates, but often expressed discomfort. The husband alleged that the wife poisoned the child’s mind against him and used social media to defame the husband’s family., The husband asserted that the wife uploaded six defamatory videos on social media platforms, five of which blurred her face, but one video clearly showed her face and voice matching the others, demonstrating an attempt to tarnish the husband’s reputation. He argued that this conduct caused mental agony and amounted to cruelty. He further submitted that both parties have leveled serious allegations against each other, have been living separately for more than nine years, and that numerous criminal cases have been lodged, making reconciliation impossible. He prayed for a decree of divorce. The Supreme Court, in V. E. Maya v. K. S. Vetrivel (SLP (Civil) No. 11761‑11762/2022, decided on 11 September 2023), held that a decree cannot be granted solely on the ground of irretrievable breakdown of marriage without a finding of cruelty. Accordingly, the present court cannot grant divorce on that ground alone., The husband relied on several precedents. In Ravi Kumar v. Julmidevi, (2010) 4 SCC 476, the Supreme Court observed that cruelty in matrimonial relations may take many forms, including silence, attitude, or behaviour that makes cohabitation impossible. In Rajesh Bhoyale v. Mahadevi, 2022 SCC OnLine MP 553, the Court noted prolonged domestic incompatibility and intimidation as grounds for divorce. In Samar Ghosh v. Jaya Ghosh, (2010) 4 SCC 339, the Court enumerated illustrative instances of mental cruelty, such as sustained abusive treatment, denial of intercourse without valid reason, and long periods of separation. In Vinay v. Durga, (2017) 10009 SCC Online Bom, the Court held that filing false complaints under Section 498‑A of the Indian Penal Code constitutes cruelty. In Nitin Ramesh Dhiwar v. Roopali Nitin Dhiwar, 2012 SCC OnLine Bom 1200, the Court affirmed that a false criminal complaint amounts to cruelty within the meaning of Section 13(i)(a) of the Hindu Marriage Act.
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Division Bench of the Supreme Court of India had taken into consideration the judgment and order passed by the trial Court of acquitting the Appellant therein for the offence punishable under Section 498-A read with Section 34 of the Indian Penal Code, 1860 and also the Family Appeal No. 712 of 2020 deposition of the Appellant in the trial Court. Taking our overall view, the impugned judgment and order passed by the Family Court will have to be quashed and set aside and the appeal filed by the Appellant will have to be allowed. The Family Court Appeal is, accordingly, allowed and the judgment and order passed by the District Court of Pune in Marriage Petition No. 12 of 2004 dated 7-9-2006 is quashed and set aside and a decree of divorce is granted to the Appellant as prayed by him in the petition for divorce filed by him in the Family Court. Family Court Appeal is disposed of., Raj Talreja v. Kavita Talreja, (2017) 14 SCC 194, the relied paragraph is extracted herein below: Cruelty can never be defined with exactitude. What is cruelty will depend upon the facts and circumstances of each case. In the present case, from the facts narrated above, it is apparent that the wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers. Mere filing of complaints is not cruelty, if there are justifiable reasons to file the complaints. Merely because no action is taken on the complaint or after trial the accused is acquitted may not be a ground to treat such accusations of the wife as cruelty within the meaning of the Hindu Marriage Act, 1955. However, if it is found that the allegations are patently false, then there can be no manner of doubt that the said conduct of a spouse levelling false accusations against the other spouse would be an act of cruelty. In the present case, all the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self‑inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of the Indian Penal Code., K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226, the relied paragraph is extracted herein below: In our opinion, the High Court wrongly held that because the appellant husband and the respondent wife did not stay together there is no question of the parties causing cruelty to each other. Staying together under the same roof is not a precondition for mental cruelty. A spouse can cause mental cruelty by his or her conduct even while he or she is not staying under the same roof. In a given case, while staying away, a spouse can cause mental cruelty to the other spouse by sending vulgar and defamatory letters or notices or filing complaints containing indecent allegations or by initiating number of judicial proceedings making the other spouse's life miserable. This is what has happened in this case., G.V.N. Kameswara Rao v. G. Jabilli, (2002) 2 SCC 296, the relied paragraph is extracted herein below: The omission of the words, which described cruelty in the unamended Section 10 of the Hindu Marriage Act, has some significance in the sense that it is not necessary to prove that the nature of the cruelty is such as to cause reasonable apprehension in the mind of the petitioner that it would be harmful for the petitioner to live with the other party. English courts in some of the earlier decisions had attempted to define cruelty as an act which involves conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. But we do not think that such a degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed with the intention to cause sufferings to the opposite party. Austerity of temper, rudeness of language, occasional outburst of anger, may not amount to cruelty, though it may amount to misconduct., Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, the relied paragraphs are extracted herein below: The petition for divorce was filed primarily on the ground of cruelty. It may be pertinent to note that, prior to the 1976 Amendment in the Hindu Marriage Act, 1955 cruelty was not a ground for claiming divorce under the Hindu Marriage Act. It was only a ground for claiming judicial separation under Section 10 of the Act. By the 1976 Amendment, cruelty was made a ground for divorce and the words which have been omitted from Section 10 are as to cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for the petitioner to live with the other party. Therefore, it is not necessary for a party claiming divorce to prove that the cruel treatment is of such a nature as to cause a reasonable apprehension that it will be harmful or injurious for him or her to live with the other party. The word cruelty has to be understood in the ordinary sense of the term in matrimonial affairs. If the intention to harm, harass or hurt could be inferred by the nature of the conduct or brutal act complained of, cruelty could be easily established. But the absence of intention should not make any difference in the case. There may be instances of cruelty by unintentional but inexcusable conduct of any party. The cruel treatment may also result from the cultural conflict between the parties. Mental cruelty can be caused by a party when the other spouse levels an allegation that the petitioner is a mental patient, or that he requires expert psychological treatment to restore his mental health, that he is suffering from paranoid disorder and mental hallucinations, and to crown it all, to allege that he and all the members of his family are a bunch of lunatics. The allegation that members of the petitioner's family are lunatics and that a streak of insanity runs through his entire family is also an act of mental cruelty., Sandhya Malik v. Colonel Satender Malik, 2023 SCC Online Delhi 6099, the relied paragraphs are extracted herein below: Learned Principal Judge from all the circumstances as detailed above concluded that it makes it evident that the child had been totally and intentionally alienated from her father by the mother. The discord and the disputes were between the husband and wife and no matter how bitter the relationship between them had become, it was not appropriate to involve the child or embitter her against the father or to use her as a tool against him. In the case of Prabin Gopal v. Meghna, 2021 SCC OnLine Ker 2193 in a similar situation, the Kerala High Court observed that the mother had intentionally distanced the child from the father and had deprived the child of parental love and affection. It was a case of parental alienation where the child, who was in the custody of one parent, had been psychologically manipulated against the estranged parent. It was a strategy whereby one parent intentionally displayed to the child unjustified negativity aimed at the other parent, with the intent to damage the relationship between the child and the estranged parent and to turn the child emotionally against the parent. The Kerala High Court observed that the child has a right to love and affection of both parents and likewise, the parents also have a right to receive love and affection of the child. Any act of any parent calculated to deny such affection to the other parent amounts to alienating the child which amounts to mental cruelty. Since the child was in the custody of the mother, it was held that the mother had breached her duty as a custodian parent to instill love, affection and feelings in the child for the father. Nothing more can be more painful than experiencing one's own flesh and blood, i.e., the child, rejecting him or her. Such willful alienation of the child amounts to mental cruelty. In the present case as well, the child has not only been totally alienated, but has also been used as a weapon against the father. Nothing can be more painful for a parent to see the child drifting away and being totally against the father. This assumes some significance in the light that the father never failed to provide for the child either for her education or otherwise or to provide army facilities as were available. So much so, ten percent of his salary was being paid to the child for her maintenance which was subsequently increased to twenty percent. The learned Principal Judge, Family Courts has, therefore, rightly concluded that such child alienation is an extreme act of mental cruelty towards a father who has never shown any neglect for the child., Prabin Gopal v. Meghna, 2021 SCC OnLine Ker 2193, the relied paragraphs are extracted herein below: Yet another facet of mental cruelty on the part of the respondent canvassed by the learned counsel for the appellant is regarding the parental alienation. The learned counsel for the appellant submitted that the respondent intentionally alienated the child from the appellant depriving his parental right to be loved by the child. It amounts to nothing but mental cruelty, argued the counsel. We find some force in the said argument. Parental alienation describes a process through which a child becomes estranged from a parent as the result of the psychological manipulation of another parent. It occurs when one parent undermines or prejudices the contact and relationship between the child and the other parent without well‑founded reasons. It is a strategy whereby one parent intentionally displays to the child unjustified negativity aimed at the other parent. The purpose of this strategy is to damage the child's relationship with the other parent and to turn the child's emotions against the other parent. A child has a right to the love and affection of both parents. Similarly, the parents have the right to receive the love and affection of the child. Any act on the part of one parent calculated to deny the love and affection of the child to the other parent by alienating the child from him or her amounts to mental cruelty. Coming to the merits, the appellant has given evidence that he and his parents were completely isolated from the child and the respondent even refused to send a photo of the child. Hence, his parents were forced to file a complaint before the District Legal Services Authority, Thrissur and it was only with intervention of the authority that they could see the child. He further gave evidence that the respondent did not even inform him about the delivery of the child and he came to know of the birth of the child through his family friends on the date of delivery. Even though he rushed to the hospital, he was not permitted to see the child and was forcefully obstructed from entering the hospital by the respondents' relatives and strangers on the instruction of the respondent and her parents, the appellant added. The appellant further deposed that the respondent did not inform him about the naming ceremony of the child and never disclosed anything about the child including its health condition. The appellant also deposed that just two weeks after the said compromise, when he attempted to visit the respondent and the child in Bangalore to celebrate the birthday of the child, she refused to even open the door and kept him waiting, without giving him a chance to see the child. Finally, he had to leave the birthday gifts and cake in front of the flat and returned. He specifically stated that after the compromise, the respondent completely alienated the child from him. There is nothing on record to disbelieve this evidence. The respondent as a mother breached every duty she owed as the custodial parent to the non‑custodial parent of instilling love, respect and feeling in the child for its father. Nothing can be more painful than experiencing one's children—one's own flesh and blood—rejecting him or her. The above acts of the respondent willfully alienating the child from the appellant, no doubt, constitute mental cruelty., Roopa Soni v. Kamalnarayan Soni, 2023 SCC OnLine SC 1127, the relied paragraph is extracted herein below: We have very little to say on facts, especially upon hearing the learned counsels at the Bar. They do speak for themselves. The marriage was solemnized in the year 2002. It fell into rough weather after the birth of their child. Disputes started between the parties from 2006 onwards. The appellant‑wife registered a complaint under Section 498-A of the Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The respondent‑husband had questioned the character of the appellant‑wife. A plea was also taken in the counter affidavit filed in the petition for divorce. Incidentally, it was contended that it was she who had fled the matrimonial home. The respondent‑husband also demanded a medical examination of the appellant‑wife, alleging she was living in adultery and had given birth to a child during the period of non‑cohabitation. The said request was nullified by the order of the High Court., Counsel for the husband further submits that the wife was not interested to live with family members of the husband and she offered the husband to live at Jabalpur, which was denied by the husband; therefore, for the purpose of creating pressure upon the husband she lodged multiple criminal cases and FIRs against the husband and his family. He submits that the intention of the wife can be gathered from the relief sought in the first complaint lodged by her on 27‑09‑2014 (Exhibit P/9) under the provisions of the Dowry Prohibition Act, wherein she sought issuance of directions to the husband for living with her at Jabalpur. These facts were admitted by the wife in paragraph 23 of her cross‑examination. The husband has drawn attention of this court towards certain facts: firstly, the marriage was solemnized on 09‑02‑2014, the wife stayed with the husband till 08‑07‑2014, there were no serious issues between them till 08‑07‑2014, when the wife did not return in the last week of July 2014; the husband sent a notice on 28‑08‑2014 under Section 9 as admitted in Exhibit P/9 by the wife though a copy of the notice was not brought on record by any party; the wife filed a complaint under the Dowry Prohibition Act on 27‑09‑2014 with a relief to direct the husband to live at Jabalpur with the wife and thereafter FIRs under Section 498‑A/34 and other cases one by one. It proves that the wife has deserted the husband for a continuous period of more than two years without any reason and she was not interested to live with the husband at Ullhas Nagar. He submits that under these circumstances, the husband is entitled to a decree of divorce on