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id_122	1	Although initially a person could change their jati, as per historians around 500 B.C., the jati system became more rigid. Persons born into a particular jati remained in that jati till their death. This ensured that those in the upper echelons of the caste system maintained systemic advantages for their descendants. The lower castes were denied fundamental human rights and dignity, were not permitted to dwell near upper castes, were not allowed to touch people from other castes, and were ostracized from mainstream education and employment for centuries., It is to remedy this centuries‑long oppression that affirmative action in the nature of reservations was contemplated by the framers of our Constitution. The Constituent Assembly was conscious that a clean slate post‑independence was impossible because a vast section of Indians had been subject to centuries of injustice. The first Parliament, many members of which were also members of the Constituent Assembly, recognized the need for a general enabling provision in Article 15 to bring out schemes in favour of the backward classes beyond matters of employment, which were already covered in Article 16. Consequently, the Constitution (First Amendment) Act, 1951 was passed, inserting clause (4) to Article 15., It should be noted that the State of Tamil Nadu has been at the forefront of affirmative action to alleviate social backwardness. Even before the adoption of the Constitution, the State issued Government Order No. 613, Public Department, dated 16 September 1921, making reservations for Backward Classes. This Government Order was the first of its kind in India and was termed the communal Government Order. The State issued further Government Orders to make additional reservations in employment until the adoption of our Constitution., The petitioner has challenged the impugned 103rd Constitution Amendment Act, 2019 on the following grounds: Reservations cannot be based on economic criteria. It is now well settled that reservations are an exception to the equality clause under Article 14 and the non‑discrimination clause in Article 15(1). Reservations have been upheld by the Supreme Court of India only on the ground that they are necessary to offset centuries of oppression and social ostracisation. Granting reservations to upper castes irrespective of their present economic status is a mockery of the concept of reservations., In Indira Sawhney (1992) Supp (2) Supreme Court Cases 217 (Constitution Bench), the Supreme Court of India held in Paragraph 627 that reservation for backward classes seeks to achieve the social purpose of sharing in services which had been monopolised by a few of the forward classes. Such affirmative actions have been upheld because the social and educational difference between the two classes furnished a reasonable basis for classification. The same cannot be said for rich and poor; indigence cannot be a rational basis for classification for public employment. Therefore, the present amendments fall foul of the ratio in Indira Sawhney., Paragraphs 207‑211 and 208 of the same judgment, as expressed by Justice Ratnavel Pandian, hold that economic status cannot determine backwardness and that economic status is a see‑saw factor. The concept of reservation is to achieve social justice, not economic justice. Reservations are constitutionally valid only when made to achieve social equality and are not constitutionally valid when made on economic factors, as per the judgments of this Court. It is well settled that reservation cannot be a poverty‑alleviation scheme; it is a remedy for the ill effects of historical discrimination., The sine qua non for every affirmative action is discrimination. Scheduled Castes, Scheduled Tribes and Backward Classes suffered systematic and institutional discrimination which handicapped these communities. Jobs and education were reserved solely for the upper castes, isolating other backward classes to a destitute state. One could improve economic status but not social status due to caste. The indigents from the upper caste did not undergo such systemic discrimination to warrant positive discrimination., The 103rd Amendment Act prescribes breaching the 50 percent limit, which cannot be breached under any circumstances except if a law is protected under the Ninth Schedule. Through Economically Weaker Sections reservations, the Union has breached the 50 percent outer limit set by the Supreme Court of India in granting reservations. In Indira Sawhney the Supreme Court of India held that the power conferred by Article 16(4) should be exercised in a fair manner and within reasonable limits, stating that reservation shall not exceed 50 percent of the appointments or posts, barring certain extraordinary situations (see Paragraphs 518, 807‑814). Similarly, in Dr. Jaishri Lakshmanrao Patil v. Chief Minister and Others (2021) 8 Supreme Court Cases 1 (Constitution Bench), the Court reiterated that reservation under Article 16(4) should not exceed 50 percent., It is to be noted that the 103rd Amendment Act has not been moved to the Ninth Schedule to obtain further protection from judicial review. Therefore, it must be tested on the regular parameters of challenge. Granting Economically Weaker Sections reservations is not a reasonable classification. In State of Kerala v. N.M. Thomas (1976) 2 Supreme Court Cases 310, the Supreme Court of India opined that discrimination is the essence of classification. A classification must be founded on substantial differences which distinguish persons grouped together from those left out, and such different attributes must bear a just and rational relation to the object sought to be achieved (Paragraph 24)., Just because a class of persons is poor or economically backward, the same cannot be construed as discrimination. Compared with socially backward classes who were handicapped due to rampant historical discrimination, the Economically Weaker Sections did not face any systemic social discrimination to classify them as one group. Moreover, a person may be poor now but could have been rich one generation ago or vice versa, whereas the stigma of caste persists across generations. Thus, the reservations envisaged by the 103rd Constitutional Amendment violate the conditions for reasonable classification laid down by the Supreme Court of India in Thomas., The impugned amendments violate the basic feature of the Constitution. When Articles 14 and 15(1) are core to the basic feature and an exception to them in the form of reservations has been permitted only on the basis of social backwardness, the impugned acts fall foul of the basic feature of the Constitution. The impugned amendments fail the twin tests of power and identity laid down in M. Nagaraj v. Union of India (2006) 8 Supreme Court Cases 212 (see Paragraphs 102, 103, 107, 112‑121). The unguided power conferred on the States by the explanation to Article 15(6) falls foul of the guided power test in M. Nagaraj (see Paragraphs 107 and 108)., Even as per the Sinha Commission Report of 2010, which the Union claims is the basis for Economically Weaker Sections reservation, welfare measures should be undertaken to uplift the Economically Weaker Sections category. Hence there was no necessity for a separate reservation. A reading of Article 15(6) and Article 16(6) shows that Economically Weaker Sections reservation is vertical, not horizontal. Moreover, the manner in which the Constitution Bill was introduced in Parliament as a supplementary list of business, which did not provide time to the members to study and deliberate the amendment Bill, and its consequent passage without debate or study, displays its political motivations and is a mockery of the democratic process., Therefore, in view of the above, this Court may be pleased to declare the 103rd Constitutional Amendment Act, 2019 to be unconstitutional and void and pass such further orders which this Court may deem fit and proper to pass in the circumstances of this case and thus render justice., Mr. P. Wilson, Senior Advocate (R. Nedumaran) counsel for the petitioner, and Advocate Somanath Padhan, AOR, filed the writ petition No. 596 of 2019 on behalf of Rajat Rajendra Agrawal versus the State. The Parliament amended the Constitution by the Constitution (One Hundred and Third Amendment) Act, 2019, inserting Articles 15(6) and 16(6) to enable the State authorities to make special provision for the advancement of any Economically Weaker Sections of the citizens other than the classes mentioned in clauses (4) and (5), as far as such special provisions relate to admissions to educational institutions, including private educational institutions, whether aided or unaided by the State, other than minority educational institutions. However, in the case of reservation in addition to the existing reservations, the same shall be subject to a maximum of 10 percent of the total seats in each category., As a sequel to the amendment to Article 15, the Government of Maharashtra decided to provide 10 percent reservation to the Economically Weaker Sections in educational institutions. Accordingly, the General Administration Department of the State of Maharashtra requested the respective departments to issue necessary orders vide Government Resolutions dated 12 February 2019. The Medical Education and Drugs Department issued a resolution on 7 March 2019 providing 10 percent reservation to the Economically Weaker Sections in postgraduate courses in health sciences., The Central Educational Institutions (Reservation in Admissions) Act, 2006 provides 15 percent reservation for Scheduled Castes, 7.5 percent for Scheduled Tribes and 27 percent for Other Backward Classes, whereas the Maharashtra Private Professional Educational Institutions (Reservation of Seats for Admission for Scheduled Castes, Scheduled Tribes, Denotified Tribes (VJs), Nomadic Tribes (NTs), and Other Backward Classes) Act, 2006 provides 50 percent reservation as per the distribution shown in Section 4 of the Act. Moreover, an additional 16 percent reservation would be provided in all educational institutions, including private professional educational institutions in Maharashtra, in favour of the Maratha community., The rules regulating admissions in government education institutions, private professional educational institutions in Maharashtra and the central educational institutions all over India are different, resulting in discrimination and inequality amongst the students. Such reservation policy is arbitrary, discriminatory, unjust and violative of Articles 14 and 15(4) of the Constitution of India., The petitioners submit that the population of Scheduled Castes and Scheduled Tribes is roughly 21 percent, whereas the population of the communities included in VJNT, Other Backward Classes, and Socially Backward Classes is roughly 42 percent, and the population of the Maratha community seeking reservation in Maharashtra is roughly 30 percent. Consequently, all kinds of social reservations (vertical reservations) in the State of Maharashtra literally cover 93 percent of the population, leaving roughly 7 percent of the population outside the umbrella of social reservations, which is a violation of the chain of judgments passed by the Supreme Court of India., The maximum reservation that can be provided for Economically Weaker Sections is 10 percent under the newly inserted Article 15(6) of the Constitution. However, this does not mean that every state shall provide 10 percent reservation indiscriminately. For Scheduled Castes and Scheduled Tribes, reservation is provided in proportion to their population. If the State of Maharashtra provides 10 percent reservation for communities that constitute roughly 7 percent of the total population, such reservation would be excessive. Ten percent reservation for a 7 percent population shocks the conscience and defies logic. The maximum reservation for Economically Weaker Sections, if at all necessary, should not exceed 3.5 percent., In Maharashtra, where there is already 69 percent reservation covering 93 percent of the population, the Government should not have provided an additional 10 percent reservation for the communities that constitute 7 percent of the population. The total seats available for the general category are already very few, as candidates from Scheduled Castes, Scheduled Tribes, VJNT, Other Backward Classes, and Socially Backward Classes are free to compete with the general category and thereby occupy an additional 10‑15 percent of seats. Consequently, the seats available to candidates belonging to the general category would be less than 10 percent., According to the directives of the Medical Council of India, whenever reservation is provided, an equal number of additional seats are to be created. The Central Government or the Medical Council of India has neither proposed nor created additional 10 percent seats of the total intake of graduate and postgraduate courses in health sciences. Unless additional 10 percent seats are created and the intake capacity of the institutions imparting education in health science courses is increased by 10 percent, the application of the Government Resolutions dated 12 February 2019 and 7 March 2019 should be deferred to 2020‑2021, as is done in the case of health science courses by the Medical Council of India, Ministry of Health and Family Welfare., The Government of India, through the Ministry of Social Justice and Empowerment, by its Office Memorandum dated 17 January 2019, clearly stated that every educational institution shall, with the prior approval of the appropriate authority, increase the number of seats over and above its annual permitted strength in each branch of study or faculty so that the number of seats available excluding those reserved for the persons belonging to the Economically Weaker Sections are not less than the total seats available in the academic session immediately preceding the date of the coming into force of these Office Memoranda. This Office Memorandum makes it clear that the Central Government had communicated that to implement the Economically Weaker Sections reservation, there should have been a proportional increase in the number of seats for effective implementation., The impugned Government Resolutions dated 12 February 2019 and 7 March 2019 were issued without application of mind, are arbitrary, discriminatory, unjust and violative of Articles 14 and 15, and are beyond the purview of clauses (3) and (4) of Article 15., The impugned resolutions are violative of Section 54 of the Maharashtra University Health Sciences Act, 1998 as well as Section 5 of the Maharashtra Act No. XXX of 2006. The reservation of 10 percent provided for economically backward classes for a 7 percent population of the State of Maharashtra is excessive and therefore violative of Article 14 of the Constitution of India., The present writ petition challenges the constitutional validity of the Constitution (One Hundred and Third Amendment) Act, 2019 inserting Articles 15(6) and 16(6) permitting the State to provide special provisions or reservations for any Economically Weaker Sections of citizens other than the backward classes or Scheduled Castes/Scheduled Tribes, to a maximum of 10 percent of seats or posts in addition to the existing reservations, including unaided institutions notwithstanding the provisions of Articles 19(1)(g) and 29(2). Each of these aspects violates one or other of the basic features of the Constitution and therefore must be prevented., The writ petition also challenges the Andhra Pradesh Economically Weaker Sections of Citizens (Reservation of Seats in Educational Institutions and of Appointments of Posts in the Public Services under the State for Kapus) Act, 2019 and the Andhra Pradesh Economically Weaker Sections other than Kapus (Reservation of Seats in Educational Institutions and of Appointments of Posts in the Public Services under the State) Act, 2019 on the ground that they violate several basic features of the Constitution., It is well settled that economic criteria cannot be the sole basis for reservation. In Indira Sawhney v. Union of India (1992) Suppl. SCC 217, the nine‑judge bench of the Supreme Court of India specifically stated that a backward class cannot be determined only and exclusively with reference to economic criterion. Economic consideration may be a factor along with social backwardness, but it can never be the sole criterion. Justice Sawant, at Paragraph 481, observed that the concept of weaker sections under Article 46 is different from that of the backward class under Article 16(4), and that poverty or economic consideration alone cannot be a criterion for identifying backward classes under Article 16(4). Justice Sahai, at Paragraph 627, further held that any reservation or affirmative action on economic criteria cannot be upheld under the doctrine of reasonable classification., The equality code is a foremost basic feature of the Constitution. Excluding Scheduled Castes, Scheduled Tribes and Other Backward Classes from the scope of the Economically Weaker Sections reservation essentially implies that only poor persons from the general categories would benefit, which violates the basic feature of equality enshrined in Article 14., The 50 percent ceiling limit cannot be breached. The Supreme Court of India, in M. Nagaraj v. Union of India (2006) 8 Supreme Court Cases 212, upheld the constitutional validity of Article 16(4A) and the proviso to Article 335, stating that the ceiling limit of 50 percent, the concept of creamy layer and the compelling reasons of backwardness, inadequate representation and overall administrative efficiency are constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse. The Court further observed that excessiveness in reservation would result in violation of the constitutional mandate. This 50 percent ceiling limit has been reiterated by the Constitution Bench in Jarnail Singh v. Lachhmi Narain Gupta (2018) 10 Supreme Court Cases 396., The petitioners submit that the 103rd Constitutional Amendment, by effectively enacting a quota for forward castes, completely negates the equality code. For example, if the income threshold for identifying Economically Weaker Sections is set at an annual income of Rs 5,00,000, all backward class applicants with a family income below that amount would be ineligible, even though they are both economically worse off and socially and educationally backward compared with forward‑caste beneficiaries of the 10 percent quota., This inversion of equality means that persons who were previously able to compete in the general category are now denied open competition for the same quota, while a larger number of persons who are better off on economic, social and educational parameters will monopolise access to the 10 percent reservation. Such discrimination violates both the identity and the width of the equality code., The exclusion of backward classes from a category purportedly based on economic criteria amounts to formal discrimination on the ground of caste and results in inequality in law. Moreover, persons who are factually worse off on economic, social and educational parameters will be denied access to the 10 percent reservation in favour of those who are better off on all counts, constituting inequality in fact., It is settled law that members of backward classes otherwise eligible for reservations are also eligible for seats in the general category. This proposition is based on the importance of a large, continuing category in which citizens irrespective of caste, class or economic makeup can compete together in open competition on equal terms. The exclusion of backward classes from Economically Weaker Sections risks a separate‑but‑equal trajectory, which is undesirable for the purposes of reservations in education and employment., The petitioners therefore pray that the Supreme Court of India declare the 103rd Constitutional Amendment Act, 2019 unconstitutional, set aside the Economically Weaker Sections reservation, and restore the constitutional balance of equality and social justice.
id_122	2	The exclusion of backward classes from the Economically Weaker Sections (EWS) category, if sought to be justified solely on the ground that the economically backward within these groups have access to reservation because of their educational and social backwardness, will only mean that the entire concept of reservations will be progressively reduced into segregated silos of opportunities divided by caste groups, where the space for open competition will be increasingly limited to among members of one's own caste groups. The impugned Amendment operates to create such silos for narrow parochial identities despite the universal experience of poverty across caste lines, and thereby goes against the grain of fraternity and equal opportunity in the Constitution. Supreme Court of India should purposively interpret the words other than classes mentioned in Clause 4 in Articles 15(6), 16(6) to exclude only non economically weaker persons from backward classes. It is settled law that interpretation of constitutional text should be such that it advances or is in line with the basic features of the Constitution. (Union of India, Chandrachud, Justice concurring paragraph 436, Misra, Chief Justice majority paragraphs 284.10, 284.11, 135). In this case, the inclusion of backward classes in the EWS reservation category eliminates formal inequality and enhances substantive equality, both of which are crucial elements of the equality code which is a basic feature of the Constitution., The text of Articles 15(6), 16(6) insofar as it uses the phrase any economically weaker sections of citizens other than the classes mentioned in clause is open to two interpretations. First, that it excludes persons belonging to all backward classes from the newly created EWS criteria, regardless of their economic status. As argued above, such an interpretation would completely negate the equality code itself. The second construction which can be placed on the same text and which the text is fully capable of bearing, is that it seeks to exclude persons from backward classes only qua their membership of a backward class per se, meaning that such exclusion shall not extend to members of backward classes claiming reservations, not qua their social or educational backwardness, but qua their economic status if they are otherwise found to meet the EWS criteria. This construction gets force from the use of the word citizens, which is all inclusive and not limited to any class, caste, group, etc., Drawn by: Shadan Farasat, Advocate; Ujwala Uppaluri, Advocate and Hrishika Jain, Advocate. Gautam Bhatia through Prasanna S. Rahul Narayan, Advocate-on-Record Rahul Narayan Ms. Meenakshi Arora, Senior Advocate General Manager Rangachari Balaji State of Mysore Devadasan Union of India per Subba Rao, Justice (dissent). Chitralekha State of Mysore ..., Indira Sawhney Union of India, 1992 Supplement (3) M. Nagaraj Union of India Ram Singh Union of India Jarnail Singh Union of India Mukesh State of Uttarakhand Raghu Thakur and others Versus Union of India & Others. Synopsis of Arguments/ Written Submissions on behalf of the Petitioners [Tentative Time Sought: One Hour] The 103rd Constitutional amendment destroys the basic structure of the Constitution, that is, equality since inserting Article 16(6) providing for reservation exclusively with reference to economic criteria is destructive of the basic feature of equality totally. This has been laid down in Indira Sawhney v. Union of India, 1992 Supplement (3) Supreme Court Cases 217 in paragraph 481. It is further respectfully submitted that backwardness for the purpose of reservation under Article 16 must be backwardness both educationally and socially as laid down in Indira Sawhney and Janaki Prasad Parimoo Vs. State of Jammu & Kashmir All India Reporter 1973 Supreme Court 930., The 103rd Constitutional amendment destroys the basic structure of the Constitution of equality since inserting Article 15(6) providing for reservation exclusively with reference to economic criteria destroys equality. This principle has been laid down in Indira Sawhney (supra) in paragraphs 627, 481. The backwardness for the purpose of reservation under Article 15 must be backwardness both educationally and socially as laid down in Indira Sawhney (supra) and Janaki Prasad Parimoo Vs. State of Jammu & Kashmir All India Reporter 1973. The exclusion of Scheduled Castes, Scheduled Tribes, Other Backward Classes by the insertion of Article 15(6) is violative of the basic structure of equality under Articles 14, 15, 16 and 29 thus destroying the basic structure of the Constitution by providing reservation for economically weaker sections other than classes mentioned in clauses (4) and (5) which specifically excludes Scheduled Castes, Scheduled Tribes, Other Backward Classes and makes it a reservation solely for non Scheduled Castes, Scheduled Tribes, Other Backward Classes which are the castes among the Indian citizens who are forward socially and educationally, in other words Savarna castes. This is further substantiated by the notifications implementing the amendment dated 31/1/2019 and its annexures, including the format of EWS certificate., The exclusion of Scheduled Castes, Scheduled Tribes, Other Backward Classes by the insertion of Article 16(6) is violative of the basic structure of equality under Articles 14, 15, 16 and 29 thus destroying the basic structure of the Constitution by providing reservation for economically weaker sections other than classes mentioned in clause (4) which specifically excludes Scheduled Castes, Scheduled Tribes, Other Backward Classes and makes it a reservation solely for non Scheduled Castes, Scheduled Tribes, Other Backward Classes which are the castes among the Indian citizens who are forward socially and educationally, in other words Savarna castes. This is further substantiated by the notifications implementing the amendment dated 31/1/2019 and its annexures, including the format of EWS certificate., The impugned amendment is violative of the principle of equality as a basic feature of the Constitution since it provides 10 percent reservation to less than 20 percent population against a reservation of 27 percent for a population of now more than 60 percent population of Other Backward Classes (52 percent as per Mandal Commission). The EWS reservation is a caste based reservation, providing reservation to those sections other than Scheduled Castes, Scheduled Tribes, Other Backward Classes and whether such a caste based reservation is destructive of the basic aim of the Constitution of a casteless society making the aim of a casteless society part of the basic structure of the Constitution., It is respectfully submitted that the present amendment creates two level classification: first classification is between people belonging to the Scheduled Castes, Scheduled Tribes, Other Backward Classes, that is, those covered under Article 16(4) or Articles 15(4) and (5) and the non Scheduled Castes, Scheduled Tribes, Other Backward Classes, that is, those not covered under those, this classification is based only on caste. Second classification is based on EWS of forward castes and non EWS of forward castes. This is further glaring from the prescription of the amendment that EWS for this amendment is only the EWS of the forward castes, that is, non Scheduled Castes, Scheduled Tribes, Other Backward Classes. Casteless society is one of the basic aims of the Constitution., V.V. Giri v. D.S. Dora (1960) 1 Supreme Court Reports 426; State of Kerala v. N.M. Thomas (1976) 2 Supreme Court Cases 310; Ashoka Kumar Thakur (2008) 6 Supreme Court Cases 1. The amendment in issue is violative of the basic structure of secularism, diversity and pluralism as specified in the concept of adequacy of representation contained in Article 16(4) since the present amendment excludes the necessary limitation and conditionality of inadequacy of representation., It is respectfully submitted that sections of citizens covered under Articles 15(4) and 16(4) are inadequately represented and those not covered under these, that is, non Scheduled Castes, Scheduled Tribes, Other Backward Classes are more than adequately represented. Indira Sawhney v. Union of India, 1992 Supplement (3) Supreme Court Cases 217. The provision of 10 percent of seats for the EWS of non Scheduled Castes, Scheduled Tribes, Other Backward Classes, preventing the EWS of Scheduled Castes, Scheduled Tribes, Other Backward Classes even for applying or competing for these posts and seats even as an open or general category candidate is making this 10 percent of posts or seats untouchable to Scheduled Castes, Scheduled Tribes, Other Backward Classes even if they are more backward than those EWS covered in the 10 percent. This strikes at the root of the basic structure of abolishing exclusion and untouchability., The exclusion of the Scheduled Castes, Scheduled Tribes, Other Backward Classes from the 10 percent of posts and seats, that too preventing also those EWS of Scheduled Castes, Scheduled Tribes, Other Backward Classes even if they are more backward than those EWS covered in the 10 percent is taking away and annihilating the competency and representability these sections have acquired or obtained through the operation of the Constitution including Articles 15(4) and (5) and 16(4) till the present amendment in 2019. These 10 percent of posts and seats as all general seats were available for Scheduled Castes, Scheduled Tribes, Other Backward Classes to compete as general or open category, which is a constitutional mandate, as held in V.V. Giri and R.K. Sabharwal. This prohibition and abolition is more than cutting the thumb away which militates against the basic feature of fraternity assuring the dignity of the individual., The present amendment obliterates the bar of discrimination and classification only on the grounds specified in Articles 15, 16 and 29 thus destroying the basic structure of equality and secularism. Dr. M. P. Raju, Advocate through S. S. Nehra Advocate for Petitioners. Writ Petition (Civil) No. 95 of 2019 Justice Vangala Eswaraiah (Retd.) & Others Vs. Union of India and Others. Arguing Counsel: Prof. (Dr.) Advocate Advocate on Record D. Mahesh Babu. Tentative Time sought for arguments: 2 Hours., The Impugned Amendment violates two elements of the Basic Structure of the Constitution namely; Equality, including equality of opportunity in public employment; and Democratic form of Government. EWS Violates the Basic Structure Norm of Equality. Classification of economically weaker sections into an excluded category consisting of communities eligible for vertical reservations; and an eligible category of others, being arbitrary, is unconstitutional inter alia for the following reasons namely; Eligibility for vertical reservations under Articles 15(4) and (5) and 16(4) is selectively picked as a ground of exclusion from EWS but eligibility for horizontal reservations is not a ground for exclusion which is arbitrary and mala fide. Under the system of interlocking reservations mere eligibility for any type of reservation does not make a person ineligible for any other type of horizontal reservations (EWS is horizontal reservation as per the definition in Indira Sawhney); Such classification violates, and does not have any rational nexus with, the claimed Article 46 object of EWS of promoting with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes and protecting them from social injustice and all forms of exploitation. The classification is in reality based solely on an illegal prohibited intelligible differentia (membership of a forward caste) to serve an illegal object (providing reservations exclusively for forward castes after excluding a creamy layer amongst them). The width of the Impugned Amendment further damages the basic structure norm of equality by greatly broadening the basis on which equality of opportunity in public employment may be denied. The Impugned Amendment alters the identity of the Constitution from being a charter for social revolution as laid down by the Honourable Supreme Court of India in S.P. Gupta, to being a guardian of caste privilege., EWS violates the Basic Structure Norm of Democratic Government. At the heart of a democratic government is adequate representation of all social groups in public employment such that State laws and policies serve the interests of all sections of the people. Reservation is a tool for securing democratic representation in public employment and education. Reservation for classes that are already over represented is unconstitutional because it entrenches the domination of oligarchic classes, damaging the goal of a representative, democratic government. The Impugned Constitutional Amendment is thus unconstitutional., 03.09.2022 Advocate on Record for the Petitioner. Cases Relied on: Kesavananda Bharati Sripadagalvaru and Others vs. State of Kerala at paragraph 316; (paragraph 506 A of Supreme Court Cases). (paragraphs 520 and 535A of Supreme Court Cases). (paragraphs 648, 652). (paragraph 886). (paragraph 1159) (paragraph 1471), (paragraph 1621). (paragraphs 1882, 1883) (paragraph 2086). Secretary, State of Karnataka vs. Umadevi & Others at paragraph 32. Indira Sawhney Vs. Union of India 1992 Supplement (3) Supreme Court Cases 212 at paragraphs 6 and 7 at pages 544 and Indira Sawhney Vs. Union of India and Others (13/12/1999) No paragraph numbers. First full paragraph on page 20 in JUDIS pdf; Anwar Ali Sarkar v. State of West Bengal 1952 Supreme Court Reports 284 at paragraph 71 (N. Chandrasekhar Iyer Justice). E.P. Royappa v. State of Tamil Nadu 1974 Supreme Court Reports (2) 348 at paragraph 85. Maneka Gandhi v. Union of India 1978 (1) Supreme Court Cases 248 at paragraphs 4 to 7. Minerva Mills Ltd. & Others Vs. Union of India & Others 1981 Supreme Court Reports (1) 206 at page 285., Material Relied on: Constituent Assembly Debates on Article 16(4) (Article 10, Draft Constitution); Volume 7, CAD; 30 November 1948. 