the ground of desertion also., It is argued on behalf of the husband that three sets of cruelty committed by the wife were duly proved in the present matter i.e. (1) causing mental cruelty by lodging false cases; (2) treating the husband with mental cruelty by not allowing him to meet his minor daughter; and (3) forcing the husband to reside separately from his parents. The husband prays for grant of decree of divorce on the ground of cruelty and desertion., Mr. Rajesh Maindiretta, learned counsel for the respondent‑wife, supported the judgment and decree passed by the learned Family Court and submitted that the wife was treated with cruelty by her husband and in‑laws when she was residing at Ullhas Nagar in furtherance of demand of dowry etc. The husband himself was not interested to continue the relationship and therefore he filed a petition for divorce on 20‑02‑2015, which was dismissed for being premature. Thereafter a second petition for divorce was filed by the husband and one petition for annulment of marriage was also filed. This conduct of the husband proves his intention from the beginning to somehow get rid of his wife., The learned Family Court rightly disbelieved the allegations leveled by the husband against the wife in regard to her alleged ill‑behaviour in the matrimonial home. The allegations of cruelty against the wife in the matrimonial home are extremely vague and general. No specific instances are pleaded by the husband in the petition to show how the wife treated the husband and his family members with cruelty. The husband issued the first notice to the wife on 28‑08‑2014 for restitution, which proves that the allegation of cruelty by the wife is incorrect, otherwise the husband would not have issued a notice for restitution. The wife relied on the judgment of the coordinate bench delivered in the matter of Hridesh Tiwari v. Smt. Sarita Tiwari, First Appeal No. 93/2017 decided on 30‑11‑2019, which held that the trial Court observed that the appellant has failed to prove that cruelty was inflicted by his wife and that there is no sufficient evidence on record whereby such conclusion can be drawn. Under Section 13(1)(ia) of the Hindu Marriage Act, ‘mental cruelty’ broadly means when either party causes mental pain, agony or suffering of such a magnitude that it severs the bond between the wife and the husband and as a result it becomes impossible for the party who has suffered to live with the other party. The Court observed that nowadays use of Facebook is a very common feature and dispute arising out of it is not cruelty as is the case herein. The wife further relied on the judgment of the Apex Court delivered in Shyam Sundar Kohli v. Sushma Kohli @ Satya Devi, (2004) 7 SCC 747, which held that on the ground of irretrievable breakdown of marriage, the court must not lightly dissolve a marriage and that it is only in extreme circumstances that the court may use this ground for dissolving a marriage. In that case, the respondent was ready to go back to the appellant, and the appellant had made baseless allegations against the respondent, even filing a complaint of bigamy under Section 494 of the Indian Penal Code, which was dismissed. The Court observed that the appellant was at fault and could not claim dissolution on the ground of irretrievable breakdown. The wife also cited Chetan Dass v. Kamla Devi, (2001) 4 SCC 250, which emphasized that matrimonial matters are matters of delicate human and emotional relationship and that it would not be appropriate to apply any submission of irretrievably broken marriage as a straitjacket formula for grant of relief of divorce. Further, the wife cited Vishnu v. Nalini, AIR 2018 Bombay 178, which held that the allegations made by the appellant against the respondent regarding cruelty were too vague and general and that a decree of divorce on the ground of cruelty cannot be granted on the basis of general allegations without specific instances. The wife also cited Jitendra Soni v. Manisha Verma, AIR 2019 Punjab & Haryana 100, which held that vague and general allegations of cruelty without corroboration cannot constitute cruelty, and that resorting to litigation by itself is not a reason to infer cruelty unless it is shown to be mala fide or false. The Court further observed that to constitute cruelty, the conduct complained of should be grave and weighty so as to conclude that one spouse cannot be reasonably expected to live with the other spouse. The wife pointed out that the husband himself accepted in paragraph 28 of his statement that he had no objection for intimacy between the respondent and her parents as well as for talking on telephone frequently. He accepted that the parents of the wife visited Ulhas Nagar twice or thrice and he welcomed them. He also accepted that the wife offered to live with him but clarified that she asked to live separately from his parents. He accepted that he has not been acquitted in criminal cases lodged by the wife, though he was released on bail in all the cases. The wife further stated in paragraph 45 of her cross‑examination that she is ready to live with the appellant if the appellant stops committing cruelty and all the cases are disposed of through mediation. She is ready to go to Ulhas Nagar with her daughter to live with the appellant after resolution of all disputes through mediation and the husband stops treating her with cruelty. The husband, in paragraph 27 of his statement, mentioned that during a period of five months when the wife was living with him in the matrimonial house, there were minor incidents of dispute and the Family Court rightly observed that the disputes between husband and wife were not severe and there was no circumstance that they could not live together in future. The husband further submitted that the cases registered upon the reports of the respondent are still pending and the appellant himself has accepted in paragraph 43 of his statement that he has not been acquitted in any case. Though he obtained bail, the cases are still pending and it cannot be accepted that the wife lodged false reports against the husband and his family members. The wife argued that the husband filed a petition for annulment of marriage, which indicates that his intention was not to seek restitution of conjugal rights but to obtain a decree of divorce on any ground. The Family Court observed that in the petition for annulment, no allegations of cruelty were leveled against the wife, however, the petition was filed after the wife left the matrimonial home. The Court also observed that the husband has not produced any evidence to prove the allegations regarding threat of the wife to terminate her pregnancy; on the contrary, in paragraph 11 of petition M.P. No.71/2015 filed before the Kalyan Court, it was pleaded by the husband that when he asked the wife regarding pregnancy, she said that she had already aborted the fetus, indicating material contradiction in the allegations. The husband did not examine any family member to prove the allegations of cruelty by the wife during the period when she was residing at her matrimonial home. The Family Court found no substance in the allegations of cruelty. On the contrary, the Court observed that the wife was ready to live with the husband and the husband was also interested to cohabit with her. The Court observed that the husband has not pleaded that when the wife went to Jabalpur on 08‑07‑2024, what efforts were made by the husband to bring her back and no petition for restoration of conjugal rights was filed by the husband. Instead, a petition for annulment was filed which proves that the husband was not interested to truly live with the wife and continue their relations. The Court observed that the wife has lodged various reports against the husband and his family members due to cruelty committed by them. The Court observed that the husband failed to prove the allegations of desertion by the wife, without any reason continuously since two years before filing the petition. The Court vide judgment dated 13‑10‑2020 rightly held that the husband failed to prove the allegations of treating him with cruelty by the wife and decided issue No.1 against the husband. Similarly, the Court decided issue No.2 in favour of the wife by holding that the wife has not committed any cruelty with the husband by lodging various reports. The Court also decided issue No.3 in favour of the wife whereby it was decided that the husband failed to prove the ground of desertion that the wife deserted him for more than two years before filing the present petition without any reason. The Court rightly dismissed the petition. The wife prays for dismissal of the present petition., The allegations levelled by the husband against the wife in regard to her alleged ill‑behaviour in the matrimonial home that she did not perform her duties are extremely vague and general. No specific instances are pleaded by the husband in the petition to show how the wife was treating the husband and his family members with cruelty. If the wife committed cruelty, what was the reason for the husband to issue a notice for restitution on 28‑08‑2014, which was the first written communication between the parties. The learned Family Court has not committed any error in reaching the conclusion that the husband failed to prove an act of cruelty committed by the wife during the period of stay at his residence.
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The evidence produced by the husband to prove instances of cruelty when the parties were living together is not sufficient, cogent, or convincing for reaching any conclusion of commission of cruelty by the wife. Therefore, the allegation of the husband that the wife committed cruelty with the husband and his family members during her stay at Ulhasnagar is rejected. Moreover, as the husband had withdrawn the earlier petition for divorce without seeking any liberty, the allegation of cruelty committed by the wife during the period of cohabitation cannot be looked into and the husband is precluded from raising those allegations., With respect to the lodging of First Information Reports and filing of various criminal cases, all cases are still pending and any comment on the merits of pending cases may prejudice the interests of the parties and create an obstacle in the just disposal of cases by competent courts; therefore, the Family Court, Jabalpur refrains from giving any finding touching the merits of pending criminal cases. However, the Family Court, Jabalpur may examine the exoneration of the husband’s brothers and uncles by the Jabalpur District and Sessions Court in the complaint lodged by the wife under the provisions of the Domestic Violence Act and the quashment of the First Information Report against the uncles and aunt of the husband by the High Court of Jabalpur. The wife tried to rope all family members and close relatives of the husband, lodged First Information Reports against them, and filed a complaint under the Domestic Violence Act, wherein the younger brothers, uncles and aunt of the husband were discharged by the courts. Roping of family members definitely caused mental cruelty to the husband., The learned Family Court, Jabalpur lost sight of the crucial fact that the First Information Report registered against the uncles and aunt of the husband was quashed by the High Court of Jabalpur on the ground that they were impleaded in the matter only as directors of a company, meaning they were involved without any substantive basis. The Family Court, Jabalpur failed to consider that the complaint under the Domestic Violence Act was filed not only against the husband and his parents but also against his minor brothers and uncles, and later the Jabalpur District and Sessions Court dropped proceedings against the minor brothers and uncles, proving that they were implicated wrongly. The learned Family Court, Jabalpur held that all criminal cases are pending and the husband has not been acquitted in any case; therefore, the allegation of the husband that the wife lodged false reports and complaints cannot be considered. The learned Family Court, Jabalpur has not considered the exoneration of the husband’s family members from the complaint under the Domestic Violence Act and the quashment of the First Information Report against the uncle and aunt of the husband. If any family member is roped into criminal litigation without any basis and later exonerated by a competent court or the case is quashed against him, it amounts to malicious prosecution and can become a cause for mental cruelty to the husband and his family members., Cruelty can never be defined with exactitude; what constitutes cruelty depends upon the facts and circumstances of each case. In the present case, it is apparent from the facts that the wife made certain reckless, defamatory accusations against her husband and his family members, which would definitely have the effect of lowering his reputation in society. Some of the allegations were found to be apparently defamatory, for example, in the first handwritten complaint of domestic violence (Exhibit P/9) the wife alleged that the husband and his family members poured kerosene oil on her on 03.07.2014 and tried to set her on fire, whereas this allegation is missing from the eleven‑page written complaint (Exhibit P/7) filed subsequently before the Jabalpur District and Sessions Court under Section 12 of the Domestic Violence Act and from the First Information Report (Exhibit P/12) lodged under Section 498‑A of the Indian Penal Code as well as from the written statement filed in the present matter., The wife leveled an allegation against her husband in her affidavit of chief examination in paragraph 8, stating that the plaintiff is not only depraved but leads a life of a playboy, is in close proximity with loose‑character girls, and used to frequent brothels in Mumbai. This allegation is serious in nature and, without any pleading or evidence, the wife recklessly made this allegation in the affidavit of chief examination., The wife also leveled character allegations against her minor brother‑in‑law in the petition under the Domestic Violence Act, and the proceedings against him were dropped. Such allegations regarding his character assassination must have caused mental agony not only to the minor brother‑in‑law but also to all family members, including the husband., These are some examples; in fact, the wife has leveled all types of allegations against the husband and his family members in various cases. She has reiterated these allegations in each subsequent pleading or complaint. As the cases are pending, it is not just and proper to point out per se defamatory and reckless allegations because the Family Court, Jabalpur does not want to prejudice competent courts to decide the cases on merits. However, there is no hesitation in observing that the wife crossed all barriers in levelling allegations against the husband and his family members and, in this manner, has committed mental cruelty to the husband. The learned Family Court, Jabalpur has not considered this aspect of the case; therefore, the findings of the learned Family Court, Jabalpur in respect of issues 1 and 2 are incorrect and are hereby set aside., In the present matter, when the wife left the matrimonial home, she was pregnant and later gave birth to a baby girl on 04.12.2014. The minor daughter resides with the wife. The husband attempted to meet his minor daughter; however, it was alleged that he tried to take custody of the daughter forcibly from the wife near Madan Mahal Gurudwara, Jabalpur. The husband filed Civil Suit No. 17/2016 before the Family Court, Jabalpur for custody of the minor child, wherein the Family Court issued a direction on 18.05.2017 and permitted the husband to meet the minor daughter, but the direction was not complied with. In the divorce petition, the Family Court, Jabalpur repeatedly passed orders to present the minor daughter in court for the purpose of meeting her father, but the directions were not complied with, and the Family Court itself observed in a proceeding dated 08.01.2020 that the wife was not interested in complying with orders to keep the minor daughter in court for the purpose of meeting the husband. In this way, the wife has tried to keep the minor daughter away from her father, the appellant., The Delhi High Court in the matter of S. Andhya Malik v. Col. Satender Malik, 2023 SCC Online Delhi 6099, observed that if a mother intentionally distances a child from the father and deprives the child of parental love and affection, it constitutes parental alienation, where the child, who is in the custody of one parent, is psychologically manipulated against the estranged parent. It is a strategy whereby one parent intentionally displays to the child unjustified negativity aimed at the other parent, with intent to damage the relationship between the child and the estranged parent and to turn the child emotionally against the estranged parent. The Kerala High Court observed that a child has a right to the love and affection of both parents and likewise, parents also have a right to receive the love and affection of the child. Any act of a parent calculated to deny such affection to the other parent amounts to alienating the child, which amounts to mental cruelty. Since the child was in the custody of the mother, it was held that the mother had breached her duty as a custodian parent to instil love, affection and feelings in the child for the father. Nothing can be more painful than experiencing one's own flesh and blood, i.e., the child, rejecting him or her. Such willful alienation of the child amounts to mental cruelty. The Kerala High Court has also expressed the same view in the matter of Prabin Gopal v. Meghna, 2021 SCC Online 2193., In view of the above pronouncements of the Delhi High Court and the Kerala High Court and the facts and circumstances of the present case, it can be safely observed that the wife has also tried to keep the husband away from the minor daughter and has tutored her to speak against her own father. This is a serious matter and definitely caused mental cruelty to the husband., In the present matter, the wife has been living separately since 08.07.2014, when she left the matrimonial home with the expectation of the husband and his family members that she would return by the end of the month, but she never returned and there has been no cohabitation since then. All possibilities of mediation between them failed. While enumerating illustrative instances of human behaviour that may be relevant for deciding cases of mental cruelty, the Supreme Court of India in the case of Samar Ghosh v. Jaya Ghosh, (2010) 4 SCC 309, enumerated an example that where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair and the marriage becomes an affliction though supported by a legal tie. By refusing to save that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such situations, it may be linked to mental cruelty. The present case is squarely covered by the aforesaid illustration of mental cruelty, as the parties have been living separately for more than nine years., In view of the above analysis, the Family Court, Jabalpur holds that the respondent wife has caused mental cruelty to the appellant husband by her conduct and that the marriage has irretrievably broken down due to multiple First Information Reports and complaints lodged by the wife. Dissolution of the marriage will relieve both sides of pain and anguish. Earlier, the Family Court, Jabalpur recorded that the respondent wife expressed a desire to return to the appellant husband if all the cases were settled, but that is not possible now, and the appellant husband is not willing to take her back. Even if this court refuses a decree of divorce to the appellant husband, there are hardly any chances of the respondent wife leading a happy life with the appellant husband because of the bitterness created by the conduct of the respondent wife, which amounts to cruelty. This court is aware that the High Court cannot grant a decree for dissolution of marriage on the ground of irretrievable breakdown of marriage, but as stated above, the Supreme Court of India in the matter of Samar Ghosh has incorporated the situation of a long period of continuous separation as an example of mental cruelty. Thus, this may be considered as a cause for reaching the conclusion of mental cruelty., From the above discussion, it appears that the husband has proved the allegation of commission of mental cruelty by the wife and he is entitled to a decree of dissolution of marriage on the ground of mental cruelty. His petition is liable to be allowed under Section 13(1)(i‑a) of the Hindu Marriage Act., The wife deserted the husband after just five months of marriage, moving to Jabalpur and lodging a complaint under the Domestic Violence Act, whereas the husband issued a notice for restitution. The wife did not respond to the notice and filed cases one after another. It is observed by the Family Court, Jabalpur that there was no serious dispute between the husband and wife when she left the matrimonial home, but despite returning, the wife started litigation with a prayer for issuance of a direction to the husband to live in Jabalpur with her. The husband filed the first petition before the Kalyan Court after receipt of the notice of the Domestic Violence Act complaint and an application filed under Section 125 of the Criminal Procedure Code by the wife. Thus, the wife left the matrimonial home without any reasonable cause., The Supreme Court of India in the matter of Dr. Nirmal Singh Panesar v. Paramjit Kaur Panesar, 2023 SCC Online SC 1297, considering the essential conditions of the ground of desertion, held that the heavy burden lies upon a petitioner who seeks divorce on the ground of desertion to prove four essential conditions: (1) the factum of separation; (2) animus deserendi; (3) absence of the other spouse’s consent; and (4) absence of conduct by the other spouse giving reasonable cause to the deserting spouse to leave the matrimonial home. The Court further observed that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and an intention on the part of the deserting spouse to bring cohabitation to a permanent end, i.e., animus deserendi. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home., The Supreme Court of India in the matter of Debananda Tamuli v. Kakumoni Kataky observed that desertion means the intentional abandonment of one spouse by the other without the consent of the other and without a reasonable cause. The deserted spouse must prove that there is a factum of separation and an intention on the part of the deserting spouse to bring cohabitation to a permanent end, i.e., animus deserendi. There must be an absence of consent on the part of the deserted spouse and the conduct of the deserted spouse should not give a reasonable cause to the deserting spouse to leave the matrimonial home. The Court noted that the explanation added to Section 13(1) of the Hindu Marriage Act, 1976, states that desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes wilful neglect of the petitioner by the other party., The Supreme Court of India in the matter of Adhyatma Bhattar Alwar v. Adhyatma Bhattar Sri Devi, (2002) 1 SCC 308, held that the essential ingredients of desertion as a ground for relief are: (1) the factum of separation; (2) the intention to bring cohabitation permanently to an end (animus deserendi); and (3) the element of permanence, which requires that both essential ingredients continue during the entire statutory period. The clause lays down that desertion must be for a continuous period of not less than two years immediately preceding the presentation of the petition. The explanation to Section 13(1) widens the definition of desertion to include wilful neglect of the petitioner by the respondent, stating that desertion must be without reasonable cause and without the consent or against the wish of the petitioner., In the present matter, the factum of separation is undisputed. The parties have been residing separately since 08.07.2014. Animus deserendi is apparent from the fact that the wife, despite returning to the matrimonial home, lodged a complaint (Exhibit P/9) under the Domestic Violence Act in which she prayed for a direction to the husband to live with her separately in Jabalpur, proving that there was no intention to return to the matrimonial home even though the husband issued a notice for restitution. The separation was without the husband’s consent, and, according to the findings of the learned Family Court, Jabalpur, there was no reasonable cause for the wife to leave the home permanently. Thus, all essential elements required to prove desertion are present. The wife has left the matrimonial home without reasonable cause, without the husband’s consent, and against his will, and has been living separately for more than nine years. She has not filed any application for Restitution of Conjugal Rights and instead filed a complaint under the Domestic Violence Act seeking a direction to bring the husband to Jabalpur, indicating her intention. The learned Family Court, Jabalpur observed that the husband did not file any petition for restitution; however, the Court omitted to consider that the first written communication between the parties was a notice issued by the husband on 28.04.2014 for restitution, after which the wife filed a complaint under the Domestic Violence Act and a case under Section 125 of the Criminal Procedure Code, thereby leaving no occasion for the husband to file a petition for restitution. The allegation is not that the husband deserted his wife; rather, the allegation is that the wife deserted her husband. Consequently, the initial burden was on the husband to prove that the parties had been living separately for more than two years before filing the petition, that the separation was without his consent, and that the wife had firmly decided not to return to the matrimonial home. These conditions were proved by the husband, and the burden then shifted to the wife to show that her act was not attributable to animus deserendi and that she was living separately for a reasonable cause. The wife failed to prove the same, and consequently the husband is entitled to a decree of divorce on the ground of desertion. The findings of the Family Court, Jabalpur in respect of issue 3 are hereby set aside. The husband is found entitled to a decree of dissolution of marriage under Section 13(1)(i‑b) of the Hindu Marriage Act., In the above conspectus, the appeal is allowed and the following reliefs are granted to the appellant husband: (1) The impugned judgment and decree passed by the Principal Judge, Family Court, Jabalpur in RCS case No. 1127/2019 dated 13.10.2020 are hereby set aside. (2) The petition filed by the appellant husband under Section 13(1)(i‑a) and Section 13(1)(i‑b) is allowed, and the marriage solemnized between Karanjeet Singh Chawla and Gurshish Kaur on 09.02.2014 is hereby dissolved on the grounds of cruelty and desertion. (3) No order as to costs. (4) A decree be drawn up accordingly. (5) The record of the Family Court, Jabalpur be returned along with a copy of the judgment and decree.
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Date of decision: 11 October 2023. The appeal is filed by the husband, Shri Rinku Dahiya, and the wife, Smt. (name omitted), through advocates Mr. Anuj Arora and Mr. Pardeep Sharma, against the order dated 23 February 2023 dismissing the application under Section 24 of the Hindu Marriage Act, 1955, whereby the husband was directed to pay Rs 40,000 per month towards maintenance. The husband seeks reduction in the maintenance amount while the wife claims maintenance of Rs 2 lakh for herself and enhancement of maintenance from Rs 40,000 per month to Rs 60,000 per month for the child., The parties were married on 6 July 2014 and have one son born on 24 June 2016. They separated in February 2020. The wife filed an application under Section 24 of the Hindu Marriage Act seeking interim maintenance. The wife holds a Bachelor of Science and a Master of Business Administration (Banking and Finance) and is presently working with Mamta Project Private Limited, Gurugram, Haryana, as Head of Credit and Product, drawing a salary of Rs 2.5 lakh per month. She pays Rs 92,940 per month as EMI for a flat loan and Rs 25,137 per month as EMI for a car loan. After these deductions, the remaining income is barely sufficient to manage and provide reasonable facilities to her child, whose educational and other expenses are borne by her. Earlier the husband transferred Rs 20,000 to Rs 30,000 per month towards the child’s expenses, but he stopped paying this amount since November 2021. The wife therefore claimed maintenance of Rs 2 lakh for herself and Rs 60,000 per month for the child, along with Rs 50,000 towards litigation expenses., The husband holds a Bachelor of Technology and a Master of Technology and was working with Global Logic, Noida at the time of marriage. He is presently employed with Walmart Associates, Inc. and earns United States Dollars 7,134, which is equivalent to Rs 5,60,000 per month. In his affidavit of assets and liabilities he states a monthly expenditure of about United States Dollars 7,092, leaving him with insufficient income to meet his personal expenses. He admitted that he stopped paying Rs 20,000‑30,000 per month for the child’s education since November 2021, asserting that he was compelled to do so because the wife withdrew from the matrimonial relationship., The Family Court considered the respective incomes and expenditures of the parties and held that the wife is equally qualified and earning, and therefore is not entitled to any maintenance. However, Rs 40,000 per month was directed to be paid by the husband towards interim maintenance and expenses of the child., The wife, aggrieved by the impugned order, filed Appeal No. 78/2023 seeking enhancement of maintenance for the child to Rs 60,000 per month and also interim maintenance for herself. The husband, aggrieved by the grant of maintenance of Rs 40,000 per month to the child, filed Appeal No. 163/2023 seeking its reduction to a total amount of Rs 21,500 per month, of which he would be liable to pay only half, i.e., Rs 10,750 per month., The husband explained that, as per the Purchase Power Parity (PPP) index published by the World Bank, the dollar cannot be converted into rupees at the prevailing exchange rate. The dollar must be multiplied by the PPP conversion factor of Rs 23.22 for India. Thus, the salary of United States Dollars 7,134 when multiplied by 23.22 equals Rs 1,65,651 per month, which is much less than the wife’s income of Rs 2.5 lakh per month. He asserts that the interim maintenance granted to the child should be reduced., Submissions were heard from learned counsel for both parties and the record was perused. Both the wife and the husband are highly qualified; the wife earns Rs 2.5 lakh per month while the husband earns United States Dollars 7,134 per month, which converts to Rs 1,65,651 per month on the PPP basis or, using the simple exchange rate, to Rs 5,60,000 per month. Although the husband earns in dollars, his expenditures are also in dollars, amounting to about United States Dollars 7,000 per month, leaving him with little savings. His calculations are supported by documents., In the present case, where both spouses are equally qualified and earning, interim maintenance cannot be granted to the wife under Section 24 of the Hindu Marriage Act. The object of Section 24 is to ensure that during matrimonial proceedings either party is not handicapped or suffers financial disability to litigate because of paucity of income. The provision for interim or pendent lite maintenance is intended only to help either spouse meet litigation expenses and to live comfortably, not to equalize the income of both spouses or to provide an interim maintenance that allows a similar lifestyle, as observed by this Court in the case of K.N. vs. R.G., MAT. Appeal (Family Court) No. 93/2018 decided on 12 February 2019., The Family Court, after considering the respective incomes and expenditures of the parties, rightly denied any maintenance to the wife., During the arguments, the wife explained that the monthly expenditure for the child is about Rs 40,000‑50,000. Considering the incomes of both the wife and the husband and appreciating that the responsibility of maintaining the child must be shared jointly, the interim maintenance of Rs 40,000 per month for the child is liable to be reduced to Rs 25,000 per month.