03.09.2022 Advocate on Record for the Petitioner. Time required for hearing: 3 hours approximately., In the present case, the ground of basic structure is being raised by challenging the inclusion of the economically weaker sections of the society by a Constitutional Amendment, comprehended within the scope of Article 15 and Article 16. This approach is based on a total misconception because the basic structure of the Constitution is the foundation on which the original constitution as passed by the Parliament stands. The very preamble to the Constitution declares India to be a sovereign, socialist, secular, democratic republic where social, economic and political, as well as quality of status and of opportunity are to be established in addition to promoting fraternity, assuring the dignity of the individual and integrity of the nation. These solemn promises alone to the Constitution would require above all, more than Article 15(4) and Article 15(5) and Article 16(4) and Article 16(5) to provide for the upliftment of economically weaker sections, which could be by way of reservations in educational institutions, reservation of posts in public employment and a chain of welfare measures, which a State is bound to hold out to its weaker sections of the society., It may be mentioned that the judgment in Indira Sawhney vs. Union of India, 1992 Supplement (3) Supreme Court Cases 217 cannot be invoked, as the issues there dealt with the scope and content of reservations contained in Article 15(4) and Article 16(4) and dealt with a totally different category of weaker sections namely the socially and educationally backward and the Scheduled Castes and Scheduled Tribes. No question of whether the weaker section of the society were entitled to the benefit of reservation could arise in that case and if decided can only be treated as obiter passages extracted below from Indira Sawhney (supra) would show that the judgment itself holds that they are not dealing with the economically weaker sections of the society being given benefits through affirmative action., However, the provisions of Article 46 should not be confused with those of Article 16(4) and hence the expression weaker sections of the people in Article 46 should not be mixed up with the expression backward class of citizens under Article 16(4). The purpose of Article 16(4) is limited representation in the services of the State to that class which has no such representation. Hence, Article 16(4) carves out a particular class of people and not individuals from the weaker sections, and the class it carves out is the one which does not have adequate representation in the services under the State. The concept of weaker sections in Article 46 has no such limitation. In the first instance, the individuals belonging to the weaker sections may not form a class and they may be weaker as individuals only. Secondly, their weakness may not be the result of past social and educational backwardness or discrimination. Thirdly, even if they belong to an identifiable class but that class is represented in the services of the State adequately, as individuals forming weaker section, they may be entitled to the benefits of the measures taken under Article 46, but not to the reservations under Article 16(4). Thus, not only the concept of weaker sections under Article 46 is different from that of the backward class of citizens in Article 16(4), but the purpose of the two is also different. One is for the limited purpose of the reservation and hence suffers from limitations, while the other is for all purposes under Article 46, which purposes are other than reservation under Article 16(4). While those entitled to benefits under Article 16(4) may also be entitled to avail of the measures taken under Article 46, the converse is not true., If this is borne in mind, the reasons why mere poverty or economic consideration cannot be a criterion for identifying backward classes of citizens under Article 16(4) would be more clear. The entire writ petition based on these grounds is liable to be dismissed. The question of applying the ceiling limit of 50 percent can never arise as a result of Article 15(6) now under challenge for the simple reason that affirmative action towards weaker sections would include the bundle of the package under Article 16(4) and Article 16(5) as well as Article 15(6). All these provisions taken together would now have to be dealt with as one single approach of the State intended for the upliftment of the weaker sections of the society, which include all these three classes, namely socially and educationally backward classes, the Scheduled Castes and the Scheduled Tribes and now the economically weaker sections. As to what percentage has to be reserved for these categories, together or separately, will now have to be decided by the Honourable Supreme Court of India. The 50 percent ceiling limit is not sacrosanct. The petition raised on this ground also deserves to be rejected. The submission made on the ground of economic criterion being the sole determining factor for grant of reservation is also without any merit. In several judicial pronouncements, economic criteria has been held to be a relevant factor for determination of social and educational backwardness. Reference is made to the decision of the Honourable Supreme Court of India in Society for Unaided Private Schools of Rajasthan v. Union of India (3 Judges), wherein the validity of the Right of Children to Free and Compulsory Education Act, 2009, which was enacted to give effect to Article 21A of the Constitution, was challenged. This Honourable Supreme Court of India held that the 2009 Act seeks to remove all barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission and therefore upheld it under Article 21 of the Constitution. Furthermore, it held that earmarking of seats for children belonging to a specified category who face financial barrier in the matter of accessing education satisfies the test of classification in Article 14. It was held that the provision provides for a level playing field in the matter of right to education to children who are prevented from accessing education because they do not have the means or their parents do not have the means to pay for their fees; therefore the provisions were upheld on the edifice of Article 14 of the Constitution as well. The present petition, accordingly, must be dismissed.
id_1220	0	Krishnamoorthy is the petitioner. The first respondent is the Inspector of Police, M. Reddiyapatti Police Station, Virudhunagar District, Crime No. 48 of 2022. The second respondent is Sunitha, impleaded as per the order of the Madras High Court dated 28 June 2022 in Criminal Magistrate (M.D.) No. 7063 of 2022. The prayer is that a Criminal Revision Petition be filed under Section 397 read with Section 401 of the Criminal Procedure Code to call for the records of the order dated 9 June 2022 made in Criminal Magistrate Petition No. 2753 of 2022 on the file of the learned Judicial Magistrate, Aruppukottai, and to set aside the same and allow the Criminal Revision Petition. For the petitioner: Mr. T. Veerakumar. For the respondents: Mr. S. Manikandan, Government Advocate (Criminal Side). For the first respondent: Mr. J. Sankarapandian. For the second respondent: [name not provided]., The Criminal Revision Case is directed against the order passed in Criminal Magistrate Petition No. 2753 of 2022, dated 9 June 2022, on the file of the Court of the Judicial Magistrate, Aruppukottai, which dismissed the petition filed under Sections 457 read with 451 of the Code of Criminal Procedure., The petitioner is the third accused and, on the basis of the complaint lodged by the second respondent, a First Information Report was registered in Crime No. 48 of 2022, dated 16 May 2022, under Section 429 of the Indian Penal Code, and Sections 11(1)(d) and 11(1)(e) of the Prevention of Cruelty to Animals Act, 1960., The prosecution case is that on 16 May 2022, the accused, including the petitioner, illegally transported thirty‑six cows in a vehicle bearing registration number TN‑34‑U‑6636, and that the vehicle was intercepted and the thirty‑six cows were recovered., It is not in dispute that after recovery, the thirty‑six cows were entrusted to the second respondent, Sai Baba Memorial Animal Rescue Trust, at Kumarapuram, Virudhunagar District. The petitioner, claiming to be the owner of the thirty‑six cows, filed a petition in Criminal Magistrate Petition No. 2753 of 2022 under Section 457 read with 451 of the Criminal Procedure Code, seeking orders for the return of the cows to him. The learned Judicial Magistrate, after conducting an enquiry, passed the impugned order dated 9 June 2022 dismissing the petition. Aggrieved by the dismissal, the third accused, Krishnamoorthy, has filed the present Criminal Revision., The petitioner states that he is engaged in agricultural cultivation in his village and has thirty‑six cattle for his livelihood; that a drought and water scarcity existed in his village, prompting him to shift his entire livestock to another water‑sourced place in Virudhunagar District; that he loaded the cattle in a container bearing registration number TN‑34‑U‑6636 on 15 May 2022 at about 9.00 a.m., and when the cattle were passing near M. Reddiyapatti, the second respondent stopped the vehicle alleging that the livestock were being sent for slaughter in Kerala State and lodged a complaint, on the basis of which a First Information Report was registered and thirty‑six cows were seized and produced before the Kosalai at Virudhunagar; that the petitioner is an agricultural labourer who depends solely on the income from his cattle to support his family, and he undertakes that he never sells or abandons the cattle at any time, is ready to abide by any conditions imposed by the Madras High Court, and therefore the thirty‑six cows recovered by the first respondent police may be returned to the petitioner on interim custody., The first respondent police and the second respondent, the de facto complainant, have filed separate counter‑affidavits raising serious objections to returning the cows to the petitioner., The first respondent contends that the petitioner illegally transported the cows for the purpose of slaughter and did not use them for agricultural purposes, asserting that he is not engaged in any agricultural work. The prosecution further alleges that the petitioner did not follow the prescribed rules, namely Rules 46 to 63 of the Transport of Animals Rules, and that if interim custody is granted, he may again commit a similar offence., The second respondent, in her counter‑affidavit, stated that the petitioner was carrying thirty‑six cows in a container by tying the legs of all the cattle in a cruel manner and had also used green chillies in the eyes of the cows to keep them standing for a long journey; that a Veterinary Officer visited the second respondent’s premises, conducted a medical examination of the cows and found numerous injuries; that one cow was in a pregnant stage and most of the cows were aged below ten years; and that the petitioner did not follow the procedures contemplated under the Tamil Nadu Animal Preservation Act and the Transport of Animals Rules., The learned counsel for the petitioner relied on a judgment of the Madras High Court in Nazeer v. State, represented by the Inspector of Police, Chithode Police Station, Erode and others, reported in (2017) 4 Madras Law Journal (Criminal) 646, wherein a learned judge of the Madras High Court permitted the petitioner to retain custody of buffaloes by imposing certain conditions and directed the petitioner to follow the rules if he intends to transport buffaloes in the future by road or any other mode of transport., As rightly pointed out by the learned Judicial Magistrate, in two other decisions of the Madras High Court—Shakeer Ali v. State, represented by the Inspector of Police, Karumathampatty Police Station, Coimbatore District, and Ginjala Naga Appala Raju v. State, represented by the Inspector of Police, Avinashi Police Station, Thiruppur District—in Criminal Revision Case No. 965 of 2021 and Criminal Revision Case No. 73 of 2022, dated 21 January 2022 and 2 February 2022 respectively, another learned judge of the Madras High Court held that the petitioners had handed over the cattle to the transporter for moving them from Krishnagiri to his cattle farm in Pollachi in the first case and from Thanjavur to his cattle farm in Pollachi in the second case. In both cases, the cattle were not transported for slaughter, and therefore the cattle were ordered to be returned to the petitioners/owners on interim custody., At this juncture, it is necessary to refer to the judgment of the Madras High Court in Naseerulah v. State, represented by the Sub‑Inspector of Police, Coonoor and another, in Criminal Revision Case No. 777 of 2010, dated 14 March 2013., In this connection, Section 429 of the Indian Penal Code provides punishment for mischief by killing or maiming cattle or any animal of value fifty rupees, with imprisonment for a term which may extend to two years, or with fine, or with both. The section is cognizable. The provision includes maiming of cows or oxen. In one vehicle more than twenty cows or buffaloes were transported, and during transport one animal attacked another, showing an inhumane attitude of the transporter. Consequently, the owner can be held liable for maiming or injury caused by illegal transportation. Despite these provisions, the animals were transported to a butchery without following the rules and regulations. Cattle are often transported continuously for up to forty‑eight hours across state borders without providing fodder or water, mainly for slaughter in Kerala, in clear violation of legal provisions and under the nose of authorities duty‑bound to implement the law. The object of the Prevention of Cruelty to Animals Act, 1960, is to prevent cruelty to animals, and it is imperative that both this Act and the Indian Penal Code be implemented strictly by the concerned authorities. The lower courts in Tamil Nadu should note these provisions and ensure proper punishment of offenders. The finding of the lower court that the petitioner is not entitled to the return of the cattle is well founded and correct. Additionally, after the cattle were handed over to the second respondent, they were kept for six months during which twenty‑one cattle died; post‑mortem certificates have been produced. In all cases, injuries sustained during illegal transportation were evident. In one case, gangrene set in and required surgery; the injuries caused by illegal transport were the cause of death. Stringent action should be taken against those who violate the laws in the future, and the vehicles used should be dealt with under the Motor Vehicles Act with appropriate punishment., It is also necessary to refer to the judgment of the Supreme Court in Raguramsharma and another v. C. Thulsi and another (Criminal Appeal No. 230 of 2020), dated 5 February 2020, wherein the Supreme Court set aside the order granting interim custody of the cattle seized in Crime No. 114 of 2019 on the file of the Archirapakkam Police Station. The Court highlighted Rule 56 of the Transport of Animals Rules, 1978, which requires that when cattle are transported by goods vehicle, (a) specially fitted vehicles with padded tail boards and side guards be used; (b) ordinary goods vehicles be provided with anti‑slipping material such as coir matting or wooden boards on the floor and raised superstructure; (c) no goods vehicle shall carry more than six cattle; (d) each vehicle shall have one attendant; (e) the vehicle shall not be loaded with any other merchandise while transporting cattle; and (f) cattle should preferably face the engine to prevent fright or injury. The facts show that thirty‑seven animals were transported, violating these norms. Subsequent FIR No. 207 dated 4 September 2019 showed forty‑seven animals being transported against the permissible norm of six, resulting in the death of one buffalo in the present case and six animals in the subsequent case., In the present case, thirty‑six cows were transported in a single container and were jam‑packed with a rope fastened through their noses., It is not the case of the petitioner that he obtained a certificate from a qualified veterinary surgeon stating that the animals were fit to travel, nor that the consignment bore a label showing the name and address of the consignor and consignee., The learned counsel for the second respondent submitted that a veterinary doctor visited the second respondent’s premises, conducted a medical check‑up, and found numerous injuries on the cows; the doctor also informed that one cow was pregnant and most of the cows were aged below ten years., As rightly contended by the learned Government Advocate (Criminal Side) and the learned counsel for the second respondent, although the petitioner alleged that he was transporting cows from his native village to another village with water sources, he did not elaborate further. The petitioner has not furnished any particulars about his village where drought and water scarcity existed nor about the proposed village with water sources where the cows were to be transported., The main contention of the second respondent as well as the first respondent is that the cows were allegedly transported for slaughtering purposes in Kerala and that the petitioner has not shown that the cows are aged more than ten years nor that he had the necessary permission to transport the cattle for slaughter., Considering the facts and circumstances of the case, including that thirty‑six cows were transported in a single container, jam‑packed, without water or food, with green chillies placed in their eyes to keep them standing for long travel, the injuries suffered by some cows, the fact that most were aged below ten years, and the petitioner’s failure to demonstrate that the cows were for agricultural purposes, the Madras High Court is of the view that the petitioner is prima facie guilty of causing cruelty to the animals. Accordingly, the impugned order dismissing the petition cannot be faulted., If the petitioner is finally found not guilty, the issue of custody of the cattle will be dealt with in accordance with the concerned rules and regulations, but the petitioner is definitely not entitled to interim custody of the cattle. Hence, the Court is not inclined to order the return of the cows to the petitioner at this time., In the result, this Criminal Revision is dismissed. 12 August 2022. Index: Yes/No. Internet: Yes/No. NOTE: In view of the present lockdown owing to the COVID‑19 pandemic, a web copy of the order may be utilized for official purposes, but ensuring that the copy of the order presented is the correct copy shall be the responsibility of the advocate or litigant concerned.
id_1221	0	Civil Miscellaneous Appeal No. 2510 of 2019 Bhuvaneswari (Appellant) vs. The United India Insurance Company Ltd., 104-A, Ranga Building, Peramanur Main Road, Four Road, Salem-636 103 (Respondents). The Civil Miscellaneous Appeal is preferred under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 18 March 2019 passed in Motor Accident Claim Petition No. 115 of 2017 on the file of the Chief Judicial Magistrate Court-cum-Motor Accidents Claims Tribunal, Salem. For Appellant: Mr. T. S. Arthanareeswaran. For Respondent-1: No Appearance. For Respondent-2: Mr. C. Paranthaman., The present Civil Miscellaneous Appeal is preferred against the judgment and decree dated 18 March 2019 passed in Motor Accident Claim Petition No. 115 of 2017 on the file of the Chief Judicial Magistrate Court-cum-Motor Accidents Claims Tribunal, Salem. The claimant is the appellant, seeking enhancement of compensation., The accident occurred on 21 February 2017 at about 12.00 noon at Valasaiyur Main Road, near Periyaveeranam Bus Stop. The Salem City Traffic Investigation Wing Police Station registered a case in Crime No. 165 of 2017 under Sections 279, 337 and 338 of the Indian Penal Code., The claimant, a woman aged about 39 years, sustained grievous injuries resulting in permanent disability. She was admitted immediately at Government Mohan Kumaramangalam Medical College Hospital, Salem and continued her treatment subsequently at Universal Hospital, Kondalampatty, Salem., The appellant was standing near Periyaveeranam Bus Stand to catch a bus when a bus belonging to the first respondent, registration No. TN‑54‑2233, driven rashly and negligently, hit the appellant. The appellant sustained grievous injuries to the back, including spinal cord injury, fractures, and injuries to the tongue and other serious injuries., The nature of injuries reveals that the appellant sustained not only grievous injuries but also permanent disability and she is continuously taking treatment., The Tribunal, with reference to the negligence aspect, concluded that the bus driver had driven rashly and negligently, causing the accident and grievous injuries to the appellant., The first respondent, the owner of the bus, did not appear before the Tribunal. The second respondent, the insurance company, contested the case but could not dispute the accident or the fact that the driver was rash and negligent. Consequently, the Tribunal, based on documents and evidence, held that the bus owned by the first respondent was at fault., The Tribunal discussed the nature of permanent disability and multiple grievous injuries. The appellant underwent both inpatient and outpatient treatment and surgery, resulting in permanent disability. She was examined by the Medical Board of the Government Hospital, which issued a Disability Certificate (Exhibit P‑15 dated 17 September 2018) and X‑Ray (Exhibit P‑16) indicating the nature of injuries., The Tribunal fixed the monthly income of the appellant at Rs 4,500 and accordingly awarded a sum of Rs 4,86,000 towards loss of income., The learned counsel for the appellant contended that the 60 % disability assessed by the Competent Medical Board is permanent and that fixation of a monthly income of Rs 4,500 is very low, and the compensation should be enhanced., The learned counsel for the second respondent, the insurance company, argued that the appellant had not established her income or produced any documents to prove employment. In the absence of such evidence, the Tribunal correctly fixed the monthly income at Rs 4,500, and therefore the award should be confirmed and the appeal dismissed., This Court is of the considered opinion that the first respondent remained ex parte before the Tribunal. The second respondent could not dispute the accident or the Disability Certificate issued by the Competent Medical Board. Hence, the accident and permanent disability are not disputed., The appellant was about 39 years old at the time of the accident, a crucial age affecting her matrimonial life. No document was produced to establish her employment or income. In such cases, the claimant is presumed to be a homemaker, and the fixation of income for compensation can be based on that status., While considering the claimant as a homemaker, factors such as family circumstances, living standards, and other mitigating factors must be considered. Fixing a sum of Rs 4,500 per month for a homemaker is without basis and is inadequate, especially considering the accident occurred in 2017., The value and importance of homemakers in a family have never been undermined by the Courts. Their work, performed without time limits and driven by love and affection, cannot be compared with ordinary employment, and must be given due weightage when assessing compensation., In motor accident cases, Tribunals must consider fairness. Fairness in granting compensation is paramount, and the contributions of homemakers to the family should be assessed without bias, ensuring like cases are treated alike., Homemakers are nation builders; their contribution to family happiness translates into societal well‑being. The impact of the loss of a homemaker is immeasurable, and mitigating factors, family status, and the husband's income must be considered while fixing compensation., The Tribunal's mechanical approach of requiring proof of employment and income is improper in a beneficial legislation like the Motor Vehicles Act. Once the accident and negligence are established, claimants are entitled to 'just compensation'., The accident occurred in 2017; considering the family status, the monthly income of the appellant should be fixed at Rs 9,000, and a multiplier of 15 applied, taking into account her age. Accordingly, the compensation for loss of income is modified., The total compensation is modified as follows: Loss of Income Rs 9,72,000 (Rs 9,000 × 12 × 15 × 60 %); Medical Expenses Rs 3,10,000; Pain and Suffering Rs 1,00,000; Transport Expenses Rs 10,000; Attender Charges Rs 10,000; Nutrition and other Nourishment Expenses Rs 5,000; Total Rs 14,07,000. The appellant is entitled to this amount with interest at 7.5 % per annum., The second respondent, the insurance company, is directed to deposit the modified compensation amount of Rs 14,07,000 with interest at 7.5 % per annum within twelve weeks of receipt of this judgment. Upon deposit, the appellant may withdraw the amount by filing an appropriate application before the Tribunal, and payments shall be made through RTGS., The judgment and decree dated 18 March 2019 passed in Motor Accident Claim Petition No. 115 of 2017 on the file of the Chief Judicial Magistrate Court-cum-Motor Accidents Claims Tribunal, Salem, stands modified as above, and Civil Miscellaneous Appeal No. 2510 of 2019 is allowed in part. No order as to costs.