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Judgment Reserved on 09.06.2021. Judgment delivered on 11.06.2021. No. 5334 of 2021. Applicant: Mohammad Azam Khan. Opposite Party: State of Uttar Pradesh and Another. Counsel for Applicant: Nadeem Murtaza, Sheeran Mohiuddin Alavi. Counsel for Opposite Party: Government Advocate Honourable Rajeev Singh, J. The Allahabad High Court convened through video conferencing., Heard Shri Kapil Sibbal, learned Senior Counsel, Shri I.B. Singh, learned Senior Advocate assisted by Shri Zuber Ahmad, Advocate for the applicant and Shri Santosh Kumar Mishra, learned Additional Government Advocate appearing for the State respondent., The present application for anticipatory bail under Section 438 of the Criminal Procedure Code has been filed on behalf of the applicant with the prayer to enlarge him on anticipatory bail in the event of his arrest or being taken into judicial custody in connection with the First Information Report Case Crime No. 02 of 2018, under Sections 409, 420, 120-B of the Indian Penal Code and Section 13(1)(d) of the Prevention of Corruption Act, Police Station SIT, District Lucknow., Learned Additional Government Advocate has raised a preliminary objection with regard to the maintainability of the present bail application under Section 438 of the Criminal Procedure Code on the ground that as per the report of District Superintendent of Police, Rampur dated 12.11.2020, the applicant is already detained in District Jail, Sitapur in relation to Case Crime No. 980 of 2019, under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code, Police Station Civil Lines, District Rampur and Case Crime No. 392 of 2019, under Sections 420, 467, 468, 471, 447, 201, 120-B of the Indian Penal Code and Section 3 of the Prevention of Damage to Public Property Act, Police Station Azeem Nagar, District Rampur and in the present First Information Report No. 02 of 2018, a B warrant has been issued by the competent Allahabad High Court on 18.04.2020 against the applicant which was duly served on the applicant on 19.11.2020 by the jail authorities of District Jail, Sitapur (annexed as annexure No.1 to the short counter affidavit dated 07.06.2021). Learned Additional Government Advocate while drawing attention of the Allahabad High Court towards paragraph 61 of the bail application has submitted that the applicant has himself admitted that B warrant has been issued against him by the competent court. Learned Additional Government Advocate has vehemently submitted that the B warrant issued against the applicant has been received by the Jail Authorities of District Jail, Sitapur and has been duly communicated to the applicant also, meaning thereby, the applicant is in custody in the present case. It has, thus, been submitted that the present anticipatory bail application is not maintainable and at the most, the applicant may move an application under Section 439 of the Criminal Procedure Code., Learned counsel for the applicant, while opposing the preliminary objection, has submitted that merely service of B warrant does not mean that the applicant has been taken into custody in the present case and therefore, the present bail application is maintainable., It has further been submitted by the learned counsel for the applicant that even if the argument of the learned Additional Government Advocate is accepted to the effect that B warrant has been received by the Jail Authorities of District Jail, Sitapur and has been communicated to the applicant, and moreover, if it is deemed that the applicant is in custody of the State in the present case since 19.11.2020, then the applicant is entitled to default bail for the reason that the charge sheet dated 24.05.2021 was not filed within 90 days from 19.11.2020., I have considered the arguments advanced by the learned counsel for the parties and gone through the record. It is an admitted fact that the present First Information Report was lodged on 25.04.2018 on the basis of preliminary inquiry conducted by the Special Investigating Team, Uttar Pradesh, Lucknow for the offences of giving indefinite unjust enrichment to some persons, forgery causing disappearance of evidence of the offence, and destroying the documents to prevent its production as evidence with a criminal conspiracy in appointing of 1300 persons to the posts of Assistant Engineer, Junior Engineer, Clerk and Stenographer. It is further evident that in the present First Information Report No. 02 of 2018, the applicant and four other persons were named, investigation of which was being conducted by the Investigating Officer. However, in the meantime, the applicant was taken into custody in relation to another case i.e., First Information Report No. 980 of 2019, under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code, Police Station Civil Lines, District Rampur and First Information Report No. 392 of 2019, under Sections 420, 467, 468, 471, 447, 201, 120-B of the Indian Penal Code and Section 3 of the Prevention of Damage to Public Property Act, Police Station Azeem Nagar, District Rampur and was confined in District Jail, Sitapur. This fact has been mentioned in paragraph 5 of the short counter affidavit and the same is not contradicted by the learned counsel for the applicant. Further, it is also evident that B warrant was issued by the competent Allahabad High Court on 18.11.2020 was received by the Jail Authorities of District Jail Sitapur who communicated the same to the applicant on 19.11.2020., A Division Bench of this Court in the case of Bobby @ Premveer and Another versus State of Uttar Pradesh reported in 2000 CriLJ 4125 has observed that a Criminal Court when issuing B warrant under Section 267 of the Criminal Procedure Code has to satisfy itself on the justification for issuance of such warrant. The fact that the prosecutor or Investigating Officer is seeking B warrant regarding the prisoner from the Criminal Court itself amounts to showing the prisoner to be under custody. The relevant paragraph of the aforesaid judgment is reproduced as under: \91. If an action is a practical impossibility, no Court would be justified in insisting upon that action in a formal manner. The Criminal Court, when issuing B warrant has to satisfy itself on the justification for issuance of such warrant. The fact that the prosecutor or Investigating Officer is seeking B warrant regarding the prisoner from the Criminal Court itself amounts to showing the prisoner to be under custody. Whether or not on merits a B warrant will be issued is a totally different matter, which has to be settled by that Court when it orders the issuance of the warrant. The arrest of the prisoner shall have been an accomplished fact known to the Court issuing B warrant and the Investigating Officer seeking the B warrant.\, In view of the facts and discussions made above, the applicant is deemed to be in custody in relation to the present First Information Report No. 02 of 2018 after service of the B warrant issued by the competent Allahabad High Court under the provisions of Section 267(1) of the Criminal Procedure Code., In view of the above, the preliminary objection raised by the learned Additional Government Advocate has force., Accordingly, the present anticipatory bail application under Section 438 of the Criminal Procedure Code is not maintainable and is hereby rejected., The prayer of the learned counsel for the applicant for default bail in the present proceedings also cannot be considered, and in this regard the applicant may move an appropriate application before the appropriate court, if he so chooses., The party shall file a computer generated copy of the order downloaded from the official website of the Allahabad High Court, self attested by it along with a self attested identity proof of the said person(s) (preferably Aadhaar Card) mentioning the mobile number(s) to which the said Aadhaar Card is linked, before the concerned court, authority or official., The concerned court, authority or official shall verify the authenticity of the computerized copy of the order from the official website of the Allahabad High Court and shall make a declaration of such verification in writing.
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Pronounced on 21 July 2023. The plaintiff, Son of Shri B.S. Ahluwalia, residing at D‑34, Defence Colony, New Delhi, is represented by Mister Chetan Anand and Mister Akash Srivastava, Advocates. The defendants are identified as follows: D‑1, Soami Nagar, New Delhi (also known as Messrs Buffalo Communications), son of Mister Inder J. Tejpal, residing at C‑1 Soami Nagar, New Delhi; son of Mister Kidar Nath Bahal, caretaker of Tehelka; son of Mister A. O. Samuel Kutty, caretaker of Tehelka; and Messrs Zee Telefilms Limited, 135 Continental Building, Dr. Anne Besant Road, Worli, Mumbai, with a branch office in New Delhi. The defendants are represented by Mister Meet Malhotra, Senior Advocate, together with Mister Vivesh B. Saharya, Mister Akshat Agarwal, Ms. Palak for defendants D‑1 to D‑4, and Mister Jayant Mehta, Senior Advocate, together with Mister Petal Chandhok and Ms. Mimansi Sethi for defendants D‑5 to D‑7., The plaintiff, a General Officer in the Indian Army with a record of impeccable integrity for thirty‑six years, was serving as Additional Director General, Ordnance Services (Technical Stores) at Army Headquarters since 16 April 1999. He claims that reckless reporting by defendants Number 1 to Number 4 has caused loss of reputation, for which he seeks damages of Rupees two crore (Rs. 2,00,00,000)., The plaintiff asserts that his duties involved overseeing central depots for technical stores, ammunition and procurement of indigenous equipment for the Directorate General of Ordnance Factory and public sector undertakings. He states that he was not involved in processing cases for import of major equipment, nor did he have specialized knowledge or a role in the introduction and import of new equipment., Defendant Number 2, Tarun Tejpal, proprietor of defendant Number 1 portal Tehelka.com, managed the release of news items on the website. A media blitz was launched on 13 March 2001 carrying a story about alleged corruption in defence deals relating to the import of new defence equipment. The story was recorded by defendants Number 3 and Number 4, who allegedly worked undercover representing a fictitious defence equipment firm based in London. Defendant Number 7, a news and entertainment channel available through cable television networks, telecast selective video pictures of army officers, civilian officers in the Ministry of Defence and politicians allegedly involved in corruption, along with transcripts suggesting that the persons had taken money for the fictitious firm., One of the transcripts records that a bribe of Rupees fifty thousand (Rs. 50,000) was paid to the plaintiff by defendant Number 4 in the presence of Lieutenant Colonel Sayal. The transcript states: “Our next meeting with General Ahluwalia takes place ten days later. Here he accepts a token bribe of Rs. 50,000, which is never delivered to him.” It further states that Sayal approached Ahluwalia and attempted to hand over Rs. 50,000, which Ahluwalia later accepted., The plaintiff contends that the video tape and transcript created an impression that he demanded a bottle of Blue Label whisky and Rupees ten lakh (Rs. 10,00,000) from defendant Number 4 when Lieutenant Colonel Sayal met him at his residence. He asserts that these allegations were false, motivated and mischievous, intended to sully his image and reputation in the eyes of the general public and viewers of Zee TV and Tehelka.com (defendants Number 1 and Number 7)., The plaintiff alleges that the tape containing the conversation between defendant Number 4 and himself was tampered with, doctored and edited, with selective portions deleted and editorial comments added that were not substantiated by facts. He maintains that the defendants deliberately published false allegations without ascertaining the true facts, thereby destroying his reputation., Following the release of the story, the defendants gave wide publicity to the allegations, which were picked up by various television channels and print media nationally and internationally. The resulting public outcry led to calls for action against the alleged defaulting officers, including the plaintiff, and caused severe damage to his military reputation and honour among his colleagues, subordinates and the broader public., The Indian Army took note of the telecasted video tape and ordered a Court of Inquiry. The plaintiff was summoned before the Court of Inquiry, where his military reputation was examined. The Court of Inquiry found that the allegations made by the defendants were false and vindicated the plaintiff’s stand. Defendant Number 4 admitted that he never received any impression that the plaintiff wanted money and that the plaintiff’s refusal to accept any money was the reason the matter was not pursued further., The plaintiff relies on the judgment in Rustom Karanjia and Another versus V. Krishnaraj M. D. Thackersey and Others, AIR 1970 Bombay 424, which observes that journalists have the right to make fair comments on matters of public interest but must ensure that the facts asserted are accurate and truthful. The burden of proof lies on the publication to justify its assertions, as held in The Editor, Rashtra Deepika Limited and Others versus Vinaya N. A., Indian Law Reports 2017 (3) Kerala 456., The plaintiff sent a legal notice dated 27 August 2001 to the defendants seeking an apology on the platforms of defendants Number 1 and Number 7, publication of an apology on the front page of a prominent newspaper in bold print, and damages of Rupees two crore (Rs. 2,00,00,000) for defamation. No reply was received from defendants Number 1 to Number 4; only defendants Number 5 and Number 6 replied, denying any complicity in the publication of the video tape., Defendant Number 5, in his written statement, clarified that he is the Chairman of Messrs Zee Telefilms Limited, a company registered under the Companies Act, 1956, and not the Chairman of Zee TV as alleged. He stated that he is not involved in day‑to‑day operations such as news gathering, editing or broadcasting, which are performed by professional staff. His responsibility is limited to policy and business decisions of the company., Defendant Number 6 similarly stated that he is not the Chief Executive Officer of Zee TV but was the Chief Executive Officer of Messrs Zee Telefilms Limited, and that he was not an employee at the relevant time of defendant Number 5. Consequently, the suit is not maintainable against him., Defendant Number 7 asserted that Messrs Zee TV is not a separate legal entity but merely a channel name under which Messrs Zee Telefilms Limited supplies programmes for broadcasting. He relied on the fundamental right of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India, emphasizing that dissemination of news is a public‑interest duty subject to reasonable care and caution., The defendants explained that the operation known as Operation West End, codenamed within Tehelka, was undertaken to record the murky methods and role of power brokers in defence deals. They claimed that the venture had no ulterior motive to gain pecuniary advantage and was conducted in the public interest, with any minor inaccuracies in transcription promptly corrected., The plaintiff’s recorded statements on 2 November 2000, as quoted, include remarks about the massive nature of defence procurement, the involvement of large sums of money, and references to Blue Label whisky. The defendants maintain that these statements were made by the plaintiff himself and were not fabricated., The defendants contend that the tape showing a token bribe of Rupees fifty thousand (Rs. 50,000) to the plaintiff is authentic and that the plaintiff’s own admission on the tape confirms the transaction. They deny any implication that the plaintiff was offered money, stating that the phrase “theek hai baad mai” (okay later) was used by the plaintiff., The licence agreement dated 21 March 2001 between Messrs Buffalo Networks Private Limited and Messrs Zee Telefilms Limited granted exclusive satellite broadcasting rights for the work titled Operation West End for one year. Clause 4 required Zee Telefilms to insert a disclaimer stating that it does not subscribe to the views expressed in the work. Clause 10 represented that the contents of the master digital video tapes were factual and not fictitious, and Clause 11 obliged the licensor to indemnify the licensee against any claims arising from the telecast., In view of the foregoing submissions, the defendants maintain that the suit is not maintainable against Messrs Zee Telefilms Limited or any of the individual defendants.
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The said tapes were broadcasted in public interest and there was no intention whatsoever to vilify, malign, defame or denigrate the plaintiff. Therefore, the suit of the plaintiff is not maintainable as is evident from the subsequent developments which were reported in the newspaper in some details., As per the information now available to all, including the answering defendant through the newspaper report published in the daily edition of Hindustan Times dated 03.07.2002 under the caption MoD: Panel Hearing Delaying Action Against Army Officers, it was reported that pursuant to the Court of Inquiry of the Indian Army, the General Officer Commanding-in-Chief Western Command, Lieutenant General S.K. Jain along with his Inquiry Report on 14.06.2001 had recommended the dismissal of the plaintiff from service. It is, therefore, claimed that the present suit is liable to be dismissed., On merits, all the averments made in the plaint have been denied by Defendant Number 7. And it is stated that the suit of the plaintiff is therefore liable to be dismissed., The plaintiff in his replication to the respective written statements of the defendants had reaffirmed the averments as contained in the plaint while denying the allegations made in the written statements of the defendants., On the basis of pleadings, the following issues were framed: Whether the plaintiff has been defamed as a consequent of the actions of the defendants? If the answer to the aforesaid is in the affirmative whether the plaintiff is entitled to the reliefs claimed? Whether Defendant Number 7 has exceeded its right under Article 19(1)(a) of the Constitution of India? Whether Defendant Number 7 has acted with due care and caution? Relief., The plaintiff in support of his evidence examined himself as Petitioner Witness 1 and tendered his evidence by way of affidavit Exhibit PW1/A., Petitioner Witness 2, Lieutenant General Tejinderjit Singh Gill tendered his evidence by way of affidavit Exhibit PW2/A and deposed that he processed the extracts produced before the Court of Inquiry on behalf of the department as he was the Director General of Ordnance Services then., The affidavit of evidence of Ravinder Singh Jhelum was filed on behalf of plaintiff, but neither the witness was examined nor was the affidavit tendered in evidence., Petitioner Witness 4, Ex‑Major General P.S.K. Chaudhary who had faced general Court Martial proceedings for allegations made by Defendant Number 1, deposed in his affidavit of evidence Exhibit PW4/A that Defendant Number 4, Mr. Mathew Samuel was summoned as the prosecution witness by the Army during the Court Martial proceedings where he had admitted that on two occasions a bribe was offered, but the same was declined by the plaintiff., Defendant Witness 1, Shri Aniruddha Bahl in his affidavit of evidence DW1/A deposed on behalf of Defendant Numbers 1 to 4 that the transcriptions as submitted on behalf of the defendant reflect accurate recordings of the proceedings in the tape., Defendant Witness 2, Shri Gulshan Kumar Sachdev, the authorised signatory of Defendant Number 7 in his affidavit of evidence Exhibit DW2/A deposed that Licence Agreement dated 21.03.2001 was executed between Defendant Numbers 1 to 4 and Defendant Number 7 and that the present suit is not maintainable., The plaintiff in his arguments and written submissions has stated that the defendants have given a wrong explanation hiding from the general public the context of the meeting in order to target and tarnish the reputation of the plaintiff and gain monetary benefits and generate revenue from the sensationalisation of the news item. Moreover, in the broadcast the defendants have maliciously and deliberately added into the transcripts a false comment that in the next meeting with General Ahluwalia which had taken place ten days later, he accepted a token bribe of Rs.50,000, which was never delivered to him., It is argued that Defendant Number 4 has admitted the anomalies in the recorded conversation and the transcript that was subsequently prepared. He has further justified the clause in the transcript that Sayal goes near Ahluwalia and tried to hand him Rs.50,000, which he accepts later by arguing that Defendant Number 4 in his cross‑examination has admitted that the said comment was added by the defendants and that the amount was never delivered to the plaintiff. It is argued that it is the duty of the defendant to verify the authenticity of each and every news item before broadcasting and publishing the same. The defendants' callous act led to the initiation of a Court of Inquiry of the Indian Army against the plaintiff. The broadcasting of the story about the plaintiff was per se defamatory and the defendants have drastically failed to justify the comments against the plaintiff. A false version has been projected maliciously before the public knowing the same to be false. The defendants have maliciously targeted the plaintiff with wild allegations knowing fully well that the same are false and have circulated and broadcasted the same at an international platform thereby causing defamation and harm to the reputation of the plaintiff to every possible extent. The defendants are therefore liable for their defamatory acts against the plaintiff., Reliance was placed on the judgments in Mr. Parshuram Bararam Sawant versus Time Global Broadcasting Co Ltd and Another, Special Civil Suit Number 1984/2008, Pune; Sadasiba versus Bansidhar, AIR 1962 Orissa 115; The Editor, Rashtra Deepika Ltd and others versus Vinaya N.A., Indian Law Reports 2017 (3) Kerala 456; Ajay Agarwal versus Vinod Mehta and others, 102 (2003) DLT 774., Learned counsel on behalf of Defendant Number 1 argued that during the deposition of Petitioner Witness 1 the plaintiff, there was no corroborative evidence which attributes any cause of action against Defendant Numbers 1 to 4. The plaintiff has miserably failed to satisfy how the present suit for damages and that too for Rs.2 Crores is liable to be decreed in his favour. The plaintiff during his cross‑examination admitted that an inquiry was conducted against him by the Army authorities based on the expose. Further, on the basis of the evidence that was brought on record in the Court of Inquiry of the Indian Army, the plaintiff was awarded severe displeasure., Lastly, it was argued that no certificate under Section 65B of the Indian Evidence Act 1872 was provided by the plaintiff in support of the electronic evidence. Thus, the documents produced by the petitioner cannot be relied upon. Reliance was placed on the judgment of the Punjab and Haryana High Court in State of Haryana versus Naveen Kumar alias Monu and Another, 2018 SCC OnLine Punjab and Haryana 3248., Learned counsel on behalf of Defendant Number 7 argued that Zee Telefilms Ltd was entitled to exercise the fundamental right of freedom of speech and expression under Article 19(1)(a) of the Constitution of India and to report fairly the issues of national importance. The inquisitiveness and constant vigilance by media over government and public men is essential for good governance and it is asserted that the answering defendants had done fair reporting of the matter., Further, telecast of the tapes had led to setting up of Court of Inquiry of the Indian Army wherein Court Martial dismissals and administrative actions were meted out against several army officers involved in the entire episode. The Court of Inquiry had recommended dismissal of the plaintiff from service. However, the Chief of Army Staff in his discretion awarded Severe Displeasure (Recordable) again to the plaintiff, a fact that has been admitted by the plaintiff in his replication., It is further argued that no editorial comments whatsoever had been added by Defendant Number 7 and this has also not been substantiated by any evidence. The comments relied upon by the plaintiff were already part of the tapes provided to Defendant Number 7. The plaintiff admittedly was offered the bribe despite which he failed to escalate the same to higher officers or raise any complaint against Defendant Number 4, which speaks volumes about the plaintiff’s conduct and intentions., Moreover, the entire tape/recorded conversation of the plaintiff with Defendant Number 4, sans the disputed comments, is itself objectionable and illegal and unbecoming of an army officer. Therefore, no case of defamation is made out., Additional submissions have been made that the plaintiff has admitted in his cross‑examination that the Tehelka tapes were referred to by almost all the news channels and newspapers including Times of India, Hindustan Times, Indian Express, DD News and NDTV24 in their reporting. Once the telecast had already received wide publicity, it cannot by any stretch of imagination be termed as defamation by Defendant Number 7. It is thus argued that the plaintiff had miserably failed to discharge the onus of proving the defamation due to any act attributable to Defendant Number 7., Submissions heard. Issue‑wise findings are as under: Issue Number 1: Whether the plaintiff has been defamed as a consequent of the actions of the defendants? The plaintiff has claimed defamation by two sets of defendants; namely, defendants numbers 1 to 4 who had conducted Operation West End and recorded the interview of the plaintiff and other army officers, and the other set of defendants is Defendant Numbers 5 to 7 to whom the telecast rights were sold by defendants numbers 1 to 4, who telecasted them on their news channels., Before we consider on merit whether the plaintiff was defamed, it would be significant to first understand the concept of defamation and reputation. Meaning of the term defamation: According to Chambers Twentieth Century Dictionary, defamation means to take away or destroy the good fame or reputation; to speak evil or to charge falsely or to asperse., Salmond and Heuston on the Law of Torts, twentieth edition, define a defamatory statement as follows: A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him in the estimation of right‑thinking members of society generally and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of any ordinary, right‑thinking member of society., Halsbury’s Laws of England, fourth edition, volume 28, defines a defamatory statement as follows: A defamatory statement is a statement which tends to lower a person in the estimation of right‑thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to convey an imputation on him disparaging or injurious to him in his office, profession, calling, trade or business., Justice Cave in the case of Scott versus Sampson QBD 1882 defined it as a false statement about a man to his discredit. The same definition was applied in the judgments in Bata India Ltd. versus A.M. Turaz and Others 2013 (53) PTC 586 and Pandey Surindra Nath Sinha versus Bageshwari Pd. AIR 1961 Pat. 164 (1882) QBD 491., The concept of reputation: The intrinsic facet of defamation is harm to reputation or lowering the estimation of a person in the public domain. This makes it pertinent to understand what constitutes reputation. In Manisha Koirala versus Shashi Lal Nair and Others, 2003 (2) Bombay Civil Reporter 136, it was held that allusions would clearly exposit the innate universal value of reputation and how it is a cherished constituent of life and not limited or restricted by time., The distinction between character and reputation needs to be emphasized as it is reputation not character which the law aims to protect. Character is what a person really is; reputation is what he seems to be. One is composed of the sum of the principles and motives which govern his conduct. The other is the result of observation of his conduct, the character imputed to him by others. The right to reputation in its vital aspect is not concerned with fame or distinction. It has regard, not to intellectual or other special acquirements, but to that repute which is slowly built up by integrity, honorable conduct, and right living. One’s good name is therefore as truly the product of one’s efforts as any physical possession; in deed, it alone gives the value as sources of happiness to material possessions. It is, therefore, reputation alone that is vulnerable; character needs no adventitious support., Character and reputation are thus not synonymous, rather they may be directly contrary to each other. A man may have a good character and a bad reputation, being unjustly judged by the public; or he may have a bad character and a good reputation, standing in a false light before the public. In most cases, reputation reflects actual character. Since the right is only to respect so far as it is well founded, it is obviously not infringed by a truthful imputation. But the law justly deems any derogatory imputation false until it is shown to be true. Moreover, while the law requires a certain degree of proof to overcome this presumption, it also recognizes the human mind’s propensity to believe evil upon slight evidence; hence those representations which tend to influence public opinion in that respect are deemed to have done so. (I Kinkead on Torts, vol. I)., Lord Denning succinctly explained the distinction between character and reputation in Plato Films Ltd. versus Spiedel (1961) 1 All. E.R. 876 as follows: A man’s character, it is sometimes said, is what he in fact is, whereas his reputation is what other people think he is. If this be the sense in which you are using the words, then a libel action is concerned only with a man’s reputation, that is, with what people think of him: and it is for damage to his reputation, that is, to his esteem in the eyes of others, that he can sue, and not for damage to his own personality or disposition., In Om Prakash Chautala versus Kanwar Bhan and others (2014) 5 SCC 417 the Honorable Supreme Court succinctly explained that reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance for posterity. It is nobility in itself which a conscientious man would never barter with all the tea of China or for that matter all the pearls of the sea. When reputation is hurt, a man is half‑dead. It is an honour which deserves to be equally preserved by the downtrodden and the privileged. No one would like to have his reputation dented, and it is perceived as an honour rather than popularity., Similar observations were made by the Apex Court in the case of Vishwanath Agrawal versus Saral Vishwanath Agrawal (2012) 7 SCC 288, wherein it observed that reputation is not only the sail of life, but also the purest treasure and the most precious perfume of life. It is a revenue generator for the present as well as for posterity., In Umesh Kumar versus State of Andhra Pradesh and Another (2013) 10 SCC 591, the Supreme Court observed that good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property and as such it has been held to be a necessary element in regard to right to life of a citizen under Article 21 of the Constitution., Whether malice is an essential ingredient for defamation: In essence, any statement which has a tendency to injure the reputation of the person or lower him in the estimation of members of society results in loss of reputation and is consequently defamatory. The question which follows for consideration is whether the existence of wrongful intention to cause harm to the reputation of another may be termed as malice, and be considered as an essential ingredient to establish defamation., There has been much confusion in the law of defamation concerning malice as an ingredient of an offence. The use of the term may be traced to the ecclesiastical courts. By the canon of law, a bad intent called malitia was essential in injuria. These courts punished offences which were sinful because they were sinful, with the essential element being malitia. The matter was looked at from a moral, not from a legal point of view, to see