id_1223	0	Reportable Writ Petition (Civil) No. 607 of 2021 Versus The petitioner was a member of the National Technical Advisory Group on Immunization (NTAGI) and was advising the Government of India on vaccines. He has filed this writ petition in public interest seeking the following reliefs: (a) direct the respondents to release the entire segregated trial data for each phase of trials undertaken with respect to the vaccines being administered in India; (b) direct Respondent No. 2 to disclose the detailed minutes of the meetings of the Subject Expert Committee and the NTAGI with regard to the vaccines as directed by the 59th Parliamentary Standing Committee Report and the members who constituted the committee for each approval meeting; (c) direct Respondent No. 2 to disclose the reasoned decision of the Drug Controller General of India (DCGI) granting approval or rejecting an application for emergency use authorization of vaccines and the documents and reports submitted to the DCGI in support of such application; (d) direct the respondents to disclose the post‑vaccination data regarding adverse events, vaccinees who got infected with COVID‑19, those who needed hospitalization and those who died after such infection post‑vaccination and to widely publicize the data collection of such adverse events through advertisement of toll‑free telephone numbers where such complaints can be registered; (e) declare that vaccine mandates, in any manner whatsoever, even by way of making it a precondition for accessing any benefits or services, violate the rights of citizens and are unconstitutional; and (f) pass any other orders as the Supreme Court of India deems fit., In the writ petition, the petitioner highlighted the adverse consequences of emergency approval of vaccines in India, the need for transparency in publishing segregated clinical trial data of vaccines, the need for disclosure of clinical data, lack of transparency in regulatory approvals, minutes and constitution of the expert bodies, imperfect evaluation of Adverse Events Following Immunisation (AEFIs) and vaccine mandates in the absence of informed consent being unconstitutional. The petitioner further stated that coercive vaccination would interfere with the principle of informed self‑determination of individuals protected by Article 21 of the Constitution of India., Notice was issued in the writ petition on 09 August 2021. An additional affidavit was filed by the petitioner on 03 September 2021 raising additional grounds. It was averred in the additional affidavit that natural immunity is long‑lasting and robust in comparison to vaccine immunity and that vaccines do not prevent infection or transmission of COVID‑19. The petitioner further stated that vaccines are not effective in preventing infection from new variants of COVID‑19. The petitioner relied on news articles on the fourth nationwide serological survey conducted by the Indian Council of Medical Research (ICMR) in June and July 2021, according to which up to two‑thirds of the Indian population above the age of six years had already been infected with COVID‑19 and had antibodies specific to the SARS‑CoV‑2 virus. The petitioner also relied upon other news articles and research studies to state that there had been breakthrough infections even amongst vaccinated people. Urging that research has shown that vaccinated people also transmit the virus, the petitioner contended that vaccine mandates are meaningless., The petitioner filed an interlocutory application seeking a direction to restrain all authorities and institutions, public and private, from mandating the vaccine in any manner whatsoever as a precondition for accessing any service or on pain of any penalty. The petitioner drew the attention of the Supreme Court of India to various restrictions placed by State Governments, other employers and educational institutions on unvaccinated individuals. The petitioner contended that mandating vaccination for access to resources, public places and means of earning livelihood would violate fundamental rights, especially when scientific studies have shown that unvaccinated persons do not pose more danger of transmission of the virus compared to vaccinated persons., Respondent No. 1, the Union of India, raised a preliminary objection regarding the maintainability of the writ petition. The Union of India further contended that the serious threat posed by the unprecedented pandemic, which had devastating effects worldwide, called for emergency measures. It is accepted globally that vaccination for COVID‑19 is necessary to avoid infection. India was one of the few countries that succeeded in manufacturing vaccines for protection from COVID‑19, namely COVAXIN, the indigenous vaccine, and COVISHIELD, manufactured by the Serum Institute of India with technology transfer from AstraZeneca/Oxford University. The country started one of the largest inoculation programmes in the world in the larger public interest, while tackling challenges of vaccine hesitancy, the effect of the second wave of the pandemic and other adverse circumstances. The Union of India expressed serious doubts about the intention of the petitioner in filing this writ petition. As the pandemic has not ended, any interference with the steps taken by the Union on the basis of the advice given by the NTAGI and other expert bodies would provide impetus to the already prevailing vaccine hesitancy in certain sections of society. In its counter‑affidavit, the Union of India reminded the Supreme Court of India that decisions of domain experts should not normally be interfered with in judicial review and that the Supreme Court of India should not sit in appeal over a scientific process undertaken by domain experts on a subject which is not the expertise of any judicial forum. The long‑drawn procedure for making applications for issuance of licences for manufacturing vaccines and the statutory regime governing the same were referred to in the counter‑affidavit to emphasize that the Union of India has not been remiss in granting emergency licences. There is a detailed procedure for approval with checks at every stage which has been followed for grant of emergency approval. With respect to disclosure of clinical trial data, the Union of India referred to the National Ethical Guidelines for Biomedical and Health Research involving Human Participants published by the ICMR, which require privacy and confidentiality of human participants to be maintained. Accordingly, the Union of India contended that details pertaining to identity and records of participants in the clinical trial data cannot be disclosed to the public as per the prevailing statutory regime. It was asserted by the Union of India that the remaining data has already been made available in the public domain., On the subject of monitoring of Adverse Events Following Immunisation (AEFIs), the Union of India brought to the attention of the Supreme Court of India the established procedures and protocols for surveillance of AEFIs under the National Adverse Event Following Immunisation Surveillance Guideline. The multi‑tier structure comprising AEFI committees at the state and national levels, providing guidance, carrying out investigation and causality assessment, was elaborated upon. Details of the procedures followed in accordance with globally accepted practices were highlighted in the counter‑affidavit. According to the Union of India, all cases of serious and severe AEFI, including reported deaths, are subjected to scientific and technical review with causality assessments done at the state and national levels by trained experts to ascertain whether a particular AEFI can be attributed to the vaccine. The counter‑affidavit also made clear that COVID‑19 vaccination is voluntary and that the Government of India encourages all individuals to take vaccination in the interest of public health, as an individual's ill health has a direct effect on society. It was also made clear that COVID‑19 vaccination is not linked to any benefits or services., Counter‑affidavits have been filed by other respondents as well. The vaccine manufacturers, Respondents Nos. 4 and 5, brought to the notice of the Supreme Court of India that approval to their vaccines was granted after strict compliance with the prescribed procedure. The States of Tamil Nadu, Maharashtra, Delhi and Madhya Pradesh have also filed counter‑affidavits, justifying the restrictions placed on unvaccinated persons in the public interest. The details of the restrictions have been discussed later., We have heard Mr. Prashant Bhushan, learned counsel for the petitioner; Mr. Tushar Mehta, learned Solicitor General of the Union of India; Mr. S. Guru Krishnakumar, learned Senior Counsel for Respondent No. 4; Mr. Amit Anand Tiwari, learned Additional Advocate General for the State of Tamil Nadu; Mr. Rahul Chitnis, learned counsel for the State of Maharashtra; Ms. Mrinal Gopal Elker, learned counsel for the State of Madhya Pradesh; and Ms. Shyel Trehan, learned counsel for Respondent No. 5., Preliminary Issue I – Maintainability. The learned Solicitor General raised a preliminary objection as to the maintainability of the writ petition, which is filed in public interest. He stated that if entertained, the writ petition would harm public interest, as any observation made by the Supreme Court of India against vaccination would result in a potential threat of vaccine hesitancy., The petitioner is a paediatrician who was a member of the NTAGI earlier. It has been stated in the writ petition that he has a number of publications in internationally peer‑reviewed medical journals to his credit. The petitioner strongly believes that there cannot be coercive vaccination, especially of inadequately tested vaccines, which amounts to an intrusion into the individual's personal autonomy. He is of the firm opinion that an individual is deprived of the opportunity to give informed consent in the absence of availability of segregated data of clinical trials of the vaccines. He has also aired further grievances pertaining to poor evaluation and reporting of AEFIs., The Supreme Court of India is entitled to entertain a public interest litigation moved by a person having knowledge in the subject‑matter of the dispute and therefore having an interest therein, as distinguished from a busybody, in the welfare of the people. The Union of India has objected to the maintainability of the writ petition on the ground that the questions raised may raise doubts in the minds of the citizenry about vaccination, adding to the already existing vaccine hesitancy in the country. The consequence would be a debilitating effect on public health and therefore the petition cannot be said to be in public interest. In other words, the maintainability of the writ petition is raised on the ground that the sensitive issue of vaccination should not be dealt with by the Supreme Court of India, as it has the propensity of fuelling doubts about the efficacy of the vaccines., From the rejoinder affidavit submitted by the petitioner, we note that a petition had been filed by the petitioner earlier, during his tenure as a member of the NTAGI, with respect to the Rotavac vaccine claiming that adequate data from the clinical trials had not been provided to the NTAGI. The rejoinder affidavit further states that the petition was dismissed by the Supreme Court of India on the ground that the petitioner could not have filed the said petition while being a member of the NTAGI. The enthusiasm of the petitioner in approaching this Court has not gone unobserved. However, as the issues raised have a bearing on public health and pertain to the fundamental rights of the country's populace, we are of the opinion that they warrant due consideration by the Supreme Court of India. Therefore, we are not inclined to entertain the challenge mounted by the Union of India to the maintainability of the writ petition., Judicial review of executive decisions based on expert opinion. Yet another ground taken by the Union of India is that the Supreme Court of India has to yield to executive decision and action in the matter of administration of drugs and vaccines. The existence of any other possible view cannot enable the Supreme Court of India to interfere in matters relating to the opinion of domain experts by sitting in appeal over such decisions, while adjudicating a writ petition filed under Article 32 of the Constitution. The learned Solicitor General supported the stand of the Union of India with reference to the law laid down by this Court in Academy of Nutrition Improvement v. Union of India, G. Sundarrajan v. Union of India and Shri Sitaram Sugar Company Ltd. v. Union of India. Further, the learned Solicitor General relied upon judgments of the United States Supreme Court in Henning Jacobson v. Commonwealth of Massachusetts, Zucht v. King and in Docket No. 21A240 titled Joseph R. Biden v. Missouri dated 13 January 2022, and the judgment of the Supreme Court of New South Wales in Kassam v. Hazzard; Henry v. Hazzard to bolster his submissions that courts should not lightly interfere with matters of policy concerning the safety and health of the people and that it is not the court's function to determine the merits of the exercise of power by the executive. The learned Solicitor General was joined by Mr. Amit Anand Tiwari, learned Additional Advocate General for the State of Tamil Nadu, in emphasising the limited scope of judicial review in matters of policy framed on the basis of expert opinion., In opposition, the petitioner argued that matters of public importance involving invasion of fundamental rights of individuals cannot be brushed aside by the Supreme Court of India on the ground that they are beyond its jurisdiction. The Supreme Court of India has a duty to safeguard the fundamental rights of individuals and the issues raised herein are of seminal importance which ought to be decided after assessing the relevant material placed before the Court by both sides. Mr. Bhushan referred to the judgment of the High Court of New Zealand in Ryan Yardley v. Minister for Workplace Relations and Safety in support of his submission that the scientific data and evidence produced before the High Court of New Zealand was assessed to adjudge the efficacy of vaccines in preventing transmission of the COVID‑19 virus., It was further argued by Mr. Bhushan that the judgments relied upon by the Union of India are not applicable to the facts of this case. He relied upon judgments of the Supreme Court of India in Delhi Development Authority v. Joint Action Committee, Allottee of SFS Flats; Directorate of Film Festivals v. Gaurav Ashwin Jain; and an order of the Supreme Court of India in Distribution of Essential Supplies and Services During Pandemic, In re, and submitted that policy decisions taken by the executive are not beyond the scope of judicial review if they are manifestly arbitrary or unreasonable., Before examining the parameters of judicial review in this case, it is profitable to refer to judgments from beyond our borders which have dealt with the scope of judicial review in matters relating to public health and vaccinations. Compulsory vaccination against smallpox was the subject‑matter of Jacobson v. Massachusetts decided in 1905. The United States Supreme Court was of the opinion that the mandate of the local government for compulsory vaccination was binding on every individual. The safety and health of the people has to be protected by the government and the judiciary is not competent to interfere with decisions taken in the interest of public health. The Court can interfere by way of judicial review of legislative action in matters of public health only when there is no real or substantial relation to the object of the legislation or when there is a plain, palpable invasion of rights secured by fundamental law, thereby giving effect to the Constitution., In the wake of the COVID‑19 pandemic, restrictions on attendance at religious services in areas classified as red or orange zones were imposed by an executive order issued by the Governor of New York. The restrictions were challenged on the ground that they violated the free exercise clause of the First Amendment of the United States Constitution. By a majority of 6:3, the United States Supreme Court in Roman Catholic Diocese v. Cuomo granted injunctive relief, being satisfied that the executive order struck at the very heart of the First Amendment's guarantee of religious liberty. While doing so, the Court observed that its members are not public health experts and should respect the judgment of those with special expertise and responsibility in this area. However, the Constitution cannot be put away even in a pandemic. Justice Gorsuch, writing a concurring opinion, observed that Jacobson hardly supports cutting the Constitution loose during a pandemic. Gorsuch distinguished Jacobson, holding that the Court did not interfere with the challenged law only because it did not contravene the United States Constitution or infringe any right secured by it. He cautioned that the Court cannot stay out of the way in times of crisis when the Constitution is under attack. In his dissent, Chief Justice Roberts held that the injunction sought would not be in public interest, especially when it concerns public health and safety needs which call for swift government action in ever‑changing circumstances. He relied upon the earlier order passed by the United States Supreme Court in South Bay United Pentecostal Church v. Newsom, wherein it was recognised that courts must grant elected representatives broad discretion when they act in areas fraught with medical and scientific uncertainties., Biden v. Missouri related to vaccine mandates for healthcare providers. The Secretary of Health and Human Services issued a rule that vaccination of healthcare workers in facilities participating in the Medicare and Medicaid programmes was necessary for the health and safety of individuals to whom care and services are furnished. The rule was challenged and the United States District Courts for the Western District of Louisiana and the Eastern District of Missouri each entered preliminary injunctions against its enforcement. The appeals filed against the injunctions were rejected by the Fifth Circuit in Louisiana and the Eighth Circuit in Missouri. Aggrieved thereby, the Government moved the United States Supreme Court seeking a stay on the preliminary injunctions. While granting a stay, the United States Supreme Court held that the role of courts in reviewing decisions taken by the executive should be to ensure that the executive has acted within a zone of reasonableness., Having been aggrieved by certain orders of the Minister for Health and Medical Research that required people working in the construction, aged care and education sectors to be compulsorily vaccinated, Al‑Munir Kassam and three others, along with Natasha Henry and five others, approached the Supreme Court of New South Wales challenging the constitutional validity of the decision. While considering the grounds of challenge, the Supreme Court of New South Wales in Kassam v. Hazzard was of the view that it is not the Court's function to determine the merits of the exercise of power by the Minister to make the impugned orders, much less to choose between plausible responses to the risks to public health posed by the Delta variant. The Court further observed that it is not the Court's function to conclusively determine the effectiveness of alleged treatments for those infected or the effectiveness of COVID‑19 vaccines, especially their capacity to inhibit the spread of the disease, which are matters of merit, policy and fact for the decision‑maker and not the Court. The view of the Supreme Court of New South Wales was approved by the New South Wales Court of Appeal in Kassam v. Hazzard; Henry v. Hazzard., The Minister for Workplace Relations and Safety passed the COVID‑19 Public Health Response (Specified Work Vaccinations) Order 2021, by which it was determined that work carried out by certain police and defence force personnel could only be undertaken by workers who have been vaccinated. Three police and defence force workers who did not wish to be vaccinated sought judicial review of the order before the High Court of New Zealand. While adjudicating the dispute, the High Court of New Zealand expressed its opinion that choices made by governments on their response to COVID‑19 involve wide policy questions, including decisions on border closures, lockdowns, isolation requirements, vaccine mandates and many other measures, which are decisions for elected representatives to make. The High Court made it clear that it addresses narrower legal questions and that its function is not to address the wider policy questions. While referring to the evidence of experts, the High Court stressed the institutional limitations on its ability to reach definitive conclusions but clarified that it must exercise its constitutional responsibility to ensure that decisions are made lawfully. Relying upon a judgment of the Court of Appeal of New Zealand in Ministry of Health v. Atkinson, the High Court held that the Crown has the burden to demonstrate that a limitation of a fundamental right is demonstrably justified. The decision of the High Court in Ryan Yardley has been appealed by the Government of New Zealand before the New Zealand Court of Appeal., We shall now proceed to analyse the precedents of the Supreme Court of India on the ambit of judicial review of public policies relating to health. It is well settled that courts, in exercise of their power of judicial review, do not ordinarily interfere with policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. It is neither within the domain of the courts nor the scope of judicial review to enquire whether a particular public policy is wise or whether a better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer, wiser, more scientific or more logical. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary., The Supreme Court of India in a series of decisions has reiterated that courts should not rush in where even scientists and medical experts are careful to tread. The rule of prudence is that courts will be reluctant to interfere with policy decisions taken by the government in matters of public health after collecting and analysing inputs from surveys and research. Nor will courts attempt to substitute their own views as to what is wise, safe, prudent or proper in relation to technical issues relating to public health in preference to those formulated by persons said to possess technical expertise and rich experience. Where expertise of a complex nature is expected of the State in framing rules, the exercise of that power, if not demonstrated as arbitrary, must be presumed valid as a reasonable restriction on the fundamental right of the citizen and judicial review must halt at the frontiers. The Court cannot re‑weigh and substitute its notion of an expedient solution. Within the wide judge‑proof areas of policy and judgment open to the government, if mistakes are made, correction is not in court but elsewhere. That is the comity of constitutional jurisdictions in our jurisprudence. We cannot evolve a judicial policy on medical issues. All judicial thought, Indian and Anglo‑American, on the judicial review power where rules under challenge relate to a specialised field and involve sensitive facets of public welfare, has warned courts against easy assumption of unreasonableness of subordinate legislation on the strength of half‑baked studies of judicial generalists aided by ad‑hoc learning of counsel. However, the Court certainly is the constitutional invigilator and must act to defend the citizen in the assertion of his fundamental rights against executive tyranny draped in disciplinary power., There is no doubt that the Supreme Court of India has held in more than one judgment that where the decision of the authority is in regard to a policy matter, the Court will not ordinarily interfere since decisions on policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. However, this does not mean that courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and whether the policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. In Delhi Development Authority, the Supreme Court of India held that an executive order termed as a policy decision is not beyond the pale of judicial review. While the superior courts may not interfere with the nitty‑gritty of the policy, or substitute one by the other, it will not be correct to contend that the court shall lay its judicial hands off when a plea is raised that the impugned decision is a policy decision. Interference therewith by the superior court would not be without jurisdiction as it is subject to judicial review. It was further held that the policy decision is subject to judicial review on the following grounds: (a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the regulations; (c) if the delegatee has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy., During the second wave of the COVID‑19 pandemic, the Supreme Court of India in Distribution of Essential Supplies & Services during Pandemic, to which one of us was a party, dealt with issues of vaccination policy, pricing and other connected issues. While doing so, the Court held that policy‑making continues to be the sole domain of the executive and the judiciary does not possess the authority or competence to assume the role of the executive. It was made clear that the Court cannot second‑guess the wisdom of the executive when it chooses between two competing and efficacious policy measures. However, it continues to exercise jurisdiction to determine if the chosen policy measure conforms to the standards of reasonableness, militates against manifest arbitrariness and protects the right to life of all persons., There can be no ambiguity in the principles of law relating to judicial review laid down by the Supreme Court of India. A perusal of the judgments referred to above would clearly show that the Court would be slow in interfering with matters of policy, especially those connected to public health. There is also no doubt that wide latitude is given to executive opinion which is based on expert advice. However, it does not mean that the Court will not look into cases where violation of fundamental rights is involved and the decision of the executive is manifestly arbitrary or unreasonable. It is true that the Court lacks the expertise to arrive at conclusions from divergent scientific opinions but that does not prevent the Court from examining the issues raised in this writ petition, especially those that concern violation of Article 21 of the Constitution of India., Identifying the issues in the present matter, they can be divided as follows: (I) Vaccine mandates being violative of Article 21 of the Constitution of India; (II) Non‑disclosure of segregated clinical trial data in the public domain; (III) Improper collection and reporting of Adverse Events Following Immunisation; (IV) Vaccination of children., Mr. Bhushan submitted that there is nothing wrong in the Government encouraging people to get vaccinated. However, coercive vaccination by denying essential services is plainly unconstitutional, being violative of the principle of bodily autonomy and the right to access one's means of livelihood. Though the Union of India has made a categorical submission that vaccines are voluntary, the State Governments have been placing restrictions on unvaccinated people by denying them access to public places and services.