if the speaking of a word was sinful. Thus, malice was the ground of temporal redress, though the jurisdiction of the temporal courts was not based upon malice. In other words, the common law adopted the presumption of malice as the gist of action., What prevailed in the thirteenth century is true even today to the effect that a false imputation upon a man’s character is always or necessarily malicious. Malice, from being considered a necessary ground of jurisdiction in the spiritual courts, came to be applied even after the civil courts acquired jurisdiction., Malice means malevolence or ill will; however, the law of defamation in the civil context provides that even the words spoken without ill will may be actionable and in such cases the malice is implied in the act of speaking or publication. This kind of malice which the law is said to imply is called legal malice or malice in law and is different from malevolence which is called malice in fact. The legal malice is said to exist in speaking defamatory matter without legal excuse, because such words are spoken wherein the law implies malice. It may thus be observed that legal malice is a fiction which is implied from the circumstances while actual malice is a question of fact which requires specific proof., In the Indian context the distinction between malice in fact and malice in law is evident in the two branches of law i.e. civil and criminal. Section 499 of the Indian Penal Code which defines defamation speaks of proof of malice in fact., Malice in fact is present when the ill intention translates into a deliberate act that injures another in an unlawful manner with the motive to cause such harm as explained in the case of West Bengal State Electricity Board versus Dilip Kumar Ray, (2007) 14 SCC 568. In Jeffrey J. Diermeier and Another versus State of West Bengal and Another (2010) 6 SCC 243, while deliberating on the aspect as to what constitutes defamation under Section 499 of the Indian Penal Code, 1860 the court held that there must be an imputation and such imputation must have been made with the intention of harming or knowing or having reason to believe that it will harm the reputation of the person about whom it is made. It would thus be sufficient to show that the accused intended or knew or had reason to believe that the imputation made by him would harm the reputation of the complainant, irrespective of whether the complainant actually suffered directly or indirectly from the imputation alleged., However, the Apex Court in the case of S.R. Venkataraman versus Union of India, (1979) 2 SCC 491, explained that actual malicious intention need not be established in civil proceedings as the malice in law is assumed from the commission of a wrongful act. Reliance was placed on Viscount Haldane’s reasoning for the presumption of malice in law in Shearer and another v. Shield, 1914 AC 808 which reads as follows: A person who inflicts an injury upon another person in contravention of the law is not allowed to say that he did so with an innocent mind; he is taken to know the law, and he must act within the law. He may, therefore be guilty of malice in law, although, as far as the state of his mind is concerned, he acts ignorantly, and in that sense innocently., Thus, the malicious intention of a person making an imputation is immaterial when a statement is untrue and is defamatory by its very nature as there is a presumption of malice in law., In the light of discussion of contours of defamation and the available defenses, the facts of this case may now be examined., Defamation by Defendant Numbers 1 to 4: The plaintiff has claimed that he has been defamed in Operation West End, wherein it had been wrongly broadcast and reported that he, being a senior officer of the Indian Army, had accepted a bribe., Defendant Number 3, Shri Aniruddha Bahl as Defendant Witness 1 has deposed by way of his affidavit Ex‑DW1/A that while working during March 2000 to May 2003 as Editor, Investigations Tehelka.com, i.e., Defendant Number 1, an undercover operation regarding corruption in defence procurement was undertaken under his supervision and directions. Shri Mathew Samuel, Defendant Number 4 was the main reporter of the story titled Operation West End, who was sent as a decoy for the interview with the plaintiff., Defendant Witness 1, Shri Aniruddha Bahl, in his cross‑examination has admitted that he was one of the promoters of Defendant Number 1 and the other three promoters were Tarun Tejpal, Minty Tejpal and Shankar Sharma. It was his brain child to expose the corruption in defence procurements which included domestic as well as international procurements. Defendant Number 4, Shri Mathew Samuel, was deputed who through one retired army officer Lieutenant Colonel Sayal was able to fix an interview with the plaintiff. The entire conversation was recorded by a hidden camera device. To his knowledge, two meetings took place between Defendant Number 4 and the plaintiff. Post the said meetings, Defendant Number 4 met the deposing witness on the same day or the next day. As and when the shot tapes came from the field, they were handed over to Defendant Witness 1 and were in his custody. The instructions to the field members were given by him and the operation was conducted under his supervision., Admittedly, Defendant Number 4 was able to arrange for the interview with the plaintiff who was a Major General and was in line to be picked up to the next rank of Lieutenant General on promotion, through Lieutenant Colonel Sayal who happened to be the former colleague and a friend of over twenty years of the plaintiff. He desired to call upon him at his residence. The plaintiff has deposed that Lieutenant Colonel Sayal without informing him, brought Defendant Number 4, Shri Mathew Samuel along and sought to explain his presence by stating that he was looking for a job opening and was considering taking up a job with Defendant Number 4, who was allegedly representing a company based in London under the cover name of Westend, London which was interested to sell an item Hand Held Thermal Imager to the Indian Army., The plaintiff as Petitioner Witness 1 has deposed that he had categorically informed Lieutenant Colonel Sayal that he does not deal with imports and introduction of new equipment and vendors. The plaintiff has asserted that during their conversation, he wanted to dissuade Lieutenant Colonel Sayal from pursuing such a career option by venturing into this assignment and he deliberately resorted to negative views. He also made contemptuous, sarcastic and non‑serious remarks in order to discourage Lieutenant Colonel Sayal. The plaintiff has further deposed that since he was not dealing with the procurement of equipment, he had given no advice as to how to proceed in obtaining an order. However, the facts have been distorted and insinuations have been implied against the plaintiff. The plaintiff, in fact, had tried to discourage Defendant Number 4 as well from dealing with the issue any further. The conversation in question was recorded by Shri Mathew Samuel, Defendant Number 4, while he accompanied Lieutenant Colonel Sayal to the house of the plaintiff on 02.11.2000., Defendant Witness 1, Shri Aniruddha Bahal has deposed in his affidavit of evidence Ex‑DW‑1/A that there was no doctoring of the tapes and in fact the forensic analysis commissioned by Honorable Justice Phukan Commission revealed that the tapes were genuine. Those tapes are in the custody of the Central Bureau of Investigation and have not been produced., The transcript of conversation in the tapes though was relied upon by the plaintiff as Exhibit PW1/A, but was de‑exhibited as Mark A on the objection taken by the defendants. Further, Defendant Witness 1, Shri Aniruddha Bahal has testified in his cross‑examination that Exhibit PW1/A was written by him and accurately reflects the proceedings which transpired. He has also admitted that PW1/D is the print out of the story from his website. The transcripts were thus admitted by Defendant Witness 1 making them admissible in evidence., The basic challenge is not to the recording/ preparation of the CD of the interview held between the plaintiff, Lieutenant Colonel Sayal and Defendant Number 4, Shri Mathew Samuel, and the same has also not been produced before this court. Neither the interview is denied nor the correctness of video recording has been challenged. Rather, the challenge has been made to the transcript of the interview which was prepared under the supervision of Defendant Number 3 as admitted by him in his cross‑examination and are available on their website., The admitted case of both plaintiff and defendant is that there was a conversation between the parties regarding the systemic corruption, which was recorded as under: Maj. Gen. Ahluwalia: \See it's a massive bloody system, there is no place for friends. There is no place for singleton. It requires very deep pockets. Nobody talks small, I am being very honest with you. Every single person is name dropping is the smallest part of the whole bloody transaction. And I also ended up with bottles of Black Label, Blue Label in this bloody business. Because it is easier to come and bloody talk: as I said, if you are going to talk about couple of crores, even to say 'good evening', you have to present that bloody 'good evening' properly. It's a 60 crore deal and it's a very important line I have to write there. My line is written today I take that line so it's a 60 crores deal, I am giving you a hypothetical figure, it's a 60 crores deal. How much will you say that you have to take now, tell me? Or for what amount should I put my neck out to write that important line? So it's not a Maurya Sheraton dinner (all of them laugh). Please understand it can't happen as an individual with one item. It's just can't I am trying to tell you why it can't happen. So you give me 10 lakh rupees. I don't know whether you get the order or not, I am not concerned. I have done my bit and there are 20 people in the chain like this. There is a man who has to go and do a certain evaluation. You have to feed him there. He does, he doesn't do it, he writes 'no'. He screws up the whole bloody deal. He screws up everything what has happened up till now.\, Comments had been added by Defendant Number 3 as admitted by him at point A to A1 in the transcript Mark A, which read as under: \Sayal goes near Ahluwalia and tries to hand him Rs.50,000, which he accepts later.\ Pertinently, Defendant Witness 1, Shri Aniruddha Bahal, has clarified that portion from point A to A1 in Exhibit PW1/A was his explanation of what happened during the interview., The other comment added by Defendant Number 3, Shri Aniruddha Bahal appeared at point B to B1. Defendant Witness 1 has admitted that comment from point B to B1 in the transcript was written by him based on his conversation with Shri Mathew Samuel. It reads as under: \Our next meeting with General Ahluwalia takes place 10 days later. Here he accepts a token bribe of Rs.50,000, which is never delivered to him.\, Defendant Witness 1, Shri Aniruddha Bahal has explained in his cross‑examination that he had given the equipment as well as Rs.50,000 to Defendant Number 4, Shri Mathew Samuel as Lieutenant Colonel Sayal had informed Defendant Number 4 that plaintiff had demanded the same. He has admitted that no such demand of Rs.50,000 was made from him personally. Once, no demand was made from him being the supervisor and the person in‑charge and responsible for conducting this Operation West End, it was the bounden duty of Defendant Number 1 to ascertain the authenticity and genuineness of the alleged demand of Rs.50,000 by the plaintiff., He has further admitted in his cross‑examination that the impression was created from the recorded conversation that the demand was made, yet at the same time he has admitted that this amount of Rs.50,000 was never accepted by the plaintiff.
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Defence Witness 1 in his cross-examination established that no demand whatsoever was made by the plaintiff during his conversation which was recorded on the tapes by Defendant Number 4 Mathew Samuel, at a time when Defendant Number 3 was not present. It was merely an inference drawn by Defence Witness 1 on the basis of his conversation with Defendant Number 4. From the admissions in the cross‑examination, it is evident that there was neither any demand made by the plaintiff nor any money was paid, yet the transcript contains comments from Defendant Number 3 that are proved to be unauthentic and a figment of imagination of Defendant Number 3., The plaintiff held the position of Major General in the Army and was a man of repute. There cannot be worse defamation and disrepute to a person of integrity and honour than a false imputation that he demanded and then accepted a bribe of Rupees 50,000. There was wide publicity of this transcript, which was admittedly put on the website of Tehelka.com by Defendant Number 1 and continues to remain on their website., Defendant Number 3 himself has admitted that the story was covered in various news, magazines and media. On one occasion, Defendant Number 3, on behalf of Defendant Number 1, admitted that he had prepared and published the transcripts in the public domain containing defamatory statements. The inference drawn by him is so manifestly cognitive that the defendants, at their peril, should be able to justify them in the sense in which the public understands them., Having concluded that defamatory statements were made against the plaintiff, the next consideration is whether the defendants have any permissible defence under law. In Ram Jethmalani vs. Subramaniam Swamy, 126 (2006) Delhi Law Times 535, while defining defamation as public communication which tends to injure the reputation of another, the Supreme Court of India explained that the defences available in a suit for defamation are truth, fair comment and privilege. Traditional defences to an action for defamation have now become fairly crystallized and can be compartmentalized into three categories: truth, fair comment and privilege. Truth, or justification, is a complete defence. The standard of proof of truth is not absolute but is limited to establishing that what was spoken was substantially correct. Fair comment offers protection for the expression of opinions; the standard of proof is not that the Supreme Court of India has to agree with the opinion, but whether the views could honestly have been held by a fair‑minded person on facts known at the time. Unlike the defence of truth, the defence based on fair comment can be defeated if the plaintiff proves that the defamer acted with malice. A similar situation arises with the defence of qualified privilege, which is designed to protect expression made for the public good. Protection of qualified privilege is lost if actual malice is established. In the public interest, absolute privilege is a complete defence. The rationale for restricting absolute privilege to Supreme Court of India proceedings or proceedings before tribunals that have the trappings of a civil court and parliamentary proceedings is that if the threat of defamation suits looms large over lawyers, litigants, witnesses, judges and parliamentarians, it would prohibit them from speaking freely and public interest would suffer., A possible defence that could have been taken by the defendants was that the statement was truthful. However, as discussed above in detail, these statements were a complete figment of imagination of the defendants and were never stated by the plaintiff, nor could such impressions have been gathered from the conversations recorded on the CDs. It was a blatant falsehood recorded in the transcripts that the plaintiff had accepted a bribe of Rupees 50,000 to his knowledge., The second defence taken by the defendants is that