id_1223	1	He referred to an order passed by the Government of the National Capital Territory of Delhi on 08 October 2021 by which government employees, including frontline workers and healthcare workers, as well as teachers and staff working in schools and colleges, were not to be allowed to attend their respective offices and institutions without the first dose of vaccination, with effect from 16 October 2021; a directive issued by the Government of Madhya Pradesh on 08 November 2021 stating that it was mandatory to be vaccinated with two doses of the vaccine to obtain food grains at fair price shops; an order passed by the Government of Maharashtra dated 27 November 2021 requiring persons to be fully vaccinated if they were connected with any programme, event, shop, establishment, mall or for utilising public transport; an order issued by the Government of Tamil Nadu dated 18 November 2021 permitting only vaccinated people into open public places, schools, colleges, hostels, boarding houses, factories and shops, and other instances where students in the age group of 15 to 18 years were not permitted to appear for their examinations without being vaccinated., Mr. Bhushan contended that there is a need to balance individual rights with public interest concerning health. According to him, vaccine mandates can be based on the efficacy and safety of vaccination and the prevention of transmission. He submitted that there is sufficient evidence that natural immunity acquired from a COVID‑19 infection is long‑lasting and robust in comparison to vaccine‑induced immunity. Studies also indicate that vaccines do not prevent infection from the virus or transmission among people and are ineffective in preventing infection from new variants. Serological studies show that seventy‑five per cent of the Indian population has already been infected and is seropositive, therefore possessing better immunity than that provided by the vaccines. The vaccines administered in this country are authorised only for emergency use and the procedure for clinical trials of such vaccines has not been fully complied with. In view of the lack of transparency in disclosure of trial data resulting in absence of informed consent, any vaccine mandate would be unconstitutional. Mr. Bhushan further argued that every individual has personal autonomy and cannot be forced to be vaccinated against his will. For this proposition, he relied on the judgments of Common Cause (A Registered Society) v. Union of India, Aruna Ramachandra Shanbaug v. Union of India and K. S. Puttaswamy v. Union of India. He asserted that imposing restrictions on the rights of unvaccinated persons is unwarranted as there is no basis for discriminating against them. He relied upon scientific studies, expert opinions and news articles to contend that vaccinated people are also prone to infection and there is no difference between a vaccinated individual and an unvaccinated person with respect to transmission of the virus. As there is no serious threat of spread of the virus by an unvaccinated person compared to a vaccinated person, placing restrictions on unvaccinated persons is meaningless., Per contra, the learned Solicitor General of India contended that more than 180 crore doses had been administered, resulting in a substantial number of individuals in the country being vaccinated. He submitted that the vaccines have proved to be effective and safe and that any indulgence by the Supreme Court of India would result in vaccine hesitancy. The Government had taken extra care to appoint various committees to examine the efficacy, safety, immunogenicity and pharmacodynamics of the vaccines before granting approvals., The first material cited is a Science Brief titled ‘SARS‑CoV‑2 Infection‑induced and Vaccine‑induced immunity’ issued by the United States Centers for Disease Control and Prevention, updated on 29 October 2021. It concludes that numerous immunologic and epidemiologic studies have shown that vaccinating previously infected individuals significantly enhances their immune response and effectively reduces the risk of subsequent infection, including in the setting of increased circulation of more infectious variants. Although the Delta variant and some other variants have shown increased resistance to neutralisation by both post‑infection and post‑vaccination sera in laboratory studies, the observed reduction in effectiveness has been modest, with continued strong protection against hospitalisation, severe disease and death., The second material is a study conducted by researchers of Christian Medical College, Vellore, which concluded that among symptomatic COVID‑19 patients, prior vaccination with either Covishield or Covaxin reduced the severity of illness and mortality compared with unvaccinated patients. Full vaccination conferred a substantially higher protective effect over partial vaccination. Partially vaccinated patients experienced milder disease, reduced requirement for oxygen, hospital admission, intensive care unit admission and mortality. Fully vaccinated patients had significantly less disease severity, lower need for respiratory support, fewer hospital admissions, intensive care admissions and deaths. The majority of patients who required hospitalisation were unvaccinated., The third material is a study by researchers of the All India Institute of Medical Sciences, New Delhi, which evaluated the association between COVID‑19 vaccination status (number of doses received and time interval since the last dose) and clinical efficacy in India. The study found that both Indian vaccines provided significant protection against disease among people with clinical suspicion of COVID‑19 and protected against progression to severe disease among those who tested positive despite vaccination. The probability of hospitalisation was about eight times lower and intensive care unit admission or death about fourteen times lower among fully vaccinated patients compared with unvaccinated RT‑PCR‑positive patients. The protective efficacy showed a dose‑dependent effect, with maximum effectiveness among individuals who had received both doses at least two weeks before symptom onset., The fourth material is a study by researchers of AIIMS, Patna, which concluded that COVID‑19 vaccination was effective in infection prevention. One out of two individuals were protected against SARS‑CoV‑2 infection following partial vaccination and four out of five following full vaccination. Vaccinated individuals had shorter lengths of hospital stay compared with unvaccinated ones, and fully vaccinated individuals were less likely to develop severe disease., On behalf of the State of Tamil Nadu, Mr. Amit Anand Tiwari, learned Additional Advocate General, submitted that the restrictions placed by way of the circular dated 18 November 2021 are within the competence of the State in exercise of its powers under the Disaster Management Act, 2005 and the Tamil Nadu Public Health Act, 1939. Section 76(2)(b) of the latter empowers the State Government to make vaccinations compulsory in the event of a declaration by the Government of an outbreak of a notified disease. He submitted that the restrictions are in the larger public interest and cannot be said to be unreasonable, as they are an essential facet of the precautionary approach adopted by the State of Tamil Nadu in dealing with the unprecedented pandemic. According to Mr. Tiwari, these restrictions were aimed at curtailing the spread of COVID‑19, as unchecked spread could lead to further dangerous mutations. Referring to opinions of experts including the World Health Organization, the United Nations International Children’s Emergency Fund and the Oxford Vaccine Group, as well as scientific studies published in the New England Journal of Medicine, The Lancet and the International Journal of Scientific Studies, it was submitted that vaccination prevents severe disease, significantly reduces hospitalisation and mortality and continues to be highly effective in preventing severe disease and death. The measures were justified on the ground that they were not only aimed at the safety of particular individuals but also served the greater purpose of ensuring safety of the community at large., Mr. Rahul Chitnis, learned counsel appearing for the State of Maharashtra, referred to information provided by the World Health Organization to contend that vaccines save infected individuals from life‑threatening complications and untimely death, and therefore the vaccine mandate issued by the State of Maharashtra is in the interest of the general public. He argued that the restrictions imposed are reasonable, are temporary, contain exclusions and are reviewed periodically by the State to assess whether relaxations can be granted. He submitted that there is no compulsion to get vaccinated; however, in view of the serious threat that non‑vaccination poses to the right of life and personal liberty of the larger population, certain unavoidable restrictions have been imposed, especially given that strict adherence to social distancing and masking is significantly compromised in larger cities., The complaint of the petitioner in relation to prevention of access to essential resources in the State of Madhya Pradesh pertains to ration not being provided to unvaccinated persons through the public distribution system. The learned counsel for the State of Madhya Pradesh informed that the order dated 08 November 2021, which made vaccination mandatory for receiving ration from fair price shops, was not implemented and was eventually withdrawn on 07 January 2022., In the counter‑affidavit filed on behalf of the Government of the National Capital Territory of Delhi, it was submitted that the order dated 08 October 2021 was issued by the Delhi Disaster Management Authority after due application of mind, to control the spread of COVID‑19 and mitigate its effects. Under Section 6(2)(i) of the Disaster Management Act, the National Disaster Management Authority has been issuing orders directing State Governments and Union Territories, among other authorities, to take effective measures to prevent the spread of COVID‑19, and in furtherance of this, also permitted States to impose further local restrictions. The Delhi Disaster Management Authority, in a meeting held on 29 September 2021, decided to ensure one‑hundred per cent vaccination of all government employees, frontline workers, healthcare workers as well as teachers and staff working in schools and colleges, on the advice of medical and other experts. It was considered necessary as these individuals have frequent interaction with the general public and vulnerable sections of society and therefore pose a greater risk of spreading the virus. While an individual may have a right to decide against vaccination, the State has a statutory duty to regulate the interaction of unvaccinated persons within society in the interest of public health., In his rejoinder, Mr. Bhushan, while reiterating his submissions, took exception to the contradictory stand taken by the Union of India on COVID‑19 vaccination being voluntary and not mandatory. On one hand, the Union of India made it clear in the counter‑affidavit that vaccination is voluntary; on the other hand, a series of advisories and material had been filed by the Union of India supporting the claim of vaccination being mandatory. Mr. Bhushan submitted that the Union of India has not provided any material to the Supreme Court of India contrary to what has been supplied by the petitioner, furthering his scientific and legal contention that unvaccinated people pose no greater danger than vaccinated individuals in the matter of transmission of the COVID‑19 virus, and therefore there is no public health rationale for vaccine mandates. In addition, the learned counsel for the petitioner relied upon the opinion of Dr. Aditi Bhargava, a professor at the University of California, San Francisco and a molecular biologist with thirty‑three years of research experience, from her presentation before the United States Senate on 02 November 2021. Her opinion is that vaccines do not prevent infection and transmission and that natural immunity is the gold standard. According to Dr. Bhargava, there has been no documented case of a naturally immune person getting reinfected with severe disease or hospitalisation, whereas there have been thousands of cases of severe infection, hospitalisation and deaths in fully vaccinated people. Mr. Bhushan concluded by submitting that any restrictions placed on personal autonomy of individuals would be violative of Article 21 of the Constitution of India unless the criteria laid down in K. S. Puttaswamy (supra) are met., B. Evolution of COVID‑19 and vaccines\n\nCOVID‑19 emerged in late 2019. The World Health Organization officially declared the novel coronavirus outbreak a pandemic on 11 March 2020. The virus was detected in India in the last week of January 2020 and spread rapidly. As the threat of infections loomed large, an unprecedented national lockdown was announced on 24 March 2020, which extended for a few months, with restrictions being removed thereafter in a phased manner. Several countries imposed lockdowns to arrest the spread of the deadly disease, which led to a drastic loss of human life worldwide and presented a threat of extraordinary proportions to public health, food systems, economic and social conditions. Scientific studies and research for manufacture of vaccines to prevent severe infections were undertaken on an emergency basis. Towards the end of 2020, emergency vaccines began to be administered in the western part of the world. However, by then the spread of COVID‑19 around the globe was considerable., During the same period, a variant called B.1.1.7 was found in the United Kingdom and was renamed Alpha, as per the naming scheme recommended by the expert group convened by the World Health Organization, which also includes scientists from the WHO’s Technical Advisory Group on Virus Evolution (TAG‑VE). Another variant, B.1.351, later renamed Beta, was linked to a second wave of infections in South Africa. Both variants were identified as Variants of Concern by the World Health Organization on 18 December 2020, meaning that they possessed genetic changes affecting transmissibility, disease severity or immune escape. Soon thereafter, the highly transmissible Gamma variant was found in Brazil and identified as a Variant of Concern on 11 January 2021. In the first half of 2021, the Delta variant became the predominant variant in India and was believed to be sixty per cent more transmissible than the Alpha variant. Thereafter, Delta rapidly spread beyond India’s borders. Another variant, Omicron, surfaced in November 2021, whose spread was much more accelerated than earlier variants, including Delta. On the basis of evidence available as of 21 January 2022, the World Health Organization was of the opinion that Omicron had a significant growth advantage over Delta, leading to rapid community spread with higher incidence than previously seen in the pandemic. It was further observed that despite a lower risk of severe disease and death following infection, the very high levels of transmission nevertheless resulted in significant increases in hospitalisation and placed overwhelming demands on health‑care systems in most countries., The World Health Organization established the Technical Advisory Group on COVID‑19 Vaccine Composition (TAG‑CO‑VAC) in September 2021. In a statement issued on 11 January 2022 concerning the circulation of the Omicron variant, the group reviewed and assessed the public health implications of emerging Variants of Concern on the performance of COVID‑19 vaccines and provided recommendations on vaccine composition. The group is developing a framework to analyse evidence on emerging variants and to trigger recommendations for changing COVID‑19 vaccine strain composition, and will advise the World Health Organization on updated vaccine compositions as required. The statement noted that the available COVID‑19 vaccines focus on reducing severe disease and death, as well as protecting health systems. According to TAG‑CO‑VAC, vaccines that have received WHO Emergency Use Listing across several platforms provide a high level of protection against severe disease and death caused by Variants of Concern. The group acknowledged data indicating that vaccine effectiveness may be reduced against symptomatic disease caused by the Omicron variant, but maintained that protection against severe disease is more likely to be preserved. Together with the Strategic Advisory Group of Experts on Immunisation (SAGE) and its Working Group on COVID‑19 vaccines, TAG‑CO‑VAC has recommended COVID‑19 vaccines for priority populations worldwide to provide protection against severe disease and death and, in the longer term, to mitigate the emergence and impact of new variants by reducing the burden of infection., With the outbreak of the devastating pandemic, as many as 5,23,843 lives have been lost in this country, according to the latest data available on the website of the Ministry of Health and Family Welfare. Initially, the Government of India’s efforts were to protect people by arresting serious infection. With treatment protocols and clinical management protocols for COVID‑19 being revised periodically as more data and research on the virus became available, persons affected by the virus were treated with the information that was available at the point. Using whatever little was known about the virus in the initial stages, dedicated efforts were made to save countless lives in this country., With the approval of vaccines on an emergency basis in January 2021, there was some hope about preventing infections from the virus. Inoculation commenced slowly due to non‑availability of sufficient doses, but gained pace with increased manufacture by Respondents 4 and 5. With extensive awareness drives encouraging vaccination, more than 189 crore doses of vaccine have been administered within the country to date, according to data from the Ministry of Health and Family Welfare., The introduction of vaccines was understood to aid in preventing infections. To protect their populace, countries worldwide promoted vaccination, assuming that an uninfected person would not transmit the disease. Thereafter, with the mutation of the virus resulting in multiple Variants of Concern, breakthrough infections were noticed. Vaccinated people were found to be infected with the virus and could also act as carriers, transmitting the virus to others. Even in such a situation, there is no question of whether vaccination for COVID‑19 should be continued. The recommendations of the World Health Organization’s TAG‑CO‑VAC and SAGE make it clear that vaccines which have received emergency use approvals provide strong protection against serious illness, hospitalisation and death, and that getting vaccinated is one of the most crucial steps towards protecting oneself from COVID‑19, stopping new variants from emerging and helping end the pandemic. The World Health Organization’s public advice, as of 13 April 2022, states that getting vaccinated remains essential., The Union of India has placed considerable material on record in the form of scientific briefs and published studies which testify to the significance of vaccination as a crucial public health intervention in this pandemic and its continued benefits to individual health as well as public health infrastructure. Vaccination of a majority of the population of this country has undoubtedly been instrumental in preventing severe disease, hospitalisation and deaths, and has benefited the community at large, especially members with co‑morbidities, the elderly and sick persons. Even the petitioner is not opposed to the vaccination programme and does not challenge the vaccination drive of the Government of India, as he has reiterated during the course of his arguments. The petitioner’s exception to the vaccination programme is only to coercive vaccination through vaccine mandates, which place unjustifiable restrictions on those who wish not to be vaccinated., C. Personal autonomy and public health\n\nBefore dealing with the issue of coercive vaccination, it is necessary to consider whether the right to privacy of individuals can override public health, especially when the respondents submit that steps taken to restrict the rights of individuals are in the larger interest of public health. It is true that to be vaccinated or not is entirely the choice of the individual. Nobody can be forcefully vaccinated as it would result in bodily intrusion and violation of the individual’s right to privacy, protected under Article 21 of the Constitution of India. Personal autonomy was read into Article 21 by this Court in Common Cause (supra), relying on National Legal Services Authority v. Union of India and Aruna Ramachandra Shanbaug (supra). The Court emphasized the right of an individual to choose how to live his own life without any control or interference by others. It recognised the right of an individual to refuse unwanted medical treatment and not to be forced to take any medical treatment that is not desired. In view of the categorical statement of the Union of India that vaccination against COVID‑19 is voluntary, the question of any intrusion into bodily integrity does not arise for consideration in this case. However, the petitioner has asserted that limitations placed on access to public places and public resources for unvaccinated persons result in coercive vaccination, and therefore limit the right of unvaccinated persons to refuse medical treatment., Disclosure of data of a patient suffering from AIDS was the subject matter of a decision of this Court in X v. Hospital Z. Placing reliance on Kharak Singh v. State of Uttar Pradesh, Gobind v. State of Madhya Pradesh and a judgment of the United States Supreme Court in Jane Roe v. Henry Wade, this Court held that although non‑disclosure of medical information of an individual can be traced to the right to privacy protected under Article 21, it is not absolute and is subject to action lawfully taken for protection of health or morals or protection of the rights and freedoms of others., In Association of Medical Super‑Speciality Aspirants and Residents v. Union of India, to which one of us was a party, this Court, while considering the validity of service bonds to be executed at the time of admission to postgraduate and superspeciality courses in medical science, held that the right to life guaranteed by Article 21 means right to life with human dignity. Communitarian dignity has been recognised by this Court. While balancing communitarian dignity vis‑à‑vis the dignity of private individuals, the scales must tilt in favour of communitarian dignity. The laudable objective with which the State Governments have introduced compulsory service bonds is to protect the fundamental right of the deprived sections of society guaranteed to them under Article 21 of the Constitution of India. The contention of the appellants that their rights guaranteed under Article 21 have been violated is rejected., Strong reliance was placed by the petitioner on the judgment of the High Court of New Zealand in Ryan Yardley (supra). The principal contention of the applicants therein was that the impugned order requiring police and defence force personnel to be vaccinated placed unjustified limitation on the rights protected by the New Zealand Bill of Rights Act 1990, particularly the right to refuse medical treatment, the right to manifest religion, the right to be free from discrimination and other rights under Section 28 of the Act (including the right to work and the right of minority groups to enjoy their culture and practice their religion). The purpose of the order, as clarified by the Minister by way of an amendment order in February 2022, was to (a) avoid, mitigate or remedy the actual or potential adverse effects of the COVID‑19 outbreak (whether direct or indirect); (b) ensure continuity of services that are essential for public safety, national defence or crisis response; and (c) maintain trust in public services., The New Zealand High Court held that the impugned order limits the right of affected workers to refuse medical treatment as well as the right (or significant interest) to retain employment. While examining whether the limitation of those rights was justified, the Court noted that the order mandating vaccinations for police and defence personnel was imposed to ensure continuity of services essential for public safety, national defence or crisis response, and to promote public confidence in those services, rather than to stop the spread of COVID‑19. By October 2021, 83.1 per cent of police personnel had received at least one dose of the vaccine and 70.1 per cent had received both doses. When the order took effect on 17 January 2022, there were only 164 unvaccinated staff members in an overall workforce of 15,682. Similar figures applied to the New Zealand Defence Forces. The Court observed that the relatively low number of unvaccinated personnel may not, by itself, mean that the order was unreasonable, if evidence established that the presence of unvaccinated personnel, even in small numbers, created a materially higher risk to the remaining workforce. The Court referred to the evidence of Dr. Petrovsky, who stated that vaccination has potential benefit in reducing the severity of disease even with the Omicron variant, but that mandatory vaccination did not assist in preventing workers in affected roles from contracting COVID‑19 or transmitting it to others. The Court also considered evidence of Dr. Town, the Ministry’s Chief Science Adviser, who stated that vaccines show reduced effectiveness compared with Delta in terms of becoming infected with and transmitting Omicron. After weighing the evidence, the Court concluded that vaccination may still be effective in limiting infection and transmission, but at a significantly lower level than with earlier variants, and that vaccination does not prevent persons from contracting and spreading COVID‑19, particularly with the Omicron variant.
id_1223	2	The NZ High Court referred to an earlier judgment in Four Aviation Security Service Employees v. Minister of COVID-19 Response, where the precautionary principle had been applied, to make the point that even a modest vaccination protection on a modest number of personnel needs to be considered in the context of potential effects of a pandemic. The NZ High Court referred to a judgment of the Federal Court of Ontario in Spencer v. Attorney General of Canada to elaborate on the precautionary principle, as a foundational approach to decision-making under uncertainty, that points to the importance of acting on the best available information to protect the health of the citizens. In Four Aviation Security Service Employees (supra), which dealt with restrictions placed on aviation security workers, the NZ High Court held that even though the applicants therein were not being forcibly treated, they were required to be vaccinated as a condition of their employment, refusal of which led to termination. Observing that a right does not need to be taken away in its entirety before it is regarded as having been limited, the NZ High Court opined that the level of pressure in that case was significant and amounted to coercion, and therefore, the applicants' right to refuse to undergo medical treatment was limited. However, the said limitation was held to be justified. From the evidence adduced before the NZ High Court, it concluded that the vaccine was effective at reducing the transmission of the earlier variants of the virus and that it was also effective at reducing symptomatic infection and detrimental effects of the Delta variant. As the applicants were border workers interacting with international travellers who may be carrying the virus and given the likelihood of vaccines contributing to preventing the risk of transmission, the NZ High Court held that a precautionary approach, in doing everything that can be reasonably done to minimise risk of the outbreak or spread in strong public interest, is justified. Further, the curtailment of the right to refuse to undergo medical treatment was found to be proportionate to the objective, as the applicants, who worked as aviation workers, were situated in a key location where COVID‑19 might enter New Zealand., In Ryan Yardley (supra), the NZ High Court held that the principle in Four Aviation Security Service Employees (supra) is not directly applicable as the order was not promulgated to contain the spread of the virus but for the purpose of ensuring continuity of, and confidence in, essential services. Additionally, there was no evidence of a threat to the continuity of the police and NZDF services, which would enable the NZ High Court to give the benefit of the doubt to the New Zealand Crown in imposing measures to address that risk. Placing reliance on the evidence adduced as well as the public health advice which was to the effect that vaccine mandates were not considered necessary for addressing the risk of the outbreak or spread of COVID‑19, the High Court made it clear that while vaccination significantly improved the prospects of avoiding illness and death even with the Omicron variant, given the variant's propensity to break through vaccination barriers, it concluded that there was no real threat to the continuity of these essential services that the impugned order sought to address. Further, finding that suspension of the unvaccinated would address any potential problems, the terminations arising from the order in light of the temporary, albeit significant, period of peak impact of the infection, were found to be disproportionate and unjustified. While the Petitioner has sought support from this judgment to demonstrate how courts in other jurisdictions have struck down vaccine mandates taking into account Omicron's impact on the effectiveness of vaccines in addressing spread, we believe that this judgment may not be of much assistance to us for determining the issue at hand for two reasons. First, the judgment expressly recognised that the impugned vaccine mandate was not brought about to suppress the spread of the virus but to ensure continuity of, and confidence in, essential services, such as the police and the defence personnel, which we are not concerned with in the present case. Second, while the NZ High Court looked into depositions of expert witnesses to come to its own conclusion on efficacy of vaccines vis‑à‑vis the Omicron variant, the scope of our review does not entail assessment of competing scientific opinions, as the judiciary is not equipped to decide issues of medical expertise and epidemiology., The crucial point that requires to be considered by us is whether limitations placed by the Government on personal autonomy of an individual can be justified in the interest of public health in the wake of the devastating COVID‑19 pandemic. As stated, personal autonomy has been recognized as a critical facet of the right to life and right to self‑determination under Article 21 of the Constitution, by the Supreme Court of India in Common Cause (supra). In K.S. Puttaswamy (supra), the Supreme Court of India laid down three requirements to be fulfilled by the State while placing restraints on the right to privacy to protect legitimate State interests. It was held: The first requirement that there must be a law in existence to justify an encroachment on privacy is an express requirement of Article 21. For, no person can be deprived of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement. Second, the requirement of a need, in terms of a legitimate State aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary State action. The pursuit of a legitimate State aim ensures that the law does not suffer from manifest arbitrariness. Legitimacy, as a postulate, involves a value judgment. Judicial review does not reappreciate or second guess the value judgment of the legislature but is for deciding whether the aim which is sought to be pursued suffers from palpable or manifest arbitrariness. The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law. Hence, the threefold requirement for a valid law arises out of the mutual interdependence between the fundamental guarantees against arbitrariness on the one hand and the protection of life and personal liberty, on the other. The right to privacy, which is an intrinsic part of the right to life and liberty, and the freedoms embodied in Part III is subject to the same restraints which apply to those freedoms. While the judgment is in context of the right to privacy, the analysis with respect to the threefold requirement for curtailment of such right is on the anvil of the protection guaranteed to fundamental freedoms under Article 21, and therefore, would also be the litmus test for invasion of an individual's bodily autonomy under Article 21., The upshot of the above discussion leads to the following conclusions: a) Bodily integrity is protected under Article 21 of the Constitution of India and no individual can be forced to be vaccinated. b) Personal autonomy of an individual involves the right of an individual to determine how they should live their own life, which consequently encompasses the right to refuse to undergo any medical treatment in the sphere of individual health. c) Persons who are keen to not be vaccinated on account of personal beliefs or preferences, can avoid vaccination, without anyone physically compelling them to be vaccinated. However, if there is a likelihood of such individuals spreading the infection to other people or contributing to mutation of the virus or burdening of the public health infrastructure, thereby affecting communitarian health at large, protection of which is undoubtedly a legitimate State aim of paramount significance in this collective battle against the pandemic, the Government can regulate such public health concerns by imposing certain limitations on individual rights that are reasonable and proportionate to the object sought to be fulfilled., The submission made on behalf of the Petitioner is that the Delta and Omicron variants have shown breakthrough infections and it is clear from the scientific data that an unvaccinated person does not pose a greater risk than a vaccinated person in terms of transmission of the infection. While this submission has been dealt with subsequently, we believe that as long as there is a risk of spreading the disease, there can be restrictions placed on individuals' rights in larger public interest. Further, extensive material from experts has been placed before the Supreme Court of India, which extol the benefits of vaccination in tackling the severe and life‑threatening impact of the infection, specifically in terms of reduction in oxygen requirement, hospitalisation, ICU admissions and mortality, thereby easing the disproportionate burden from the upsurge of severe cases on the health infrastructure, which has already been witnessed by the country during the second wave of the pandemic where resources were woefully inadequate to stem the impact of the Delta variant on a then scarcely vaccinated population. We hasten to add that restrictions that are placed by the Government should not be unreasonable and are open to scrutiny by constitutional courts. It is difficult for us to envisage the myriad situations in dealing with the evolving pandemic that may call for restraint on individual rights in larger public interest and therefore, as and when such limitations are challenged, they can be assessed by constitutional courts to see whether they meet the threefold requirement laid down in K.S. Puttaswamy (supra)., The grievance of the Petitioner pertains to the vaccine mandates imposed by various State Governments and private organisations, resulting in restrictions on fundamental freedoms of persons who have chosen not to be vaccinated. The Petitioner has alleged duality in the stand of the Respondents, as on one hand, the Union of India has categorically stated that vaccines are voluntary and on the other, the State Governments have imposed and defended restrictions on access to public places and resources for persons who are unvaccinated. The Petitioner contested the vaccine mandates on the following grounds: (a) Natural immunity acquired from COVID‑19 infection is more long‑lasting and robust as compared to vaccine immunity. (b) Serological studies show that more than 75 per cent of the Indian population has already been infected and is seropositive and therefore, has better immunity to the infection than that which can be provided by the vaccine. (c) Vaccines do not prevent infection from or transmission of COVID‑19 and are especially ineffective in preventing against infection from new variants., In support of the above grounds, other than on the aspect of transmission of the virus, the Petitioner has relied on individual opinions of doctors and other advisors, news articles and findings from research studies, some of which are preprints meaning they have not been peer‑reviewed and report new medical research which has yet to be evaluated and therefore, should not be used to guide clinical practice, as explained by medRxiv, a platform where several preprint articles in the field of health sciences are published. Some of the material relied on by the Petitioner has been listed below: (a) An article in the scientific journal Nature, which states that studies have shown that memory plasma cells secreted antibody specific for the spike protein encoded in SARS‑CoV‑2 even 11 months after the infection and further that immune memory to many viruses is stable over decades, if not for a lifetime. (b) A study published in the European Journal of Epidemiology, which has analysed data from 68 countries available as of 03.09.2021 and has found that at the country level, there appears to be no discernible relationship between percentage of population fully vaccinated and new COVID‑19 cases. It is further stated therein that in fact higher percentage of population fully vaccinated have higher COVID‑19 per 1 million people. (c) The United Kingdom’s COVID‑19 vaccine surveillance report, Week 40, which appears to indicate negative efficacy against infection amongst all ages above 30 years, on the basis of data between week 36 and week 39 in 2021., While we are aware that courts cannot decide whether natural immunity is more resilient as compared to vaccine‑acquired immunity and we do not seek to substitute our own views in matters of differences in scientific opinion, we cannot help but notice that in the first article referred to above, published in Nature, it has been noted that immunity in convalescent individuals (i.e., those who have recovered from COVID‑19) can be boosted further by vaccinating them after a year. According to the said article, this results in the generation of more plasma cells, together with an increase in the level of SARS‑CoV‑2 antibodies that was up to 50 times greater than before vaccination. In the second article referred to above, published in the European Journal of Epidemiology, it has been mentioned therein that the interpretation of the findings should be as follows: The sole reliance on vaccination as a primary strategy to mitigate COVID‑19 and its adverse consequences needs to be reexamined, especially considering the Delta (B.1.617.2) variant and the likelihood of future variants. Other pharmacological and non‑pharmacological interventions may need to be put in place alongside increasing vaccination rates. We do not see how these conclusions and interpretations are in favour of an argument that natural immunity has proven to be better in protection against COVID‑19 infection, as compared to vaccine‑acquired immunity., In any event, what we have to assess, in accordance with the law laid down by the Supreme Court of India, is whether the Union of India has taken note of scientific and medical inputs and research findings in putting together its policy advocating vaccination for the entire eligible population. Article 47 of the Constitution of India imposes an obligation on the Union of India to improve public health. It is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health. From the several obligations of the State enshrined in Part IV of the Constitution, maintenance and improvement of public health rank high as these are indispensable to the very physical existence of the community., It should be noted that the submission made on behalf of the Petitioner championing natural immunity is from the perspective of a healthy person. Even the Petitioner does not dispute the fact that the same standard is not applicable to persons with co‑morbidities, the sick and elderly people. A cursory glance at the data recorded in the India Fact Sheet Vincent Panikurlangara v. Union of India (1987) 2 SCC 165 on the basis of the National Family Health Survey 5 (2019‑21) shows that (i) in the age group of 15‑49 years, 57 per cent of women and 25 per cent of men are anaemic, (ii) amongst individuals aged above 15 years, 13.5 per cent of women and 15.6 per cent of men have high or very high blood sugar level or take medicines to control blood sugar level, (iii) amongst individuals aged above 15 years, 21.3 per cent of women and 24 per cent of men have hypertension or elevated blood pressure or take medicines to control blood pressure. Further, as per the 75th Round National Sample Survey (NSS), conducted from July 2017 to June 2018, the average age of the elderly population in India was 67.5 years, with 67.1 per cent of India’s elderly living in rural areas. A study was conducted on the basis of the data from the NSS, aiming to highlight the vulnerability of the aged amidst the COVID‑19 pandemic. According to the study, out of every 100 elderly, 27.7 persons reported ailments during the previous 15 days, with cardiovascular conditions including hypertension (32.0%), endocrine conditions including diabetes (22.5%), musculoskeletal conditions (13.9%), infectious diseases (10.0%), and respiratory ailments (7.3%) being the top five conditions for seeking outpatient care among the elderly in the preceding 15 days. The Constitution, through Article 41, mandates the State to make available to the elderly the right to live with dignity and to provide the elderly, ill and disabled with assistance, medical facilities and geriatric care., Surely, the Union of India is justified in centering its vaccination policy around the health of the population at large, with emphasis on insulating the weaker and more vulnerable sections from the risk of severe infection and its consequences, as opposed to basing its decision keeping in mind the interests of a healthy few. Given the considerable material filed before the Supreme Court of India reflecting the near‑unanimous views of experts on the benefits of vaccination in dealing with severe disease, reduction in oxygen requirement, hospital and ICU admissions and mortality and stopping new variants from emerging, this Court is satisfied that the current vaccination policy of the Union of India, formulated in the interest of public health, is informed by relevant considerations and cannot be said to be unreasonable. Whether there is contrasting scientific opinion supporting the argument of natural immunity offering better protection against infection from COVID‑19 and whether these scientific opinions can be substantiated are not pertinent for determination of the issue before the Supreme Court of India., We now come to the crux of the challenge against coercive vaccine mandates, with respect to which the Petitioner has argued that they amount to restrictions on the fundamental rights of unvaccinated individuals and cannot be said to be proportionate, as according to the Petitioner, with the prevalence of the Omicron variant, unvaccinated people pose no greater danger to the transmission of the virus in comparison to vaccinated persons. It was claimed by the Petitioner that even if the vaccines reduced the severity of the disease, it was up to the individual to decide whether they wanted to be the beneficiary of vaccines. The State’s outlook was the protection of larger public health and with both the vaccinated and unvaccinated posing nearly equal risks in transmission of the infection to others around them, the State cannot impose restrictions targeting only the unvaccinated and impeding their right to access public resources. The Petitioner has thus alleged discrimination against the unvaccinated, who in the present situation are placed more or less on the same footing as vaccinated individuals with respect to the transmission of the virus. In support of his submissions, the Petitioner has relied on scientific studies and reports, some of which are listed below: (a) A letter published in the Lancet Regional Health, which states: In the UK it was described that secondary attack rates among household contacts exposed to fully vaccinated index cases was similar to household contacts exposed to unvaccinated index cases (25% for vaccinated vs 23% for unvaccinated). Twelve of 31 infections in fully vaccinated household contacts (39%) arose from fully vaccinated epidemiologically linked index cases. Peak viral load did not differ by vaccination status or variant type. The US Centres for Disease Control and Prevention identifies four of the top five counties with the highest percentage of fully vaccinated population (99.9‑84.3%) as high transmission counties. Many decision‑makers assume that the vaccinated can be excluded as a source of transmission. It appears to be grossly negligent to ignore the vaccinated population as a possible and relevant source of transmission when deciding about public health control measures. (b) A study conducted on breakthrough infection in Massachusetts in July 2021 and reported in the Morbidity and Mortality Weekly Report, which investigated 469 COVID‑19 cases that had been identified among the Massachusetts residents who had travelled to a town where multiple large public events had been held and 346 cases, i.e., 74 per cent of the infections occurred in fully vaccinated individuals. Findings from the investigation suggest that even jurisdictions without substantial or high COVID‑19 transmission might consider expanding prevention strategies, including masking in indoor public settings regardless of vaccination status, given the potential risk of infection during attendance at large public gatherings that include travelers from many areas with differing levels of transmission. The Petitioner has also cited various news articles reporting instances of breakthrough infections in fully vaccinated people, carrying as much virus as those who were unvaccinated, abroad as well as within India., We have already referred to the material placed by the Union of India and the States appearing before the Supreme Court of India. While there is abundant data to show that getting vaccinated continues to be the dominant expert advice even in the face of new variants, no submission nor any data has been put forth to justify restrictions only on unvaccinated individuals when emerging scientific evidence appears to indicate that the risk of transmission of the virus from unvaccinated individuals is almost on par with that from vaccinated persons. To put it differently, neither the Union of India nor the State Governments have produced any material before the Supreme Court of India to justify the discriminatory treatment of unvaccinated individuals in public places by imposition of vaccine mandates. No doubt that when COVID‑19 vaccines came into the picture, they were expected to address, and were indeed found to be successful in dealing with, the risk of infection from the variants in circulation at the time. However, with the virus mutating, we have seen more potent variants surface which have broken through the vaccination barrier to some extent. While vaccination mandates in the era of prevalence of the variants prior to the Delta variant may have withstood constitutional scrutiny, in light of the data presented by the Petitioner, which has not been controverted by the Union of India as well as the State Governments, we are of the opinion that the restrictions on unvaccinated individuals imposed through vaccine mandates cannot be considered to be proportionate, especially since both vaccinated and unvaccinated individuals presently appear to be susceptible to transmission of the virus at similar levels., Details of the vaccine mandates passed by the States of Maharashtra, Tamil Nadu, Madhya Pradesh and Delhi have been discussed earlier. It has come to our knowledge that since the judgment in this matter was reserved, the National Disaster Management Authority took a decision that there may not be any further need to invoke provisions of the Disaster Management Act for COVID‑19 containment measures, taking into consideration the overall improvement in the situation. Further, the States of Maharashtra and Tamil Nadu, taking into account the present situation in which near‑normalcy has been restored, have rolled back the restrictions placed on unvaccinated persons. The State of Madhya Pradesh had withdrawn the restrictions imposed on unvaccinated individuals in terms of withholding distribution of food grains from fair price shops and had notified this Court of the same during the hearing. Till the infection rate and spread remains low, as it is currently, and any new development or research finding comes to light which provides the Government due justification to impose reasonable and proportionate restrictions on the rights of unvaccinated individuals in furtherance of the continuing efforts to combat this pandemic, we suggest that all authorities in this country, including private organisations and educational institutions, review the relevant orders and instructions imposing restrictions on unvaccinated individuals in terms of access to public places, services and resources., While we appreciate that it is the domain of the executive to determine how best to encourage vaccination without unduly encroaching into the fundamental rights of unvaccinated individuals, we wish to highlight the mechanism of the health pass employed in France, as an apt example of a proportionate measure intended to cope with the perils of the spread of the virus. We understand that a health pass may take the form of either the results of a viral screening test not concluding that a person has been infected with COVID‑19, or proof of vaccination status, or a certificate of recovery following an infection. In a referral by the Prime Minister to review the law on managing the public health state of emergency, the Constitutional Council in France, in Decision no. 2021‑824 DC dated 05.08.2021, determined that the health pass did not infringe the right to personal privacy guaranteed by Article 2 of the Declaration of Human and Civic Rights of 1789 as the requirement did not introduce an obligation to vaccinate., Having expressed our opinion on the vaccine mandates in the prevailing context, we reiterate that vaccines effectively address severe disease arising from COVID‑19 infections, are instrumental in reducing oxygen requirement, hospital and ICU admissions and mortality and continue to be the solution to stopping new variants from emerging, as per the advice of the WHO. Since the time arguments were heard in the matter, we have come to know of more variants that have now come into circulation. Given the rapidly changing nature of the virus and the clear purpose served by the approved vaccines in terms of restoration and protection of public health, our suggestions with respect to review of vaccine mandates are limited to the present situation alone. This judgment is not to be construed as impeding, in any manner, the lawful exercise of power by the executive to take suitable measures for prevention of infection and transmission of the virus in public interest, which may also take the form of restrictions on unvaccinated people in the future, if the situation so warrants. Such restrictions will be subject to constitutional scrutiny to examine if they meet the threefold requirement for intrusion into rights of individuals, as discussed earlier., It is the complaint of the Petitioner that the COVID‑19 vaccines, manufactured by Respondent Nos. 4 and 5, have been given restricted emergency approval by the Drugs Controller General of India (DCGI) in a hurried and opaque manner. Mr. Bhushan argued that clinical trials in respect of the vaccines had not been completed and at present, the vaccines are only authorised for emergency use. According to the Petitioner, while clinical trials are scheduled to be completed in the year 2023, even the full dataset from the interim analysis conducted has not been made public. The disclosure of segregated data of clinical trials is essential to determine the adverse effects, if any, across various age groups and diverse populations and accordingly, enable individuals to make more informed decisions on whether to be vaccinated. Reliance was placed on an order of the Supreme Court of India in Aruna Rodrigues v. Union of India and a judgment of the Delhi High Court dated 15.01.2019 in W.P. (C) No. 343 of 2019 titled Master Hridaan Kumar (minor) v. Union of India with respect to the importance of disclosure of relevant technical data and informed consent. Additionally, the last amended version of the Declaration of Helsinki Ethical principles from medical research involving human subjects (hereinafter, the Declaration of Helsinki) and a statement by the WHO dated 09.04.2015 on public disclosure of clinical trial results (hereinafter, the WHO Statement on Clinical Trials) were pressed into service to establish the significance of disclosure of data of clinical trials, so as to enable the data to be assessed independently, and not only by the vaccine manufacturer who has a commercial interest in production of the vaccines. Mr. Bhushan submitted that there would be no invasion of privacy of individuals, if personal identification data and past medical history of the trial participants was redacted and the raw data pertaining to clinical trials is made public., The further grievance of the Petitioner pertained to lack of transparency in regulatory approvals, minutes of meetings and constitution of expert bodies. The Petitioner has sought clear detailing of the information furnished before, and evidence relied on by, the expert bodies such as the NTAGI and the Subject Expert Committee (SEC), the body which sends recommendations to the Central Drugs Standard Control Organisation, while deliberating on the applications and data of the vaccine manufacturers, and the names and institutional relationships of the experts who participated in each of these meetings. Mr. Bhushan relied on the 59th Report of the Parliamentary Standing Committee on Health and Family Welfare, in support of his submission on a need for transparency in the decision‑making of the CDSCO and other regulatory authorities., In response, the Union of India submitted that the procedure prescribed under the statutory regime was scrupulously followed before granting emergency approval of the vaccines manufactured by Respondent Nos. 4 and 5. As per the extant statutory regime, permission to import or manufacture new drugs including vaccines or to undertake clinical trials is granted by the Central Drugs Standard Control Organisation (CDSCO). The CDSCO, in consultation with the SEC, evaluates the applications for grant of such permission, which are to be accompanied with data as required under the Second Schedule to the New Drugs and Clinical Trials Rules, 2019 (hereinafter, the 2019 Rules) framed under the Drugs and Cosmetics Act, 1940.