Operation West End was undertaken with public good in mind to expose rampant corruption in defence procurement, whether done nationally or internationally. The aim and objective may have been in the public good, but it does not give any right to any agency to create or attribute false statements to the plaintiff merely to create sensationalisation amongst the general public. The defendants have relied upon Howard EL vs Mull M. and R. Rajagopal vs State of Tamil Nadu to argue that there must be constant vigilance over the exercise of governmental power by the press and media. When a fair comment is made on a public servant for the public good, it is sufficient if the writer or publisher honestly believes the facts stated as true and has not made any willful misrepresentation of any fact., In Silkin v. Beaverbrook Newspapers Ltd. and another (1958) 2 All England Reports 516, of the Queen's Bench Division, following observations of Diplock J, it is significant that I have been referring, and counsel in their speeches to you have been referring, to fair comment, because that is the technical name given to this defence, or, as I should prefer to say, the right of every citizen to comment on matters of public interest. The expression 'fair comment' is a little misleading. It may give the impression that the jury has to decide whether it agrees with the comment, whether it thinks that it is fair. If that were the question, the limits of freedom which the law allows would be greatly curtailed. People are entitled to hold and express freely on matters of public interest strong views, views which some of you, or indeed all of you, may think are exaggerated, obstinate, or prejudiced, provided—and this is the important thing—they are views which they honestly hold. The basis of our public life is that the crank, the enthusiast, may say what he honestly thinks just as much as the reasonable man or woman who sits on a jury, and it would be a sad day for freedom of speech in this country if a jury were to apply the test of whether it agrees with the comment instead of applying the true test: was this an opinion, however exaggerated, obstinate or prejudiced, which was honestly held by the writer?, The question to be addressed is not whether the comments made were fair but whether the opinion as expressed was honestly held by the writer. The focus is not on the readers or third parties but on the writer and his belief and intent, which has been defined as good faith., It is pertinent to broach upon the judgment of the Supreme Court of India in Chaman Lal vs State of Punjab, (1970) 1 Supreme Court Cases 590, wherein it was expounded that public good is a question of fact, while good faith has to be established as a fact. Good faith requires the exercise of care, caution and prudence. When the imputations or insinuations against a person are not proved, they cannot be considered as a statement made in good faith as they are baseless in the absence of proof., In Arnold vs King Emperor, 1914 AC 644, the responsibility of a journalist was expressed by Lord Shaw as follows: The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go, so also may the journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to this power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments, is as wide as, and no wider than that of any other subject. No privilege attaches to his position., In Sewakram Sobhani vs R. K. Karanjia, Chief Editor, Weekly Blitz & Others, (1981) 3 Supreme Court Cases 208, it was observed that the imputations made in the publication were of such a nature that they would lower the reputation of the appellant and would per se be defamatory if not made in good faith for the cause of public good. It was held that journalists do not have any greater freedom or special privilege in society. When an assertion of fact is made by a journalist, which is not a fair comment, the journalist must be in a position to justify such assertions., Further, in The Editor, Rashtra Deepika Ltd. and Others vs Vinaya N. A., it was found that a fair comment cannot justify a statement which is untrue. The defence of good faith is applicable only when there is some truth to the comment or there is a genuine effort to tell the truth. Thus, any comment made without any reasonable grounds cannot be protected under good faith., The comments recorded by Defendant Number 3 in Exhibit Plaintiff Witness 1/A cannot be regarded as a fair comment as the same has been asserted as a fact by Defendant Numbers 1 to 4. Conspicuously, the defendants have been unable to establish their good faith while making imputations against the plaintiff in points A to A1 and B to B1 in Exhibit Plaintiff Witness 1/A, due to their inability to prove the same. The objective may have been public good, but from the manner in which the publication was made by Defendant Numbers 1 to 4, it is abundantly clear that it was not a true reporting of the incident. The comments have been added by Defendant Number 3, which is a complete falsehood to his very own knowledge as can be discerned from the cross‑examination of Defence Witness 1. It does not require any imagination to understand the wide ramifications of alleging corruption against a senior Army Officer and the consequences thereof., It is not in dispute that the consequence of such reporting was that a Court of Inquiry was initiated against the plaintiff and other Army Officers. While the fate of others may not be relevant for the case of the plaintiff, admittedly, in the case of the plaintiff the Court of Inquiry was of the opinion that further retention of service of the plaintiff was not desirable. However, the Chief of Army Staff found that no misconduct was proved against the plaintiff and thus issued a severe displeasure., A defence has also been set up by the defendants that the very fact that he was held guilty and awarded the punishment of severe displeasure corroborates the involvement of the plaintiff and vindicates the position of the defendants. Again, this argument of the defendants is specious and a desperate attempt to cover their follies. In the Final Report of the Court of Inquiry, Exhibit Plaintiff Witness 1//D1, it was observed as follows: 8. AND WHEREAS, the reply submitted by the said Major General M S Alhuwalia and the issues raised therein have been duly considered by the undersigned. It is considered that under the circumstances the General Officer should have avoided this second meeting firmly and was duty bound to report the matter to his superior officer when he was induced with an offer of bribe. To that extent the lapses on the part of the General Officer stand established. However, the meetings apparently had not been planned by the General Officer in advance. It mitigates the misconduct on the part of the General Officer. The General Officer should have been extra cautious while interacting with persons of doubtful credentials for the second time. However, since he was dissuasive in accepting any illegal gratification, the gravity of his offence is considerably reduced. 9. AND WHEREAS, the undersigned is satisfied that the said Major General M S Alhuwalia is partly blameworthy for the lapse mentioned in the SCN but the lapses are not grave enough to justify termination of service of the said Major General M S Alhuwalia and awarding severe displeasure (recordable)., The Court of Inquiry gave a clean chit to the plaintiff and severe displeasure was awarded only because of his conduct of agreeing to meet with people of doubtful credentials. It is a service discipline which was questioned and not the integrity or character of the plaintiff. To borrow the triple test expounded by Carter‑Ruck on Libel and Slander, Fifth Edition, i.e., this false statement about the plaintiff to his discredit exposed him to hatred, ridicule, or contempt, or caused him to be shunned or avoided, or had a tendency to injure him in his office, professional or trade and consequently tended to lower the plaintiff in the estimation of right‑thinking members of society., The comments added by Defendant Number 3 are per se false and defamatory to the knowledge of Defendant Numbers 1 to 4. There cannot be any more blatant case of causing serious harm and injury to the reputation of an honest Army Officer, who despite all the endeavours of the defendants, had refused to accept any bribe., Thus, the evidence on record and, in fact, the admissions made on behalf of Defendant Numbers 1 to 4 establish a case of defamation against the plaintiff, entitling him to damages. Defamation by Defendants Numbers 5 to 7:, Defence Witness 1, Aniruddha Bahal, has admitted in his cross‑examination that a contract Exhibit Defence Witness 1/D5‑7(1) dated 21.03.2001 was entered into between Buffalo Network Private Limited, Defendant Number 1A, owner of Defendant Number 1, and M/s Zee Television, Defendant Number 7. Pursuant to this agreement, the owner of Defendant Number 1 supplied transcripts and tapes of Operation West End to Defendant Number 7. In the affidavit Exhibit Defence Witness 1/A, Mr. Aniruddha Bahal, Defendant Number 3, referred to the tapes as genuine. Defence Witness 1 has further admitted that the transcripts of Operation West End were available on the website Tehelka.com for public viewing. He has also admitted that several newspapers covered the investigation titled Operation West End., Defence Witness 2, Shri Gulshan Kumar Sachdev, who appeared on behalf of Defendant Number 7, in his affidavit of evidence Exhibit Defence Witness 2/A explained that Defendant Number 7 is in the business of broadcasting various TV channels and Zee TV is also one such channel. He deposed that Defendant Number 7 only telecast the programme Operation West End provided to it by way of tapes by Defendant Number 1A on an assurance that there was nothing defamatory in the tapes and they did not contain any legally objectionable material. As per the terms of the licence agreement, the tapes were four hours long and were telecast by Defendant Number 7 on its channel. No objection whatsoever was taken to the telecast by Defendant Numbers 1 to 4., Defence Witness 2 has further deposed that they relied upon the assertions of Defendant Numbers 1 to 4 that the tapes were genuine and personally did not authenticate the tapes given by Defendant Number 1A. As already discussed, the plaintiff has not challenged the contents of the video tapes as derogatory or defamatory. The tapes containing the interview handed over to Defendant Numbers 5 to 7 have not even been produced or exhibited in the evidence. Even if the tapes were played on the channels of Defendant Number 7, including Zee TV, there is nothing brought on record either by way of tapes or any other evidence that the contents of the cassettes were defamatory in any manner. Neither the tapes nor the recording of the telecast has been produced before the Supreme Court of India and hence it cannot be determined if they contained any defamatory material., The entire case of the plaintiff is that only the comments inserted by Defendant Number 3, the Supervising Agency, were defamatory and created a wrong impression of corruption against the plaintiff. There being no cogent evidence produced against Defendant Numbers 5 to 7 that their telecast was derogatory or defamatory causing loss of reputation to the plaintiff, it is neither the case of the plaintiff nor has been proved by evidence that the comments admittedly inserted by Defendant Number 3, Aniruddha Bahal, in the transcripts were published in any manner by Defendant Numbers 5 to 7 as their own editorial comments., The plaintiff has not been able to prove any act of defamation on the part of Defendant Numbers 5 to 7., The issue is answered accordingly, and Defendant Numbers 1 to 4 are held to have committed an act of defamation against the plaintiff. Issue No.2: If the answer to the aforesaid is in the affirmative, whether the plaintiff is entitled to the reliefs claimed?, Having concluded that the act of defamation has been shown to have been committed by Defendant Numbers 1 to 4, the other question which arises is the quantum of damages payable to the plaintiff. Nature and extent of injury., What needs to be considered now is the nature and extent of injury to invite an action for defamation. Fundamentally, injury to reputation is the gist of the action; evidence of loss of reputation is necessary only where, without some evidence, it would not be clear that reputation had in fact been injured. But the injury must be appreciable, that is, capable of being assessed by the Supreme Court of India. Hence no action lies for mere vulgar abuse, or for words which have inflicted no substantial injury, as espoused in the maxim de minimis non curat lex (the law does not concern itself with trifles or with insignificant or minor matters)., The application of this maxim was explained in Chaddock v. Briggs, (1916) 13 Mass. 248: Some words, however, although spoken falsely and maliciously, are not of a nature to produce actual injury because, being common terms of reproach, they are more indicative of the temper of the speaker than of any specific defect of character in the person of whom they are spoken; it cannot be presumed that they have produced any injurious effect; and therefore, to make such words the basis of an action it is necessary to allege and prove that some damage actually followed the speaking of the words., Whenever words are per se defamatory and on invasion of a right (as of reputation) on their face, no inquiry is allowed into the character of actual harm suffered and no further proof of damages is required. This class of defamation is actionable per se; i.e., they invade a simple or absolute right. On proof of publication of such words and in the absence of any defence, the plaintiff must recover at least nominal damages for the injury to his reputation caused by the defendant, whether such injury was malicious or accidental, although malice may be shown to entitle him to increased damages., The plaintiff in his testimony has deposed that he served a legal notice Exhibit Plaintiff Witness 1/P dated 27.08.2001 to the defendants seeking an apology, but it met only with refusal. The apology has become irrelevant as the plaintiff has already suffered the Court of Inquiry and has already been punished with severe displeasure qua his conduct, which was held to be unbecoming of an Army Officer. The reputation of the plaintiff has suffered as he not only faced lowering of estimation in the eyes of the public but his character also got maligned with serious allegations of corruption which no subsequent refutation can redress or heal. Much time has passed and the plaintiff has already lived with ill fame for more than 23 years. Considering the enormity of the nature of defamation, an apology at this stage is not only inadequate but meaningless., Considering the entire scenario and the loss of reputation of the plaintiff which was publicised through the website Tehelka.com, Rupees 1,00,00,000 (one crore) is awarded as damages payable by Defendant Numbers 1 to 4 (considering the rights to the tapes had been assigned to Defendant Numbers 5 to 7 for Rupees 50 lakhs by Defendant Numbers 1 to 4). The issue is decided accordingly., Issue No.3: Whether Defendant Number 7 has exceeded its right under Article 19(1)(a) of the Constitution of India? Issue No.4: Whether Defendant Number 7 has acted with due care and caution? Since the plaintiff has not been able to prove any evidence against Defendant Number 7, these issues do not merit any discussion and are accordingly decided., In view of the findings on Issue No.1 and 2, the suit is dismissed against Defendant Numbers 5 to 7, and damages in the sum of Rupees 2,00,00,000 (Rupees Two Crores) are awarded to the plaintiff to be paid by Defendant Numbers 1 to 4 for having caused defamation, along with costs of the suit.