id_1223	3	The Scientific Evaluation Committee (SEC) is a statutory body constituted by the Central Drugs Standard Control Organization (CDSCO) under Rule 100 of the 2019 Rules, comprising a group of experts with specialisation in relevant fields. According to the Union of India, the SEC examines the details of trials and results presented before it, interacts with the developers of the vaccines and gives them appropriate directions and eventually makes written recommendations by way of a resolution reflecting the collective opinion of all the domain experts. The trials have been registered on the database of the Clinical Trials Registry India, which is hosted at the Indian Council of Medical Research's National Institute of Medical Statistics. The provisions relating to Accelerated Approval Process under the Second Schedule to the 2019 Rules were pointed out to the Supreme Court of India, which stipulate that accelerated approval may be allowed to a new drug for a disease or condition taking into account its severity, rarity or prevalence and the availability or lack of alternative treatments, provided that there is a prima facie case of the product being of meaningful therapeutic benefit over the existing treatment. After granting accelerated approval for such a drug, post‑marketing trials shall be required to validate the anticipated clinical benefit. Applying these provisions, the CDSCO, in detailed consultation with the SEC and after examining the efficacy of the vaccine and its effects, granted permission for restricted emergency use of COVAXIN and COVISHIELD, manufactured by Respondent Nos. 4 and 5 respectively., As regards COVAXIN (Whole Virion Inactivated Coronavirus Vaccine), the Union of India stated that an application for permission to manufacture the vaccine was made by Bharat Biotech on 23 April 2020. The CDSCO, in consultation with the SEC, granted permission to Bharat Biotech for conducting Phase I/II clinical trials on 29 June 2020 and Phase III clinical trials on 23 October 2020. Respondent No. 4 submitted interim safety and immunogenicity data of Phase I and Phase II clinical trials carried out in the country, along with safety data, including serious adverse events data, of the ongoing Phase III clinical trial. The data from the various phases were evaluated and analysed by the SEC, which consisted of eminent experts from the fields of microbiology, medicine, pulmonary medicine, paediatrics, immunology and immunogenetics. The resolutions of the SEC meetings, which required the presence of the developer/manufacturer with the necessary information, have been posted on the website of the Ministry of Health and Family Welfare at every stage., In its meeting dated 2 January 2021, observing that updated data and a request for consideration of the proposal in the wake of a new mutation of the COVID‑19 virus showed that the vaccine had the potential to target mutated coronavirus strains, the SEC recommended grant of permission for restricted use in an emergency situation in clinical trial mode as a precaution. While granting such permission, Respondent No. 4 was directed to continue the ongoing Phase III clinical trial and submit data from the trial as and when available. Approval for restricted use in emergency situation in clinical trial mode with various conditions was granted by the CDSCO to Respondent No. 4 to manufacture COVAXIN on 3 January 2021. Subsequently, Respondent No. 4 submitted interim safety and efficacy data of the Phase III clinical trial, which was reviewed by the SEC in periodic meetings. In its meeting on 10 March 2021, the SEC, after detailed deliberation on the updated interim safety and efficacy data, recommended omission of the condition of use of the vaccine in clinical trial mode, but recommended that the vaccine continue to be used under restricted emergency use conditions. Following the expansion of the Government's vaccination drive to include individuals aged 18‑45 years, the SEC considered Bharat Biotech's proposal to unblind trial participants in that age group and recommended unblinding upon request of the participants or the principal investigator after two months from the second dose. On consideration of relevant data of Phase I and Phase II clinical trials along with safety data of six months of Phase III clinical trial, including serious adverse events, the SEC in its meeting dated 19 January 2022 noted no safety issues and that the vaccine maintained its efficacy, especially to avoid hospitalisation and severe infection. Accordingly, the SEC recommended that the status of approval of COVAXIN be upgraded from restricted emergency use to New Drug permission, subject to the condition that the firm continue to submit data of the ongoing clinical trial and monitor adverse events following immunisation. The Union of India pointed out that Phase I and Phase II clinical trial reports were published in The Lancet Infectious Diseases journal and that the Phase III trial manuscript had been submitted to The Lancet on 2 July 2021, a copy of which has been provided to the Supreme Court of India., COVISHIELD (ChAdOx1 nCoV‑19 Coronavirus Vaccine, recombinant) manufactured by Respondent No. 5 was developed by the Serum Institute of India in collaboration with Oxford University and AstraZeneca under technology transfer. While the clinical development, including Phase I clinical trial, was conducted in other countries, Phase II/III clinical trials were conducted by Respondent No. 5 in India. Application for permission to manufacture COVISHIELD for test, examination and analysis was first made by Respondent No. 5 on 3 May 2020. Safety, immunogenicity and efficacy data of Phase II/III clinical trials of the AstraZeneca vaccine carried out in the United Kingdom, Brazil and South Africa were submitted to the SEC, along with safety and immunogenicity data from the ongoing Phase II/III clinical trials in India. On reviewing this data and the approval dated 30 December 2020 granted by the United Kingdom Medicines and Healthcare Products Regulatory Authority (UK‑MHRA) for the AstraZeneca vaccine, the SEC in its meeting dated 1 January 2021 noted that the safety and immunogenicity data from the Indian study were comparable with the overseas data. After detailed deliberation and taking into account the emerging situation, the SEC recommended grant of permission for restricted emergency use of the vaccine, subject to regulatory provisions and conditions, including submission of relevant data from ongoing clinical trials nationally and internationally at the earliest. In its meeting dated 19 January 2022, the SEC considered the request of Respondent No. 5 to grant permission to manufacture the vaccine without the conditions for restricted emergency use, on the lines of marketing authorisation by the UK‑MHRA for the parent vaccine. After detailed deliberation, the SEC recommended grant of New Drug permission or regular approval, with conditions that data of ongoing clinical trials and adverse events following immunisation continue to be supplied and monitored., We were directed to Rule 25 of the 2019 Rules, framed under the Drugs and Cosmetics Act, 1940, which provides that a clinical trial shall be conducted in accordance with an approved clinical trial protocol and other related documents as per the requirements of Good Clinical Practice (GCP) guidelines and other rules. The expert committee set up by the CDSCO under Rule 25(vi) in consultation with clinical experts formulated the GCP guidelines for generation of data on drugs. The ethical principles that are part of those guidelines protect the privacy and confidentiality of human research subjects. The learned Solicitor General also relied upon paragraph 2.4.4 of the GCP guidelines, which require safeguarding the confidentiality of research data that might lead to identification of individual subjects. He further referred to the important role played by the Ethics Committee under Rule 11 of the 2019 Rules, which includes safeguarding the rights, safety and well‑being of trial subjects in accordance with the said rules. The 2019 Rules also empower the Ethics Committee to discontinue or suspend a clinical trial if it concludes that the trial is likely to compromise the rights, safety or well‑being of the trial subject. As per the Indian Council of Medical Research's National Ethical Guidelines for Biomedical and Health Research involving Human Participants, the four basic ethical principles for conducting biomedical and health research are respect for persons (autonomy), beneficence, non‑malfeasance and justice. These four principles have been expanded into twelve general principles, including the principle of ensuring privacy and confidentiality, which requires maintaining the privacy of potential participants, their identity and records, with access given only to authorised persons. Regarding transparency of expert bodies, the Union of India submitted that recommendations of the SEC in all its meetings are uploaded on the website of the CDSCO, and that detailed minutes of National Technical Advisory Group on Immunization (NTAGI) meetings are available in the public domain on both the ICMR and Ministry of Health and Family Welfare websites., The contention of Respondent No. 4 is that COVAXIN has undergone all clinical trials. In Phase III, trials revealed a 77.8 % efficacy against symptomatic COVID‑19 disease. The findings have been published in reputed peer‑reviewed journals and are readily available on the website of Respondent No. 4. Respondent No. 4 referred to the World Health Organization (WHO) Statement on Clinical Trials to submit that only key outcomes and findings are required to be made publicly available, and argued that it is in compliance with that statement because the key outcomes and results of the Phase III clinical trial have been published in The Lancet. On behalf of Respondent No. 5, it was submitted that the clinical data generated during the trials had been submitted to the regulatory authorities for obtaining permissions and licences, and that a peer‑reviewed study of partial clinical data of Phase II/III trials had already been published in reputed scientific journals, containing all information necessary for safeguarding the public and informing them of the credibility and efficacy of the vaccine. According to Respondent No. 5, the raw data of the clinical trials serve no greater public purpose than the data already available in the public domain, and all applicable medico‑legal, scientific and ethical requirements have been strictly adhered to., In rejoinder, the learned counsel for the petitioner argued that there is no transparency in the process of approvals of vaccines and relevant data is not always placed before the National Technical Advisory Group on Immunization. He referred to a news article in The Wire, according to which Dr. Jayaprakash Muliyil, a member of the NTAGI, had stated that the NTAGI had not recommended vaccination of children in the age group of 12‑14 years. He also drew the Court's attention to non‑supply of relevant data to the NTAGI at the time of approval of the Rotavac vaccine against rotavirus. The petitioner further complained of the haste shown in granting emergency approval to Respondent No. 4. The petitioner relied on a decision of the United States District Court for the Northern District of Texas dated 6 January 2022 in Public Health and Medical Professionals for Transparency v. Food and Drug Administration, which highlighted the need for transparency in disclosure of clinical trial data. It was reiterated by the petitioner that privacy of individuals would not be at risk as personal identification data can be redacted before disclosing segregated clinical trial data., It is settled law that courts cannot take judicial notice of facts stated in a news item published in a newspaper. A statement of fact contained in a newspaper is merely hearsay and therefore inadmissible in evidence unless proved by the maker of the statement appearing in court. In the absence of any record in the present case to substantiate the statement made by Dr. Jayaprakash Muliyil, we are not inclined to take judicial notice of the news article reported in The Wire, especially in view of the affidavit filed on behalf of the Union of India stating that the relevant data was examined by the expert bodies at all stages before granting emergency use approval to the vaccines. We are also of the opinion that the evidence relating to the approval process of the Rotavac vaccine has no relevance to the dispute in this case. On the basis of the two incidents, it cannot be concluded that the emergency use approvals to COVISHIELD and COVAXIN recommended by the SEC are not in accordance with the statutory regime., At this stage, it is worthwhile to refer to the statutory regime in place. According to Rule 19 of the 2019 Rules, no person, institution or organisation shall conduct a clinical trial of a new drug or investigational new drug except in accordance with the permission granted by the Central Licensing Authority (i.e., the CDSCO) and without following the protocol approved by the Ethics Committee for clinical trial, registered in accordance with the provisions of Rule 8. Rule 19(2) of the 2019 Rules provides that every person associated with the conduct of a clinical trial of a new drug or investigational new drug shall follow the general principles and practices specified in the First Schedule. The methodology to be adopted in a clinical trial is provided for in the First Schedule to the 2019 Rules, relevant clauses of which are as follows: (1) General Principles – the principles and guidelines for protection of trial subjects as described in the Third Schedule as well as Good Clinical Practice guidelines shall be followed in conduct of any clinical trial. (4) Conduct of Clinical Trial – the trial should be conducted in accordance with the principles specified in the Third Schedule. Adherence to the clinical trial protocol is essential and if amendment of the protocol becomes necessary the rationale shall be provided in the form of a protocol amendment. Serious adverse events shall be reported during the clinical trial in accordance with these Rules. (6) Reporting – the report of the clinical trial shall be documented in accordance with the approaches specified in Table 6 of the Third Schedule and shall be certified by the principal investigator or, if no principal investigator is designated, by each participating investigator. It is clear that there are stringent statutory requirements which have to be complied with by vaccine manufacturers and other participants during the different stages of clinical trials. Further, the GCP guidelines are statutorily required to be followed., The GCP guidelines further elaborate on the role of the Ethics Committee. According to the GCP guidelines, the Ethics Committee is an independent review board comprising medical/scientific and non‑medical/non‑scientific members, whose responsibility is to verify the protection of the rights, safety and well‑being of human subjects involved in a study. The independent review provides public reassurance by objectively, independently and impartially reviewing and approving the protocol, the suitability of the investigators, facilities, methods and material to be used for obtaining and documenting informed consent of the study subjects and the adequacy of confidentiality safeguards. Paragraph 2.4 of the GCP guidelines deals with ethical and safety considerations, providing that all research involving human subjects should be conducted in accordance with the ethical principles contained in the current version of the Declaration of Helsinki. Among the principles to be followed, the GCP guidelines require adherence to the principles of accountability and transparency and principles of public domain: accountability and transparency whereby the research is conducted in a fair, honest, impartial and transparent manner, with full disclosure of any conflict of interest; and principles of public domain whereby the research and any further research, experimentation or evaluation arising from it are brought into the public domain through scientific and other publications, subject to the rights available to the researcher under the law., The GCP guidelines have been formulated following the Declaration of Helsinki. Relevant portions of the Declaration are as follows: Privacy and Confidentiality – every precaution must be taken to protect the privacy of research subjects and the confidentiality of their personal information. Research Registration and Publication and Dissemination of Results – researchers, authors, sponsors, editors and publishers have ethical obligations with regard to the publication and dissemination of research results. Researchers have a duty to make publicly available the results of their research on human subjects and are accountable for the completeness and accuracy of their reports. Negative, inconclusive as well as positive results must be published or otherwise made publicly available. Sources of funding, institutional affiliations and conflicts of interest must be declared. Reports of research not in accordance with the principles of this Declaration should not be accepted for publication. The World Health Organization Statement on Clinical Trials requires that the main findings of clinical trials be submitted for publication in a peer‑reviewed journal within twelve months of study completion and be published through an open‑access mechanism unless a specific reason prevents open access, or otherwise be made publicly available within twenty‑four months of study completion. In addition, the key outcomes are to be made publicly available within twelve months of study completion by posting to the results section of the primary clinical trial registry, or, if a registry without a results database is used, by posting on a free‑to‑access, publicly available, searchable institutional website of the regulatory sponsor, funder or principal investigator., The Union of India states that the GCP guidelines are being scrupulously followed. The principles of public domain in the GCP guidelines provide for research, experimentation or evaluation in response to the research to be brought into the public domain, and the results of the clinical trials are generally made known through scientific and other publications. The requirement of publication, according to the WHO, also relates to the main findings of clinical trials to be published in a peer‑reviewed journal and the key outcomes to be made publicly available within twelve months of study completion. The petitioner complains of opacity in clinical trials because the general public does not have access to segregated primary datasets. There is no challenge by the petitioner to the GCP guidelines. As required by the WHO Statement on Clinical Trials and the GCP guidelines, the findings of the clinical trials and the key outcomes have been published. In light of the existing statutory regime, we do not see it fit to mandate disclosure of primary clinical trial data when the results and key findings have already been published., After examining the judgment of the United States District Court for the Northern District of Texas, we are afraid that the decision cannot be said to be relevant for adjudication of the dispute in the present case. The grievance of the plaintiff in that case pertained to all data and information for the Pfizer vaccine, enumerated under the Freedom of Information Act, not being provided by the United States Food and Drug Administration. The US District Court referred to the Freedom of Information Act to hold that the citizenry has a right to be provided with the relevant information pertaining to the Pfizer vaccine and that such information is often useful only if it is timely. The US District Court directed expeditious completion of the plaintiff's request after concluding that the request under the Freedom of Information Act was of paramount importance. We note that with respect to COVAXIN and COVISHIELD, results of clinical trials have been published in accordance with our statutory regime. Reliance placed by the petitioner on European Medicines Agency policy on publication of clinical data for medicinal products for human use is also not relevant, as the GCP guidelines relating to the disclosure of clinical trial data, framed under the 2019 Rules, currently govern the field of disclosure of clinical trial data in India., An analysis of the submissions made by the learned counsel for the parties and a close scrutiny of the material placed on record would show that there is a strict statutory regime in force for grant of approvals to vaccines. Specialist bodies established under the provisions of the Drugs and Cosmetics Act, 1940 and the rules framed thereunder comprise domain experts who conduct a thorough scrutiny of the material produced by the manufacturers before granting approval. The information provided on behalf of the Union of India substantiates that the data provided by the vaccine manufacturers was considered by the SEC over a period of time and several conditions were imposed at the time of recommending approvals, which have been modified or lifted subsequently on availability of further data arising from the clinical trials before the SEC, as can be seen from the minutes of the SEC meetings available on the website of the Ministry of Health and Family Welfare. We do not agree with the petitioner's submission that emergency approvals to the vaccines were given in haste without properly reviewing the data from clinical trials. We are also of the opinion that the Parliamentary Standing Committee report relied upon by Mr. Bhushan is not relevant and the lapses pointed out therein pertain to the year 2011, which have no obvious connection to the grant of approval to Respondent Nos. 4 and 5 for the restricted emergency use of their respective vaccines. As long as the relevant information relating to the minutes of the meetings of the regulatory bodies and the key outcomes and findings of the trials are available in the public domain, the petitioner cannot contend that every minute detail relating to clinical trials be placed in the public domain to enable an individual to take an informed, conscious decision to be vaccinated or not. Given the widespread affliction caused by the virus, there was an imminent need of manufacturing vaccines which would keep the infection at bay. Both vaccines have been approved by the World Health Organization as well. A perusal of the material placed on record would show material compliance with the procedure prescribed under the Drugs and Cosmetics Act, 1940 and the 2019 Rules before grant of approval for the emergency use of the two vaccines. However, it is made clear that subject to the protection of privacy of individual subjects and to the extent permissible by the 2019 Rules, the relevant data which is required to be published under the statutory regime and the WHO Statement on Clinical Trials shall be made available to the public without undue delay, with respect to the ongoing post‑marketing trials of COVAXIN and COVISHIELD as well as ongoing clinical trials or trials that may be conducted subsequently for approval of other COVID‑19 vaccines or vaccine candidates., The contention of the petitioner is that there have been several adverse effects from vaccines, including deaths, and that the government's mechanisms for handling adverse events are deficient. According to the petitioner, during Phase III trials, where small controlled trials of a limited number of participants are conducted, a significant increase in adverse events may not be seen. But after licensure, when the vaccines are administered to the masses, rare reactions show up, which is why Phase IV post‑marketing trials are legally mandated. The petitioner pointed out that the World Health Organization revised the classification of adverse events following immunisation (AEFIs) in 2018. As per the revised mechanism, only reactions that are previously acknowledged to be caused by the vaccine are classified as vaccine‑related reactions. Reactions observed during post‑marketing surveillance are not considered to have a causal association with the vaccine if a significant increase in such reactions during Phase III trials had not been recorded. The petitioner argued that this acquires significance in the context of trials conducted in this country, as the control arm in Phase III did not proceed as intended, with several members of the original control group prematurely unblinded and offered the vaccine. Consequently, there are no controls to compare against, making it difficult to ascertain which adverse events are caused by the vaccine. Therefore, reactions which are not known reactions to the vaccine are not considered AEFIs. In light of this, it is necessary for the authorities to carefully monitor all vaccine recipients and publicly record all adverse events., The petitioner further contended that the adverse events reporting system in India is not transparent, with obscure investigation and follow‑up of deaths and other serious adverse events after COVID‑19 vaccination. The petitioner relied on a letter published in The Hindu on 17 March 2021, written by a group of experts in public health, ethics, medicine, law and journalism to the Minister for Health & Family Welfare and the Director General of Health Services, appealing for time‑bound and transparent investigation following deaths and serious adverse effects after COVID‑19 vaccination. A presentation made by the National AEFI Committee in a meeting held on 31 March 2021 was referred to by the petitioner to claim that complete documentation was not available for all the severe and serious adverse events (including deaths) that had occurred till that time. Additionally, it was contended that no data pertaining to the AEFIs already classified nor any analysis of the same had been published publicly to date. The petitioner also drew the Court's attention to the Vaccine Adverse Event Reporting System (VAERS) in the United States, which publishes all vaccine injury reports every Friday, received up to about a week prior to the release date. It was brought to the Court's notice that 77 314 adverse events have been reported in India as on 12 March 2022, amounting to 0.004 % of the total vaccination. The petitioner pointed out that the percentage of adverse events reported in Europe is much larger than the percentage identified in India, which would show that correct figures are not being published by the Government., On behalf of the Union of India, the procedures and protocols for monitoring adverse events following immunisation under the National Adverse Event Following Immunisation Surveillance Guideline were elaborated upon. The National Adverse Event Following Immunisation Surveillance Secretariat, established in the Immunisation Technical Support Unit in 2012, has staff dedicated to managing the AEFI surveillance system. It was further strengthened by the National Adverse Event Following Immunisation Surveillance Technical Collaborating Centre, comprising experts from Lady Hardinge Medical College and Allied Hospitals in New Delhi. Adverse Event Following Immunisation Committees were formed at the national and state levels to provide guidance to the National AEFI Surveillance and to carry out documentation, investigation and causality assessment, besides training and orientation of health‑care workers and others involved in AEFI. According to the Union of India, a foolproof protocol for reporting and causality assessment for any AEFI with the Universal Immunisation Programme and non‑Universal Immunisation Programme vaccines has been established. The National AEFI Committee receives periodical reports regarding minor AEFIs, severe AEFIs and serious AEFIs. Online reporting of all serious and severe AEFIs at the district level to be communicated to relevant authorities at the state or national level is done on a web‑based portal, SAFEVAC (Surveillance and Action for Events Following Vaccination). All serious and severe adverse events following vaccination even at district level are uploaded online on SAFEVAC.