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114/7 CRWP-8809 of 2021 Rohit Kumar v. State of Union Territory of Chandigarh and others 2) CRWP-5888 of 2021 Aaftab and another v. State of Haryana and others 3) CRWP-6017 of 2021 Kavita and another v. State of Punjab and others 4) CRWP-9892 of 2021 Anjali and another v. State of Haryana and others 5) CRWP-10527 of 2021 Sunpreet Singh and another v. State of Punjab and others 6) CRWP-12052 of 2021 Bilal and another v. State of Haryana and others 7) CRWP-941 of 2022 Rajwinder Kaur and another v. State of Punjab and others, Present: Mr. Vinod K. Kanwal, Advocate, for the petitioner in CRWP-8809 of 2021. Mr. Varinder Basa, Advocate, for the petitioners in CRWP-941 of 2022. Mr. Satya Pal Jain, Additional Solicitor General of India, with Ms. Saigeeta Srivastava, Central Government Counsel for Union of India. Ms. Vasundhara Dalal, Additional Public Prosecutor, Union Territory of Chandigarh. Mr. Neeraj Poswal, Additional Advocate General, Haryana. Mr. Rana Harjasdeep Singh, Deputy Advocate General, Punjab. Ms. Naveen Malik, Advocate, for respondent no.5 in CRWP-8809 of 2021., All these petitions had been clubbed together in view of the fact that the petitioners herein are seeking protection of life and liberty upon them being in live-in relationships with each other, with the following order having been passed on 15.09.2021 in CRWP-8809 of 2021:, Learned counsel for the petitioner submits that the petitioner and the alleged detenu, whose name is given in paragraph 2 of the petition, are in a live-in relationship with each other, both being of the age of majority, but that respondents no.5 to 8, with the assistance of respondent no.4 (shown to be an Assistant Sub Inspector of Police), have forcibly taken her away from the custody of the petitioner and therefore, with the girl being an adult, her custody deserves to be restored., First of course, it is to be noticed that there is no firm proof of the age of the petitioner at all other than a copy of his Aadhaar Card annexed as Annexure P-1 with the petition, which is no firm proof of age in view of the fact that no firm proof of age is usually asked for at the time of issuance of such cards., Other than that, even before notice of motion has been issued, Ms. Vasundhara Dalal Anand, Additional Public Prosecutor, Union Territory of Chandigarh, has appeared on advance notice of the petition having been received by respondents no.1 to 3. She submits that the alleged detenu has already made a statement in Police Station, Sector 34, Chandigarh (as recorded by Assistant Sub Inspector Durgesh), to the effect that she is living with her parents, i.e. respondents no.5 and 6, of her own will and that she is studying in a college in Karnal, and does not wish to live with the petitioner., Obviously, with the presence of learned Additional Public Prosecutor, Union Territory of Chandigarh, issuance of formal notice to respondents no.1 to 3 stands waived and therefore, without issuing notice to respondents no.4 to 8 at this stage, the Senior Superintendent of Police, Union Territory of Chandigarh, is directed to depute a lady Sub Inspector along with two other lady police officials, who would take the alleged detenu to the learned Area Magistrate concerned, where she would record a statement as to whether she wishes to stay with the petitioner or with respondents no.5 and 6., It is made absolutely clear that at the time that she is taken to the court of the learned Area Magistrate, neither would respondents no.4 to 8 nor any other person from her family, nor the petitioner, accompany her even to the court complex, i.e. she would be taken only by herself to the court complex by the police officials, and onto the court of the learned Area Magistrate, where she would record her statement with the Magistrate as she wishes, with regard to with whom she wishes to reside., She would also take with her documentary proof of her age; and if the learned Area Magistrate finds that she is, as per said documentary proof, below the age of 18 years, even if then she expresses her wish to reside with the petitioner, she would be returned to the custody of her parents, and if she is above the age of 18 years and states that she wishes to reside with the petitioner, then a report in that regard would be made to the Delhi High Court before the next date of hearing, but with her to be returned to her parents' custody at this stage, till at least the age of the petitioner is determined., In view of the fact that the petitioner is residing in Karnal (as per the memo of parties), notice is also issued to respondents no.9 and 10, i.e. the Superintendent of Police, Karnal and the Station House Officer, Police Station Assandh, with Mr. Neeraj Poswal, Additional Advocate General, Haryana, accepting notice at the asking of the Delhi High Court. Copies of the petition be handed over to the learned Additional Public Prosecutor, Union Territory of Chandigarh as also to the learned Additional Advocate General, Haryana, by learned counsel for the petitioner today itself., The Superintendent of Police, Karnal, is also directed to determine from the educational institution that the petitioner last studied in, his date of birth as per documentary evidence. Naturally, if he is found to be less than 18 years of age, counsel for the petitioner would be required to address arguments as to how this court would permit him, even as per the wish of the alleged detenu (if she expresses that wish at all), to be in a live-in relationship with the alleged detenu., Adjourned to 24.09.2021., It is to be noticed specifically that upon a copy of the petition having been handed over to the learned Additional Public Prosecutor, Union Territory of Chandigarh, Ms. Anand, she submits that in fact even in the petition it is not stated that the petitioner and the alleged detenu ever lived together in a live-in relationship, but only that they wished to do so, and upon the alleged detenu having come to a park, she had been taken away from there on a complaint made at the police beat box in Sector 46, Chandigarh, (with learned counsel for the petitioner however submitting that in fact she agreed to live with the petitioner)., Today, Mr. Satya Pal Jain, learned Additional Solicitor General of India, informs the Delhi High Court that as per his instructions in fact an amendment to the Prohibition of Child Marriage Act, 2006, has been proposed, with a Bill already produced in Parliament for that purpose, to bring the marriageable age for females also up to 21 years of age (from 18 years), to bring them on par with males. However, as regards live-in relationships, no such bill has been introduced so far., As already observed by the Delhi High Court in the aforesaid order (and in subsequent orders passed in different cases), the problem which is now coming up before courts is that adolescents between the ages of 18 and 21 years of age are coming up seeking protection of life and liberty upon being in live-in relationships or seeking to be in live-in relationships with protection to be granted to them. No Act governs any such relationship and once a person has attained majority in terms of the Majority Act, 1875, (i.e. 18 years of age), it would be difficult for a court to refuse such protection; and therefore the Union of India (in the Ministry concerned) would file a response to the aforesaid predicament, by way of an affidavit of at least a Joint Secretary to the Government of India, in the Ministry concerned, as to what is proposed, to try and ensure that many adolescents with impressionable minds (not actually fully matured though they otherwise, technically, are of the age of majority in terms of the aforesaid Act), do not start living together and later start regretting such decisions, obviously also causing trauma to their parents and family., At this stage, learned counsel for the petitioner in CRWP no.8809 of 2021 submits that the petitioners may be allowed to withdraw the petition itself, as the petitioners and respondents no.5 to 8 have reached a settlement in the matter, with the petitioners having decided not to live together as yet at least. The said petition is consequently ordered to be dismissed as having been withdrawn, with the affidavit to be filed on behalf of the Union of India, to be so filed in any other connected petition. Adjourned to 21.03.2022., Naturally, as regards interim orders were already passed in the remaining cases, they would continue to operate till the next date of hearing., CRWP-941 of 2022 On 07.02.2022 the following order had been passed by the Delhi High Court: Case heard via video conferencing. By this petition, the petitioners seek protection of life and liberty. They are stated to be in a live-in-relationship, with petitioner No.1 shown to be 24 years of age and with petitioner No.2 shown to be 20 years of age and with petitioner No.1 stated to be otherwise married to respondent No.4 and with respondents No.5 to 8 shown to be her brothers-in-law., Learned counsel submits that petitioner No.1 not being in a good relationship with respondent No.4, she decided to leave his company and to start living with petitioner No.2 who is otherwise of the age of majority., Notice of motion. Mr. Saurav Khurana, Deputy Advocate General, Punjab, accepting notice at the asking of the Delhi High Court on behalf of respondents No.1-3, with respondents No.4 to 8 to be served by normal process., Though petitioner No.2 is not of marriageable age in terms of the provisions of the Hindu Marriage Act, 1955 as also the provisions of the Child Marriage Act, 2006, yet, firstly of course this being a petition seeking protection of life and liberty which is a basic fundamental right enshrined in Article 21 of the Constitution of India, and secondly, Section 497 of the Indian Penal Code has been struck down as being unconstitutional by the Supreme Court, in Joseph Shine v. Union of India (Writ Petition (Criminal) No.194 of 2017 decided on 27.09.2018), the Senior Superintendent of Police, Amritsar Rural and Station House Officer, Police Station Zhander, District Amritsar are directed to ensure that the life and liberty of the petitioners are duly protected., Adjourned to 07.03.2022. To be heard along with CRWP No.8809 of 2021, with all such petitions to be listed in the urgent motion list on that date., Learned State counsel submits that as per his instructions, the petitioners are of the same age as is shown in the memo of parties (24 years of age and 20 respectively)., Learned counsel for the petitioners submits that in fact even in this case the petitioners have settled their differences with respondents no.4 to 8 and do not wish to pursue this petition. Dismissed as withdrawn., Naturally, if the petitioners perceived any threat in future, they would approach the Senior Superintendent of Police, Rural Amritsar, who would ensure that their lives and liberty are duly protected, as per law. Disposed of as above., Counsel for the petitioners in the other petitions (except in CRWP no.8809 of 2021 and 941 of 2022) not having appeared, adjourned to 21.03.2022. A copy of this order be also placed on the file of the other connected matters.
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Date: 19 October 2021\nThe Secretary, State Bar Council of Uttar Pradesh, 19, Maharshi Dayanand Marg, Vivek Vihar Colony, Civil Lines, near AGO office, Alka Puri Colony, Prayagraj, Uttar Pradesh 211001\nSub.: Direction to Uttar Pradesh Bar Council to withdraw the call for abstinence from judicial work by lawyers across the State on 20 October 2021., Sir, as per direction of Honourable Chairman, Bar Council of India, I am to inform you as follows: The Bar Council of India is informed that the Bar Council of Uttar Pradesh has asked lawyers across the state of Uttar Pradesh to abstain from judicial work on 20 October 2021, that is Wednesday, in protest against the killing of Late Advocate Shri Bhupendra Pratap Singh inside the premises of the Shahjahanpur Civil Court on Monday., The Bar Council of India strongly condemns and expresses its deep anguish at the unfortunate and brutal incident. The Bar Council of India will mention the same in the Supreme Court of India and at all other forums needed in order to have a fair, impartial and immediate investigation into the incident to book the guilty and to punish them in accordance with the provisions of law., However, even in times of such distress, it is reminded that abstinence/strike or boycott will not solve the problem. In fact, these frequent strikes further complicate the issues and weaken the State Bar Councils, as strikes are considered illegal by the Honourable Supreme Court of India when they concern advocates, who are considered officers of the court and part of the judicial machinery., Our profession is considered a noble profession and the professional work rendered by us is unique and for the benefit of the common man, including aggrieved parties who come to advocates in the hope that advocates will be able to get them justice when all doors are closed for them. Representations of any nature, as planned to be given to the Sub-Divisional Magistrate by our sister and brother advocates of the concerned tehsil, may be handed over. However, there should not be interference in the judicial and court work., At this juncture, the Bar Council of India, apart from assuring to take up this brutal issue with the top authorities, will also try its level best to have the Advocates Protection Act implemented at the earliest. The courts all over the country, especially in Uttar Pradesh, as requested, should have a mechanism to prevent entry of any person with firearms inside court premises and all possible entry and exit points to the court premises should be manned and guarded properly. The Bar Council of India will certainly raise and take up this issue and try to have such a mechanism put in place by the respective State Governments., Even the claim for compensation for the deceased brother advocate shall be supported by the Bar Council of India; however, dear brothers and sisters of the fraternity should not abstain from court work, as it is against the directions of the Honourable Supreme Court of India and, in fact, the same shall further make it difficult to fight for our rights with conviction when we ourselves are violating court orders. Therefore, the Uttar Pradesh Bar Council is forthwith directed to withdraw the call for abstinence from judicial work by lawyers across the state on 20 October 2021., This is for your information and necessary compliance. Thank you.
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Khalid Anis Ansari, Petitioner, versus Union of India and others, Respondents. Janhit Abhiyan, Petitioner, versus Union of India and others, Respondents., Intervenor No. 1 is the National Convenor of the National Coalition for Strengthening the Prevention of Atrocities Act (NCSPA), a forum of more than 450 Dalit and Adivasi civil society organisations, community leaders, activists, journalists and academics from eighteen states of India, committed to ending caste‑based discrimination. Intervenor No. 1 is also the General Secretary of the National Dalit Movement for Justice, which was formed as part of the National Campaign for Dalit Human Rights. Intervenor No. 2 is the Founder and National President of the All India Dalit Rights Federation, whose main objects are to promote the ideologies of Dr. B.R. Ambedkar and other thinkers, and to represent the grievances of the Scheduled Castes, Scheduled Tribes and backward classes., The intervenors contend that the One Hundred Third Constitutional Amendment Act provides for reservation of ten percent seats in public and private educational institutions and in public employment for Economically Weaker Sections of citizens other than Scheduled Castes, Scheduled Tribes and Other Backward Classes. They argue that this creates a reserved category that specifically excludes Scheduled Castes, Scheduled Tribes and Other Backward Classes, thereby discriminating against them on the basis of caste. Article 15(6) and Article 16(6) provide for reservation to Economically Weaker Sections excluding Scheduled Castes, Scheduled Tribes and Other Backward Classes. The effect of the exclusion is that communities historically recognised as needing promotion are now denied benefits solely because of their caste., The intervenors submit that the One Hundred Third Amendment alters the Equality Code of the Constitution and thus violates the basic structure of the Constitution. The Equality Code is embodied in Articles 14, 15, 16 as well as Articles 17, 46, 332, 335, 338 and 340, which provide that all persons shall be treated equally and shall have equal opportunity, and prohibit discrimination on the basis of caste, race, religion, sex or place of birth. While the Code permits positive discrimination for historically discriminated, backward and under‑represented classes, the amendment seeks to create a new category based solely on economic criteria, which is not contemplated by the structural principles underlying the Constitution. Consequently, the amendment is contrary to the Equality Code., In Indira Sawhney v. Union of India, the Supreme Court of India held that reservation must be limited to classes that are socially and educationally backward, and that the total reservation should not exceed fifty percent. The Court observed that reservation based solely on income or property would alter the width and identity of Articles 15 and 16 and would constitute a fraud on the Constitution. Subsequent judgments, including M. Nagaraj v. Union of India, Jaishri Laxman Rao v. Chief Minister, Maharashtra and Union of India v. Ramesh Ram, reaffirmed the fifty‑percent ceiling and stressed that any relaxation must be in exceptional circumstances and with extreme caution. The One Hundred Third Amendment, by adding ten percent for Economically Weaker Sections on top of the existing forty‑nine point five percent for Scheduled Castes, Scheduled Tribes and Other Backward Classes, pushes the total reservation well above the constitutional limit., The Supreme Court of India has unequivocally held that economic criteria alone cannot determine a backward class (Indira Sawhney, para 799). Poverty or low income is not a substitute for social and educational backwardness, which is the constitutional basis for reservation under Articles 15(4) and 16(4). Therefore, providing reservation on the sole basis of a family income of less than eight lakh rupees per annum, without reference to social and educational backwardness or inadequate representation, is unconstitutional. The amendment also violates the principle of substantive equality, as it places socially and educationally forward groups on the same footing as historically disadvantaged groups, thereby infringing the right to equality of opportunity guaranteed by Article 16(1). Consequently, the intervenors pray that the One Hundred Third Constitutional Amendment Act be declared unconstitutional for violating the basic structure of the Constitution., The intervenors further submit that the amendment disregards the recommendations of the National Commission on Denotified Tribes, which advocated a ten percent reservation for denotified and nomadic tribes that have faced historic injustice and stigma. By granting reservation only to Economically Weaker Sections of the upper castes and excluding the economically weaker sections of low castes, the amendment reinforces existing systemic dominance of the upper castes and leads to unequal participation and skewed representation, which is antidemocratic and violative of the basic structure doctrine. Accordingly, the amendment should be struck down as ultra vires the Constitution.
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