id_1223	4	It was submitted on behalf of the Union of India that case details, scanned copies of reports are uploaded on SAFEVAC, which also has facilities for generating dashboards and line‑lists at different levels. Further, a similar feature of reporting of all Adverse Events Following Immunisation (including minor) by the vaccinator was made available on the Co‑WIN portal. District Immunisation Officers (DIOs) were given the facility to report Adverse Event Following Immunisation cases about which they have information from such individuals who do not have access to Co‑WIN. Departmental orders and standard operating procedures have been issued for further investigations and sharing of hospital records by the DIOs through Co‑WIN. The Union of India has brought to the notice of the Supreme Court of India that an alignment with the Pharmacovigilance Programme of India (PvPI) under the Indian Pharmacopoeia Commission has been developed for receipt of information regarding Adverse Event Following Immunisation cases from around 300 Adverse Drug Reaction Monitoring Centres in medical colleges and large hospitals. The Union of India has highlighted that information from the PvPI and the Central Drugs Standard Control Organization (CDSCO) are collated and studied in case of any new, previously unknown events identified through Adverse Event Following Immunisation surveillance. A press release of the Ministry of Health and Family Welfare dated 17.02.2017 titled “Maximum Possible Marks to Indian NRA in WHO Assessment” has been placed before the Supreme Court of India to state that the Adverse Event Following Immunisation Surveillance System in India (which is in use for COVID‑19 vaccination) has been approved by global experts in an assessment conducted by the World Health Organization in 2017. Given the novel nature of the virus, membership of the National Adverse Event Following Immunisation Committee has been expanded to include neurologists, cardiologists, respiratory medicine specialists and medical specialists, with even States and Union Territories requested to expand their Adverse Event Following Immunisation Committees on a similar scale to strengthen surveillance for COVID‑19 vaccines. Causality assessment of Adverse Event Following Immunisation cases is conducted at the state and the national levels by experts trained as per the causality assessment checklist, based on the definition and algorithm developed by the World Health Organization. Once approved by experts of the National Adverse Event Following Immunisation Committee, results of causality assessment of Adverse Event Following Immunisation cases are made available in the public domain and are shared with the CDSCO, amongst other authorities, for appropriate regulatory action., As regards the present status of Adverse Event Following Immunisation surveillance for COVID‑19 vaccination, it was submitted that as the causality assessment of reported Adverse Event Following Immunisation cases is a time‑consuming process, a method of rapid review and assessment had been initiated at the national level to quickly review available information in each case and look for trends in reporting of specific events or unusual cases requiring further early investigation and assessment. All cases of serious and severe Adverse Event Following Immunisation, including reported deaths, are subjected to rapid reviews, analysis and causality assessment done by a team of trained subject experts. It was clarified that mere reporting of an Adverse Event Following Immunisation case should not be attributed to the vaccine unless proved by the causality assessment analysis. The National Expert Group on Vaccine Administration for COVID‑19 (NEGVAC), an additional body of experts, is also involved in providing guidance on vaccine safety and surveillance, thus aiding in the prompt identification of Adverse Event Following Immunisation for the purpose of identifying and understanding evolving trends in the disease and taking prompt action. 2,116 serious and severe Adverse Event Following Immunisation have been reported from 1,19,38,44,741 doses of COVID‑19 vaccine administered till 24.11.2021. While a report of rapid review and analysis completed for 495 cases had been submitted, a further report of 1,356 serious and severe Adverse Event Following Immunisation cases had been presented to the NEGVAC and the rapid review and analysis of balance cases was underway. Press releases around a report on bleeding and clotting events following COVID‑19 vaccination being submitted to the Ministry of Health and Family Welfare by the National Adverse Event Following Immunisation Committee and on clarification on deaths following vaccination and process of causality assessment were placed before the Supreme Court of India. Therefore, the Union of India submitted that there was continuous monitoring and examination of Adverse Event Following Immunisation cases in India and there is no basis for the allegations around Adverse Event Following Immunisation not being properly collected and lack of transparency in their investigation., From the material placed before us, we note that the National Adverse Event Following Immunisation Surveillance Secretariat has been functioning for 10 years and, as has been pointed out, there is a well established protocol in place for identification and monitoring of Adverse Event Following Immunisation. The website of the Ministry of Health and Family Welfare carries the results of causality assessment of Adverse Event Following Immunisation cases, from which the public can obtain relevant information pertaining to Adverse Event Following Immunisation. We have been informed that a thorough causality assessment analysis of Adverse Event Following Immunisation is carried out by experts and not every severe disease and death can be attributed to vaccination. Reactions are examined by experts specifically trained to undertake causality analysis before notifying such reactions as adverse events arising from vaccination. There is a well defined mechanism for collection of data relating to adverse events that occur due to COVID‑19 vaccines and the Government of India has taken steps to direct all concerned medical professionals at the ground level to report adverse events. Even medical practitioners at private hospitals are associated with reporting of adverse events. Therefore, we are not inclined to accept the broad‑strokes challenge mounted by the Petitioner that the surveillance system of Adverse Event Following Immunisation in this country is faulty and the correct figures of those who have suffered any side effects, severe reactions or deaths post‑inoculation have not been disclosed., As regards the contention of the Petitioner on abandoning of Phase III trials, we note that unblinding of participants during the Phase III trial was done on the recommendation of the Scientific Evaluation Committee (SEC). The Union of India has emphasized that at every stage, the deliberations of domain experts, which involved discussions with the manufacturers, focused on safety and immunogenicity of the vaccines and it was only when there was consensus among domain experts that it was safe to extend the immunisation drive beyond the category of healthcare workers/frontline workers that the appropriate decisions were taken. In doing so, the available trial data, trajectory of the pandemic, evidence, future contingencies and several other factors have always been heeded. There is no challenge to the decision of the SEC, a body of domain experts, as being unreasonable or arbitrary, nor have we been called upon to determine whether adequate time was devoted to recognise all relevant reactions as vaccine‑related reactions prior to such unblinding. What the Petitioner seeks is the monitoring of all adverse events and publication of the results of investigation. The Union of India has painstakingly taken the Supreme Court of India through the details of the procedure followed to closely monitor, review and escalate the incidence of Adverse Event Following Immunisation to appropriate authorities. As regards previously unknown or unidentified reactions seen during the monitoring of Adverse Event Following Immunisation at the time of vaccine administration, the Union of India has elaborated on the role of the Pharmacovigilance Programme of India and the CDSCO, which collate and study such reactions. We believe this adequately addresses the Petitioner’s concerns, as this Court has been informed that previously unidentified events are also being taken into consideration and investigated. We trust the Union of India to have the appropriate authorities ensure that this leg of the Adverse Event Following Immunisation surveillance system is not compromised while meeting the requirements of the rapid review and assessment system followed at the national level., The Petitioner had taken issue with the present system to the extent it allows only District Immunisation Officers or the vaccinators to report Adverse Event Following Immunisation. According to the Petitioner, the repository of Adverse Event Following Immunisation should be as detailed as the Vaccine Adverse Event Reporting System (VAERS) in the United States of America. The Petitioner further submitted that individuals and doctors must be able to report adverse events, with the reporter being given a unique identification number and the reports being openly accessible. The response of the Union of India on this issue is that the District Immunisation Officers have been instructed to set up a network with private hospitals to report Adverse Event Following Immunisation. Training has been provided to state officers, medical officers, private practitioners and frontline health workers on their role in Adverse Event Following Immunisation surveillance. Even auxiliary nurse midwives have been instructed to notify all Adverse Event Following Immunisation. However, we are in agreement with the suggestion made by the Petitioner that there should be a mechanism by which individuals and private doctors should be permitted to report suspected adverse events. Information relating to adverse effects following immunisation is crucial for the purpose of understanding the safety of the vaccines that are being administered, apart from being instrumental in further scientific studies around the pandemic. There is an imminent need for collection of requisite data of adverse events and wider participation of people in reporting the adverse events is necessary for the purpose of gathering correct information. Thus, the Union of India is directed to facilitate the reporting of suspected adverse events by individuals and private doctors on a virtual platform and the reports so made shall be publicly accessible after being given unique identification numbers, without listing any personal or confidential data of the persons reporting. All necessary steps to create awareness of, and to navigate, this platform for self‑reporting shall be effectuated by the Government, roping in and training relevant participants right from the ground level of vaccine administration., The opinion of the Petitioner is that children are at almost no risk from COVID‑19 and instances of previously healthy children requiring hospitalisation due to COVID‑19 are exceedingly rare. While referring to articles in Nature and The Lancet, the Petitioner contended that scientific evidence shows that risk of administering vaccines to children outweighs the benefits offered by the vaccine in children. The Petitioner further submitted that serological studies would show that a large number of children have already acquired antibodies to COVID‑19. The Petitioner has highlighted the risk of myocarditis associated with the messenger RNA vaccines, on the basis of which several European countries have recently stopped the use of Moderna vaccines for those under the age of 30. He has also pointed out that these risks had not been identified in the initial vaccine trials as the trial size was too small to uncover rare risks, which were discovered after mass vaccination. The Petitioner has sought for results as well as the primary data of clinical trials conducted on the paediatric population to be made public., In response thereto, the Union of India contended that paediatric vaccination is advised by global agencies such as the World Health Organization, the United Nations International Children's Emergency Fund and the Centers for Disease Control and Prevention. Expert opinion in India is in tune with global consensus in favour of vaccination of children. We are informed that 8,91,39,455 doses of COVAXIN have been administered to individuals in the age group of 15 to 18 years as on 12.03.2022. The Adverse Event Following Immunisation reported are 1,739 minor complaints, 81 serious complaints and 6 severe. According to the Union of India, the said data would show that the vaccine does not pose threat to the safety of children. As regards the clinical trials, paragraph 2.4.6.2 of the Good Clinical Practice guidelines were relied on to show that children are not required to be involved in research that could be carried out equally well with adults and further that, for the clinical evaluation of a new drug, study in children should be carried out after the Phase III clinical trials in adults. It has been stated that paediatric vaccination was considered at a stage where more than substantial data on safety and immunogenicity of COVAXIN in adults was available. To avoid any risks, clinical trials were also conducted on a limited number of children as per the protocol approved by domain experts. Having found no serious adverse event in the said trials, paediatric vaccination was initiated in a phased manner, starting from the eldest paediatric age group of 15 to 18 years. On 12.05.2021, on the basis of recommendations of the SEC, the Central Drugs Standard Control Organization granted permission to Respondent No. 4 to conduct Phase II/Phase III clinical trials of COVAXIN for the age group of 2 to 18 years. Thereafter, Respondent No. 4 had submitted an application for grant of permission to manufacture COVAXIN paediatric vaccines for emergency use, which was subsequently granted by the CDSCO. It was argued on behalf of the Union of India that expert opinion is to the effect that paediatric vaccinations are always preventive in nature and are administered to avoid any risk of infection and of prolonged clinical symptoms., This Court cannot sit in judgment of leading scientific analysis relating to the safety of paediatric vaccination. Experts in science may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects, but that does not entitle the Court to second‑guess expert opinion, on the basis of which the Government has drawn up its policies. The decision taken by the Union of India to vaccinate the paediatric population in this country is in tune with global scientific consensus and expert bodies like the World Health Organization, the United Nations International Children's Emergency Fund and the Centers for Disease Control and Prevention have also advised paediatric vaccination. It would not only be beyond our jurisdiction but also hazardous if this Court were to examine the accuracy of such expert opinion, based on competing medical opinions. As already stated, the scope of judicial review does not entail the Court embarking upon such misadventures. Therefore, we reject the contention of the Petitioner that this Court has to intervene in paediatric vaccination on the ground that it is unscientific., With respect to results of clinical trials, we note that the Union of India has stated that the results of clinical trials of COVAXIN for the paediatric population have already been published. We also note that for the age group of 12 to 14 years, Biological E’s Corbevax is being administered. Keeping in line with the World Health Organization Statement on Clinical Trials, the Declaration of Helsinki and the Good Clinical Practice guidelines, we direct the Union of India to ensure that key findings and results of the clinical trials of Corbevax be published at the earliest, if not already done. Neither vaccine is a messenger RNA vaccine and to this extent, the apprehensions of the Petitioner with respect to the associated risks of messenger RNA vaccines are unfounded in the present situation., In conclusion, we have summarised our findings on the various issues considered by us, below: (i) Given the issues urged by the Petitioner have a bearing on public health and concern the fundamental rights of individuals in this country, we are not inclined to entertain any challenge to the maintainability of the writ petition. (ii) As far as judicial review of policy decisions based on expert opinion is concerned, there is no doubt that wide latitude is provided to the executive in such matters and the Supreme Court of India does not have the expertise to appreciate and decide on merits of scientific issues on the basis of divergent medical opinion. However, this does not bar the Court from scrutinising whether the policy in question can be held to be beyond the pale of unreasonableness and manifest arbitrariness and to be in furtherance of the right to life of all persons, bearing in mind the material on record. (iii) With respect to the infringement of bodily integrity and personal autonomy of an individual considered in the light of vaccines and other public health measures introduced to deal with the COVID‑19 pandemic, we are of the opinion that bodily integrity is protected under Article 21 of the Constitution and no individual can be forced to be vaccinated. Further, personal autonomy of an individual, which is a recognised facet of the protections guaranteed under Article 21, encompasses the right to refuse to undergo any medical treatment in the sphere of individual health. However, in the interest of protection of communitarian health, the Government is entitled to regulate issues of public health concern by imposing certain limitations on individual rights, which are open to scrutiny by constitutional courts to assess whether such invasion into an individual’s right to personal autonomy and right to access means of livelihood meets the three‑fold requirement as laid down in K.S. Puttaswamy (supra), i.e., (i) legality, which presupposes the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them. (iv) On the basis of substantial material filed before this Court reflecting the near‑unanimous views of experts on the benefits of vaccination in addressing severe disease from the infection, reduction in oxygen requirement, hospital and ICU admissions, mortality and stopping new variants from emerging, this Court is satisfied that the current vaccination policy of the Union of India is informed by relevant considerations and cannot be said to be unreasonable or manifestly arbitrary. Contrasting scientific opinion coming forth from certain quarters to the effect that natural immunity offers better protection against COVID‑19 is not pertinent for determination of the issue before us. (v) However, no data has been placed by the Union of India or the States appearing before us, controverting the material placed by the Petitioner in the form of emerging scientific opinion which appears to indicate that the risk of transmission of the virus from unvaccinated individuals is almost on par with that from vaccinated persons. In light of this, restrictions on unvaccinated individuals imposed through various vaccine mandates by State Governments or Union Territories cannot be said to be proportionate. Till the infection rate remains low and any new development or research finding emerges which provides due justification to impose reasonable and proportionate restrictions on the rights of unvaccinated individuals, we suggest that all authorities in this country, including private organisations and educational institutions, review the relevant orders and instructions imposing restrictions on unvaccinated individuals in terms of access to public places, services and resources, if not already recalled. It is clarified that in the context of the rapidly‑evolving situation presented by the COVID‑19 pandemic, our suggestion to review the vaccine mandates imposed by States or Union Territories is limited to the present situation alone and is not to be construed as interfering with the lawful exercise of power by the executive to take suitable measures for prevention of infection and transmission of the virus. Our suggestion also does not extend to any other directions requiring maintenance of COVID‑appropriate behaviour issued by the Union or the State Governments. (vi) As regards non‑disclosure of segregated clinical data, we find that the results of Phase III clinical trials of the vaccines in question have been published, in line with the requirement under the statutory regime in place, the Good Clinical Practice guidelines and the World Health Organization Statement on Clinical Trials. The material provided by the Union of India, comprising minutes of the meetings of the SEC, do not warrant the conclusion that restricted emergency use approvals had been granted to COVISHIELD and COVAXIN in haste, without thorough review of the relevant data. Relevant information relating to the meetings of the SEC and the National Technical Advisory Group on Immunization are available in the public domain and therefore, challenge to the procedures adopted by the expert bodies while granting regulatory approval to the vaccines on the ground of lack of transparency cannot be entertained. However, we reiterate that subject to the protection of privacy of individual subjects, with respect to ongoing clinical trials and trials that may be conducted subsequently for COVID‑19 vaccines, all relevant data required to be published under the extant statutory regime must be made available to the public without undue delay. (vii) We do not accept the sweeping challenge to the monitoring system of Adverse Event Following Immunisation being faulty and not reflecting accurate figures of those with severe reactions or deaths from vaccines. We note that the role of the Pharmacovigilance Programme of India and the CDSCO, as elaborated upon by the Union of India, collates and studies previously unknown reactions seen during monitoring of Adverse Event Following Immunisation at the time of vaccine administration and we trust the Union of India to ensure that this leg of the Adverse Event Following Immunisation surveillance system is not compromised while meeting the requirements of the rapid review and assessment system followed at the national level. (viii) We are also of the opinion that information relating to adverse effects following immunisation is crucial for creating awareness around vaccines and their efficacy, apart from being instrumental in further scientific studies around the pandemic. Recognising the imperative need for collection of requisite data of adverse events and wider participation in terms of reporting, the Union of India is directed to facilitate reporting of suspected adverse events by individuals and private doctors on an accessible virtual platform. These reports shall be made publicly accessible, without compromising on protecting the confidentiality of the persons reporting, with all necessary steps to create awareness of the existence of such a platform and of the information required to navigate the platform to be undertaken by the Union of India at the earliest. (ix) On paediatric vaccination, we recognise that the decision taken by the Union of India to vaccinate children in this country is in tune with global scientific consensus and expert bodies like the World Health Organization, the United Nations International Children's Emergency Fund and the Centers for Disease Control and Prevention and it is beyond the scope of review for this Court to second‑guess expert opinion, on the basis of which the Government has drawn up its policy. Keeping in line with the World Health Organization Statement on Clinical Trials and the extant statutory regime, we direct the Union of India to ensure that key findings and results of the relevant phases of clinical trials of vaccines already approved by the regulatory authorities for administration to children, be made public at the earliest, if not already done., We express our gratitude to the learned counsel on either side for their able assistance in enabling this Court to reach the above conclusion.
id_1225	0	% Reserved on: 22.01.2024 Pronounced on: 24.01.2024 Petitioner Through: Mr. Mahesh Chand, Advocate versus Through: Mr. Manoj Pant, Additional Sessions Judge for the State. Mr. Puneet Bajaj, Advocate for complainant., The bail application under Section 439 of the Code of Criminal Procedure, 1973 has been filed by the applicant seeking regular bail in FIR No. 220/2021, registered at Police Station Connaught Place, New Delhi for offences punishable under Sections 419, 420, 493, 494, 495, 376, 109, 201 and 120B of the Indian Penal Code., Brief facts: the case was registered on 02 December 2021 on the complaint of Ms. P. She alleged that she met the main accused Aarav alias Ravi Gautam through the online matrimonial site Jeevansathi.com. Ms. P married the accused Aarav alias Ravi Gautam on 18 July 2021 at Arya Samaj Mandir, Hanuman Road, Connaught Place, New Delhi. On 18 November 2021 she received a phone call from a woman named Nikita who told her that accused Aarav was her husband. Ms. P realised that Aarav was already married to another lady when he married her. The accused also took her gold jewellery and mortgaged it for a bank loan. On 19 November 2021 she lodged a complaint at Police Station Connaught Place, New Delhi and the FIR was registered., During investigation the Investigating Officer obtained profile details from the matrimonial website, showing mobile number 8920943365. The profile was created on 27 February 2019 with the name Aarav Chaudhary, email \aarav007aryan@gmail.com\, date of birth 21 April 1990 and marital status \Never Married\. The profile indicated that the parents had died and that interest was shown in about 1411 profiles of women of different age groups. The accused Aarav was arrested from House No. 222/3, Govindpuri, Delhi on 13 December 2021., Further investigation: on 15 December 2021 a certified copy of marriage certificate No. T-20368/2020 dated 14 August 2020 was obtained from Arya Samaj Marriage Mandal, Khirkee Village, Malviya Nagar, Delhi. It shows that accused Aarav had married another lady and again married the complainant by keeping her in the dark about his earlier marriage. On 30 December 2021 certified documents of marriage certificate No. 11835 and other documents related to the marriage of Ms. P and Aarav dated 18 July 2021 were obtained from the In‑charge, Arya Samaj Mandir, 15 Hanuman Road, Connaught Place, Delhi., On 01 December 2022 the statement of Ms. P was recorded under Section 164 of the Code of Criminal Procedure, corroborating her earlier statement recorded under Section 161. She revealed that accused Aarav had applied for several loans in her name and PAN card and had transferred funds to different bank accounts. She also alleged that the present accused Mohit had accompanied main accused Aarav on 11 December 2020 when the date of marriage was fixed., The present accused Mohit was arrested on 07 February 2022., Learned counsel for the accused Mohit argues that the applicant has been falsely implicated, that the only allegation against him is that he visited the complainant’s house, met her parents and affirmed that the main accused Aarav alias Ravi Gautam had lost his parents. He claims he was not aware that Aarav was already married and had a child and that he merely attended the Roka ceremony and received some money in his name on 14 August 2020 during the subsistence of this account at the request of Aarav., Learned Additional Sessions Judge for the State submits that accused Aarav alias Ravi Gautam befriended the complainant through Jeevansathi.com and showed interest in 1411 women on the website. It is argued that the present applicant Mohit accompanied the main accused to the complainant’s house at the time of the Roka ceremony, introduced himself as a friend, met the parents and affirmed that the main accused had lost his parents. It is also stated that Mohit already knew that Aarav was already married and had a child and that Mohit received a sum of Rs. 50,000 from the complainant on a false pretext made by the main accused. Investigation shows that accused Ravi Gautam befriended 1411 women through Jeevansathi.com and may have more. The accused persons, including the applicant, have cheated vulnerable women around the age of 40 seeking marriage. It is also stated that Mohit is the Physical Training Instructor of the main accused and used to teach him in school. Therefore, the allegations against both accused persons are of conspiracy and his bail application should be rejected., Delhi High Court has heard arguments addressed by learned counsel for the applicant as well as learned Additional Sessions Judge for the State and counsel for the complainant, and has perused the material on record., After reviewing the record, Delhi High Court is of the opinion that contrary to the applicant’s assertion, the role of the present applicant Mohit is mentioned in the statement recorded under Section 164 of the Code of Criminal Procedure. The FIR also mentions that only one person attended the marriage from the side of the main accused, which was the present accused Mohit. A perusal of further statements recorded under Section 161, including the statement of the complainant’s father, as well as the statement recorded under Section 164, reveals specific allegations that Mohit accompanied the main accused to the complainant’s house, introduced himself as a friend and told them that the parents of the main accused had passed away. It is also specifically mentioned that an amount of Rs. 50,000 was transferred into the bank account of the present accused on false pretext made by the main accused, which has been proved during investigation, pointing to conspiracy between the main accused and Mohit., It is also apparent from the record that the present accused Mohit attended the Roka ceremony of the complainant and the main accused Aarav., Further, it is clear from the record and investigation that Mohit was in touch with the first wife of the main accused; call details show he was aware that the accused was previously married and had a child from his first wife., Therefore, prima facie it emerged that the accused convinced the complainant and her parents for the marriage by misleading them that the main accused was unmarried and his parents had passed away. On that assurance they proceeded with the marriage. Submissions before Delhi High Court by the Investigating Officer reveal that Mohit, a teacher of the main accused, by hatching a criminal conspiracy, cheated the complainant and her family of about Rs. 50,000. Investigation shows that the main accused Aarav has shown interest in 1411 profiles of women of different age groups on Jeevansathi.com and it remains under investigation how many other women he has cheated, married or engaged for the purpose of cheating money., Regarding the argument that the brother of the complainant is a judicial officer and therefore the FIR was registered and bail should not be granted, Delhi High Court takes strong objection to these submissions. The accused counsel filed annexure E revealing the name, designation and present posting of the judicial officer and details of the complainant, which is a violation of Section 228A of the Indian Penal Code., The annexure is a letter titled Public Interest Litigation addressed to the Honorable Chief Justice of India. Counsel for the accused should have been aware that the name of the complainant cannot be revealed in any record and that disclosure of name and designation as well as present posting of the brother is sufficient to disclose her identity, contravening Section 228A of the Indian Penal Code., Delhi High Court notes that in an earlier bail order dated 12 October 2023, the learned Trial Court warned counsel for disclosing the name of the complainant and her brother, and wrote to the Bar Council of Delhi to take action and consider guidelines. The Trial Court observed that the bail application disclosed the name and father’s name of the prosecutrix and the name, designation and posting of her brother, which could have been presented without revealing identities., Delhi High Court is astonished that despite such order, counsel for the accused filed the same annexure before this Court, revealing the name of the complainant and her brother, his designation and posting, and mentioned in the petition without names, with the ulterior motive to embarrass the judicial officer and tarnish the complainant’s image., Delhi High Court opines that even if the complainant is the sister of a judicial officer, she does not have lesser rights compared to other complainants to seek justice. Denying her justice because of her brother’s position would be a travesty of justice., Moreover, a judicial officer does not waive his fundamental rights available to all citizens, nor his social and private rights to protect his family. He also has a right as the biological sibling of the complainant to stand by her and take action against any person who harms his family. In the present case, there is no evidence that the judicial officer is personally intervening in the proceedings., The contention that due to the brother being a judicial officer the accused is not getting justice lacks evidence and is rejected. The bail order passed by the Trial Court is well reasoned and cannot be faulted. The earlier order of rejection of bail was passed by this Court in Bail Application 1482/2022., The complainant has been cheated and the present accused, despite being a Physical Training Instructor and teacher of the main accused, conspired with him to cheat the complainant and her family. To claim that bail is denied only because the brother is a judicial officer, without any evidence, is preposterous. Accepting such argument would imply that a judicial officer, even as a victim, does not have the fundamental right to obtain justice., The allegations at this stage reveal serious and grave accusations against the present accused and the co‑accused. The co‑accused has targeted innocent women and the present accused has been his close associate in misleading the complainant’s family and extracting a large sum of money into his own bank account, for which evidence is on record. Such accused persons need to be dealt with a stern hand so that if granted bail they will not indulge in similar activities., Delhi High Court notes that arranged marriages in India are still a family‑driven decision and families rely heavily on assurances given by friends and relatives of the prospective groom. Although counsel for the applicant argued that the applicant had disclosed the character of the main accused to the brother, the record shows this argument is contrary to the applicant’s previous statements. It is also observed that it is highly unlikely the complainant’s family will proceed with the marriage despite knowing the co‑accused’s marital status and antecedents., The Trial Court also observed in its order dated 12 October 2023 that at the time of arguments on charge, counsel for the accused argued that the present accused was not aware of the marital status of the co‑accused and had bona‑fide attended the Roka ceremony. The father of the complainant has stated in his statement under Section 161 of the Code of Criminal Procedure that the applicant was the only member from the side of the co‑accused in the Roka ceremony and that he informed the complainant’s parents before the ceremony that the accused was unmarried., The charges against the present accused have already been framed and the complainant is yet to be examined before the Trial Court. The allegations are very grave and serious. The apprehension of threatening and influencing material witnesses cannot be completely ruled out at this stage., Additionally, Delhi High Court, while dealing with this case and the arguments raised by counsel for the present applicant, notes with dismay that there have been persistent attempts by the accused and his counsel to disclose the identity of the brother and the complainant, which is contrary to Section 228A of the Indian Penal Code., The counsel for the accused and the accused were well aware of the Trial Court order dated 12 October 2023, yet they persisted in filing annexure E mentioning the name of the brother and the complainant. Even mentioning the brother’s name would necessarily lead to disclosure of the complainant’s identity., Similarly, an accused cannot be denied justice because a judicial officer or his family member is a complainant, and the judicial officer and his family cannot be denied justice as victims, as that would deny their fundamental, private and social rights available to other citizens., It will be a travesty to allow the accused to scandalise a judicial officer and shake the confidence of the litigating community by repeatedly disclosing his identity., Delhi High Court notes practice directions issued by this Court on 04 October 2023, issued in compliance with directions in Bail Application No. 3635/2022 titled Saleem v. State of NCT of Delhi and Anr., to ensure that the identity of victims of sexual assault is not disclosed in petitions., Further, the Registry is directed to ensure that in any petition or application involving sexual offences, a certificate or note is annexed with the first page certifying that the name of the complainant or any other name has not been mentioned or divulged in the body of the petition or any annexures, to prevent disclosure of the victim’s identity., As noted in many previous judgments, guidelines are born out of situational necessities for better administration of justice; this judgment adds one more guideline., With regard to the present case, the Registry is directed to immediately mask the name of the victim and the judicial officer in annexure E and particulars about the judicial officer mentioned in paragraph 6 of the grounds of the present bail application., Accordingly, the present bail application stands dismissed., It is clarified that nothing expressed herein shall amount to an expression of opinion on the merits of the case., A copy of this judgment shall be forwarded to the learned Registrar General of this Court for necessary action and compliance.
id_1226	0	Through: Mr. Pawan Kumar, Advocate, versus Through: Mr. Manoj Pant, Assistant Public Prosecutor for the State with SI Saurabh, Police Station Malviya Nagar, Mr. K.K. Manan and Mr. Mohit Mathur, Senior Advocates with Ms. Uditi Bali and Mr. Anil Basoya, Advocates for the complainant. The instant application under Section 438 of the Code of Criminal Procedure, 1973 has been filed on behalf of the accused applicant seeking anticipatory bail in FIR bearing number 138/2023, registered at Police Station Malviya Nagar, Delhi, for offences punishable under Sections 308, 323, 341 and 34 of the Indian Penal Code, 1860., The FIR discloses that on 08 March 2023, at about 8.00 p.m., a verbal altercation took place between the complainant, injured Fahad Khan, and his cousin Mohd Sadiq Khan, and the accused applicant Sawan and co‑accused Salman, over the weight of chicken purchased by the complainant. The accused persons threatened the complainant and his cousin. The prosecution story is that the applicant threatened not even to return the money to the complainant, and the complainant left without buying chicken. Thereafter, the complainant informed his brother Faraz and friend Rizwan, and Rizwan said he would pacify the applicant since he knew him. When Faraz and Rizwan went to sort out the issue, about three or four persons started beating Faraz. When the complainant rushed to save his brother, co‑accused Salman picked up an iron rod from his shop and the applicant caught hold of the complainant while the co‑accused hit him with the iron rod. The complainant fainted at the spot due to the injury and was taken to the All India Institute of Medical Sciences Trauma Centre where he was treated. On his statement, the FIR was registered under Sections 323, 341 and 34 of the Indian Penal Code on 09 March 2023. During the investigation, discharge summary, X‑rays and Medical Legal Certificates were obtained, pursuant to which Section 308 of the Indian Penal Code was added to the FIR on 17 March 2023., Learned counsel for the accused applicant states that the applicant, aged around twenty‑seven years, runs a chicken shop with his friend and has no criminal antecedents. It is stated that the complainant, a practising advocate, is well aware of the nuances of writing a complaint and therefore the police lodged the complaint on a concocted story to falsely implicate the applicant. It is argued that the complainant wanted to pressurise the applicant to sell chicken at a lower price than the market rate and used filthy language against the applicant; consequently the applicant gave him chicken at Rs 200 per kilogram instead of the market rate of Rs 220 per kilogram only to avoid an altercation. However, thereafter the complainant returned to the shop with twenty to twenty‑five boys, slapped the applicant, pulled his hair, and only in defence the applicant and his brother pushed the complainant, who sustained injuries as he fell on the sharp side of a marble slab. It is further stated that the complainant also took away Rs 15,000 from the applicant’s shop, for which a complaint was lodged with the Station House Officer, but no action was taken. Section 308 of the Indian Penal Code was added to the FIR on 17 March 2023, though the FIR was initially lodged on 08 March 2023 for offences punishable under Sections 323, 341 and 34 only. Interim relief was granted to the applicant, but it was withdrawn on 27 March 2023 and the anticipatory bail application was dismissed by the Delhi District Court. The applicant therefore seeks pre‑arrest bail., Per contra, the Assistant Public Prosecutor for the State argues that the allegations against the applicant are serious in nature and his custodial interrogation is necessary to apprehend other accused persons and to recover the weapon of offence., Learned senior counsel for the complainant states that the complainant was hit with an iron rod on his head, a vital part of his body, and gave his statement only after being declared fit to do so, subsequent to which Section 308 of the Indian Penal Code was added to the FIR on the basis of the injury sustained. Therefore, considering the gravity of the offence, the bail application should be rejected., Having heard arguments on behalf of both sides and examined the material on record, the Court notes that a scuffle broke out between several persons, including the applicant and the complainant, and while the applicant caught hold of the complainant, co‑accused Salman hit him on the head with an iron rod. The contention that Section 308 was added later and was not part of the FIR initially is without merit, as the complainant’s statement was recorded after he was discharged from the hospital and deemed fit to give a statement. Section 308 was added after reviewing the Medical Legal Certificate and considering that the injury was on a vital part of the complainant’s body. The Delhi District Court, before rejecting the bail application, had sought an explanation from the Station House Officer on how Section 308 was added subsequently, and the explanation was placed on record. The argument that the complainant, being a lawyer, twisted the facts does not find favour with this Court, as a person’s profession cannot be held against him. The injury, a laceration measuring approximately 2 × 1 × 0.5 cm on the left frontal forehead, required six stitches above the left eye. The iron rod used in the commission of the offence has not yet been recovered, and the investigation is at an initial stage. Given the injury to a vital part of the body and the seriousness of the offence, no ground for granting anticipatory bail is made out in favour of the applicant. Accordingly, the application is dismissed., The order shall be uploaded on the website forthwith.
id_1227	0	Through: Mr. KS Choudhary, Advocate versus Through: Mr. Ajay Vikram Singh, Appellant Mr. Shilankar Shakya, Advocate for R -2-4 Sub-Inspector Satyapreet, Police Station Jaitpur., This is a petition filed seeking quashing of the FIR No. 416/2017 dated 12.08.2017 registered at Police Station Jaitpur under Sections 323, 506, 509, 354, 354B, 34 of the Indian Penal Code., As per the FIR, the complaint was predicated on a fight over petting pigs. The altercation ensued between the parties which resulted in the present FIR., The nature of injuries suffered by the complainant are opined to be simple in nature., During the pendency of the proceedings, the parties have arrived at a settlement dated 12.11.2022, pursuant to which the complainant has settled the dispute with the petitioners and the respondents have decided to put a quietus to the disputes and to assist in quashing the present FIR and do not wish to pursue the matter any further., The petitioners are present in the High Court and have been identified by Mr. KS Choudhary, learned counsel., The respondents are also present in the High Court and have been identified by Sub-Inspector Satyapreet, Police Station Jaitpur., The parties state that they have arrived at the above‑said settlement out of their own free will and without any undue influence, threat, pressure or coercion., The respondents state that they have no objection if the present FIR is quashed., However, in the present case, the FIR is of the year 2017. Not only the police have investigated the entire matter but also have filed the charge sheet. Considerable time of the police has also been wasted on issues which should not have escalated to this extent. In addition, valuable judicial time has also been wasted. Even though the parties have settled their disputes and quashing will put a quietus to the matter, the petitioners must do some social good., Since the petitioners belong to a humble background, I am refraining from imposing any financial costs on the petitioners., However, each of the petitioners shall plant ten trees in their locality and will look after them with proper care for a further period of ten years. The trees shall be planted near their residence in consultation with the Investigating Officer concerned, who shall inform about the place for planting in consultation with the concerned Horticulture Department., The needful shall be done within a period of four weeks from today., The yearly status report of the plantation will be filed by the petitioners with photographs. The first status report shall be filed by the Investigating Officer concerned within six weeks from today., Subject to the directions made hereinabove, the FIR No. 416/2017 dated 12.08.2017 registered at Police Station Jaitpur under Sections 323, 506, 509, 354, 354B, 34 of the Indian Penal Code and all consequential proceedings are hereby quashed., List for compliance on 15.05.2023.
id_1229	0	Date of decision: 22nd January, 2024. W.P.(C) 13213/2022 & CM Applications 39980/2022, 43537/2022. Through: Mr. Kapil Sibal, Senior Advocate and Mr. Arunabh Chowdhury, Senior Advocate with Mr. Krishnaraj Thaker, Ms. Pragya Baghel, Mr. Vaibhav Tomar and Ms. Aparajita Jamwal, Advocates. Versus Through: Mr. Tushar Mehta, Solicitor General of India with Mr. Apoorv Kurup, Chief General Secretary, Congress, Mr. Akhil Hasija, Ms. Gauri, Mr. Shivash Dwivedi and Ms. Kirti Dadeech, Mr. Ojaswa Pathak and Ms. Apoorv Jha, Mr. Atmaram N.S. Nadkarni, Senior Advocate with Mr. Rishi K. Awasthi, Mr. Piyush Vatsa and Mr. Shubham Saxena, Advocates for Respondent‑2., The Petitioner has approached the Supreme Court of India for quashing the complaint bearing Complaint No. C‑38/2020‑Lokpal pending before Respondent No.1/Lokpal of India. The Petitioner has also prayed for quashing Orders dated 05.08.2020, 15.09.2020 and 04.08.2022 passed by Respondent No.1 in the said complaint., The Petitioner herein is a sitting Member of Parliament in the Rajya Sabha nominated from the State of Jharkhand. The Petitioner is also the President of the Jharkhand Mukti Morcha, a state political party in Jharkhand. The complainant (Respondent No.2 herein) is also a Member of Parliament in the Lok Sabha from Godda, Jharkhand., Respondent No.2 filed a complaint which was registered as Complaint No. C‑38/2020‑Lokpal with Respondent No.1. It is alleged in the complaint that the Petitioner, in his name and in the name of his family members including sons, daughters, daughters‑in‑law, friends, associates and various companies, has acquired several immovable properties including plots of land (residential, commercial and built‑up properties) in various districts of Jharkhand such as Ranchi, Dhanbad, Dumka etc., It is also alleged that the Petitioner and his family members, including his son, have invested in various companies owned by one Amit Agarwal and his family members. Amit Agarwal is stated to be a very close friend of the Petitioner's family. The complaint states that all the companies owned by Amit Agarwal, despite having shown consistent losses in their books of accounts, have been purchasing large properties in and around Ranchi and Kolkata., The Petitioner is alleged to have acquired properties completely disproportionate to his known sources of income. The complaint further alleges that the Petitioner has been indulging in corrupt practices for many years and has illegally usurped huge portions of the lands belonging to poor tribals of the Santhal tribe at throwaway prices much below the prevailing circle rates. It is alleged that these properties were purchased by the Petitioner abusing his official position and obtaining undue advantage from third parties. The complaint also alleges that the Petitioner and his family members falsely declared themselves as residents of various districts of Jharkhand and violated the provisions of the Chotanagpur Tenancy Act, 1908 while acquiring properties situated in those districts. The complaint states that the family members bought lands admeasuring 30 khatas situated at Harmu, Ranchi, worth about Rs.3 crores as per two sale deeds dated 06.02.2009 and 04.03.2009. A list of properties allegedly acquired illegally by the Petitioner and his relatives is attached. The complaint also makes allegations that the Petitioner and his family members have violated various provisions of the Prevention of Corruption Act and the Benami Properties Act insofar as properties have been bought in the name of the companies of Amit Agarwal and his family members., It is stated that Amit Agarwal constructed a 22‑storey building in Salt Lake, Kolkata in which the Petitioner and his family members have invested huge amounts of money. Various shell companies have been incorporated for giving donations to the Jharkhand Mukti Morcha, of which the Petitioner is President., The complaint was filed in the format prescribed under the Lokpal and Lokayuktas Act, 2013 read with Lokpal (Complaint) Rules, 2020. On receipt of the complaint, on 15.09.2020, Respondent No.1 passed an order in terms of Section 20(1)(a) of the Lokpal and Lokayuktas Act, 2013 directing the Central Bureau of Investigation to conduct a preliminary inquiry against the Petitioner to ascertain whether there exists a prima facie case for proceeding in the matter., By order dated 21.01.2021, a period of 30 days was granted by Respondent No.1 to the CBI to file a preliminary report. The time was further extended by order dated 31.05.2021., On 01.07.2021, comments were sought from the Petitioner as required under Section 20(2) of the Act on the nature of acquisition, cost of construction and source of funds for the 82 properties annexed to the notice, to be filed on or before 15.07.2021. The Petitioner replied on 10.07.2021 stating that he was not the owner of the said properties and sought an additional 60 days to submit his comments. The Petitioner, by letters dated 17.08.2021 and 08.09.2021, requested a copy of the complaint to be served on him. Meanwhile, letters dated 14.10.2021, 17.11.2021 and 06.12.2021 were also sent to the Petitioner by the CBI, calling upon him to submit his comments on the alleged assets as sought by the letter dated 01.07.2021., A copy of the complaint was finally served upon the Petitioner on 17.02.2022. Respondent No.1, by letter dated 15.03.2022, also granted a final opportunity to the Petitioner to submit his comments on or before 01.04.2022. The Petitioner, on 01.04.2022, addressed a letter to Respondent No.1 submitting a detailed response regarding the properties alleged to have been owned by him and raising certain preliminary objections to Lokpal's jurisdiction to inquire into the matter., After concluding its preliminary investigation, the CBI submitted its report on 29.06.2022., The Petitioner has filed the instant writ petition challenging the complaint and various orders passed therein, primarily contending that the complaint itself ought not to have been entertained by Respondent No.1 since it is barred by Section 53 of the Lokpal and Lokayuktas Act, 2013. He also contends that the time limit mentioned in the Act has not been complied with in the enquiry process., It is further stated in the writ petition that the report dated 01.07.2021 was not a final report. Replies were sought from the Petitioner and a final report was given only on 29.06.2022, which is way beyond the time limit prescribed under Section 20(4) of the Act and cannot be taken into account at all., Notice in the writ petition was issued by the Supreme Court of India on 12.09.2022. Replies have been filed., The primary contention raised by the learned Senior Counsel for the Petitioner is that the impugned complaint is ex‑facie barred by limitation and Respondent No.1 could not have proceeded at all in the complaint. It is contended that since the complaint was made more than seven years after the alleged acquisition of properties mentioned in the annexure, the Lokpal under Section 53 of the Act is barred from initiating any investigation or inquiry. It is further contended that Part‑A of the complaint requires a certification from the complainant that the alleged offence is made within seven years, as laid down under Section 53 of the Lokpal and Lokayuktas Act, 2013. The certificate is therefore wrong and the complaint should be dismissed, with proceedings initiated against the complainant under Sections 46 and 47 of the Act for making a false, frivolous and vexatious complaint, which may attract imprisonment of up to one year and a fine of Rs.1 lakh. It is further contended that Lokpal was obligated to examine whether the impugned complaint was admissible and not barred under Section 53 before taking cognizance under Section 20(1) and directing a preliminary enquiry, which was not done., It is also submitted that the Petitioner had no knowledge nor any notice was provided to him of the order dated 15.09.2020 wherein the CBI was directed to commence the preliminary inquiry under Section 20(1) of the Act., It is further argued that the hearing under Section 20(3) of the Act, which took place by order dated 04.08.2022, is a step towards ascertainment of a prima facie case. This is also without jurisdiction if the bar of limitation is made clear at the stage of consideration of the preliminary report itself. It is contended that the language of Section 53 is mandatory in nature as the statute is couched in prohibitive language, where the provisions are unequivocal and unqualified. Reliance is placed on Lachmi Narain v. Union of India (1976) 2 SCC 95 and Fairgrowth Investments Limited v. Custodian (2004) 11 SCC 472., It is also submitted that Respondent No.1 failed to consider the contention on a bar by limitation which was earlier raised by the Petitioner by his response dated 01.04.2022. From the list of alleged properties, only one property is owned personally by the Petitioner and that was acquired prior to the period of seven years before filing of the complaint. Moreover, the two properties acquired within the said period, as per the preliminary report submitted by the CBI, were acquired by the political party Jharkhand Mukti Morcha and cannot be personally attributable to the Petitioner., It is further contended that the maximum statutory limit of 180 days for the completion of a preliminary inquiry as prescribed under Section 20(4) expired on 01.02.2021; therefore, the grant of a further extension of one month by order dated 31.05.2021 is illegal, void and ought not to be considered by Respondent No.1. The Act does not provide jurisdiction to Respondent No.1 to grant any further extension beyond 180 days, and such a grant goes beyond the powers conferred under statutory authority. No action could be taken on the basis of a report given after the time prescribed under the Act., In any event, the petitioner contends that the issues raised in the complaint have already been considered by the Apex Court in the public interest litigations State of Jharkhand v. Shiv Shankar Sharma (SLP No. 10622/2022) and Hemani Soren v. Shiv Shankar Sharma (SLP Nos. 11364/11365/2022). The SLPs were filed against orders passed by the Jharkhand High Court in W.P. No. (PIL) 4290 of 2021 and W.P. No. (PIL) 727 of 2022, which entertained PILs alleging that the then Chief Minister of Jharkhand, Mr. Shibu Soren, had amassed huge wealth by corrupt means and by abusing the office of the Chief Minister and investing money in about 32 companies. The Supreme Court, by its judgments, allowed the appeal and set aside the Jharkhand High Court order dated 03.06.2022. Therefore, the issue stands fully covered by the Apex Court's judgment and ought to be considered in the present case., Per contra, the learned Solicitor General of India appearing for the respondents submitted that the objective of enacting the Lokpal and Lokayuktas Act was to provide a framework for establishment of bodies at the national and state level to inquire into allegations of corruption against certain public functionaries and that its purpose must be read and applied in conjunction with the Prevention of Corruption Act, 1988., It is contended that on receipt of a complaint bearing Complaint No. C‑38/2020 dated 05.08.2020, which alleged amassing huge wealth, properties and assets by unscrupulous means, abuse of position as a public servant, development of properties such as Sohari Bhavan and Eden Girls Hostel and huge investments in various companies, a Full Bench of the Lokpal, after careful scrutiny, decided to proceed by directing the CBI to carry out a preliminary inquiry under Section 20(1) to ascertain the existence of a prima facie case. It is therefore submitted that at this stage there need not be any further obligation towards determination of the merits of the complaint and that such complaints need not be rejected at the threshold merely on the basis of certain alleged dates and events whose veracity is not adequately scrutinised at this stage., It is also contended that the relevance of the date on which the offence is alleged to have been committed cannot be seen at the stage of preliminary enquiry since there may be instances where the disproportionality of the property becomes apparent at a later date; possession of disproportionate properties is a continuing offence. Moreover, with reference to Section 13(1)(b) Explanation 1 of the Prevention of Corruption Act, 1988, the case of disproportionate assets can be extended to properties possessed by others on behalf of the public servant and need not be attributable solely to him. Therefore, the feasibility of applying Section 53 of the Act is not correct and doing so may defeat the purpose of the Act., It is further submitted that the complaint and the Petitioner's response, on examination of the final preliminary report submitted by the CBI to the Lokpal on 29.06.2022, required Respondent No.1 to provide a hearing to the petitioner as per Section 20(3) before a decision on the existence of a prima facie case. Even at this stage, the question of limitation remains open to adjudication and no final view has been formed. Hence, the Lokpal may consider applying Section 53 after hearing the public servant under Section 20(3); the writ petition is premature. It is also submitted that Section 20(1) does not envisage a hearing to the persons being proceeded against at this stage, and comments are sought under Section 20(2) only after directions are passed to commence a preliminary inquiry and a hearing may be granted under Section 20(3)., It is further contended that the time limits prescribed under Sections 20(2) and 20(4) for submitting a report and completing the preliminary investigation are not immutable and a strict application may be misused by public servants. In cases where consequences for non‑compliance are not statutorily provided, the statutory timelines should be read as directory. Reliance is placed on the Apex Court's decisions in Kailash v. Nankhu (2005) 4 SCC 480 and Inspector General of Registration v. K. Baskaran (2020) 14 SCC 345., The CBI, on 01.07.2021, submitted a report to the Lokpal indicating that comments were sought from the Petitioner as required under Section 20(2). The Lokpal directed the CBI to obtain comments and documents of the Petitioner's family by order dated 29.07.2021. Due to non‑receipt of the comments and documents on time, the matter was placed before the Lokpal on 31.08.2021, where an extension of 30 days was granted. The Petitioner, by letter dated 10.07.2021, sought a period of 60 days to submit his comments and, by a subsequent letter dated 08.09.2021, requested a copy of the complaint on which the order directing the preliminary enquiry was passed on 15.09.2020. The Petitioner further requested a copy of the complaint and the order dated 15.09.2020, which was considered by a Full Bench of the Lokpal. An order dated 27.01.2022 directed that the complaint be provided to the Petitioner along with a direction to submit comments within four weeks, i.e., by 07.03.2022. The Petitioner sought a further extension till 01.04.2022 by letter dated 11.03.2022, which was granted. The Petitioner thereafter submitted his reply on 01.04.2022, which was received, and the Lokpal, by order dated 06.05.2022, directed that the comments be sent to the CBI for examination and furnishing of the inquiry report. In view of that order, the CBI submitted a final preliminary report dated 29.06.2022., It is therefore submitted that the process of enquiry in cases of such nature involves collection and verification of information and documents from multiple locations and authorities, coupled with the petitioner and family members seeking more time to submit their responses, which were granted in the interest of justice. The purpose of such an inquiry would be defeated if the preliminary enquiry process were held to be strictly limited to the periods stipulated in Sections 20(2) and 20(4) of the Act., Heard learned counsels for the parties and perused the material on record., The Apex Court in State of Madhya Pradesh v. Ram Singh (2000) 5 SCC 88 defined corruption in a civilised society as a disease like cancer, which if not detected in time, is sure to malign the polity of the country, leading to disastrous consequences. It is termed as a plague that is not only contagious but, if not controlled, spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as royal thievery. The socio‑political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti‑people but aimed and targeted against them. It affects the economy and destroys cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking the socio‑economic‑political system in an otherwise healthy, wealthy, effective and vibrant society., It has also been held by the Apex Court that efficiency in public service improves only when the public servant devotes sincere attention and performs duties diligently, truthfully, honestly and assiduously., The Lokpal and Lokayuktas Act, 2013 was enacted for the establishment of a body of Lokpal for the Union and Lokayukta for the States to inquire into allegations of corruption against public functionaries. The Statement of Objects and Reasons indicates that the Administrative Reforms Commission, in its 1966 report \Terms of Redressal of Citizens' Grievances\, recommended setting up an institution of Lokpal at the Centre. The introduction to the Act reveals that it is an anti‑corruption law in India, establishing the office of the Lokpal and Lokayukta to inquire into corruption against public functionaries and matters connecting them. The Act creates a mechanism for receiving and initiating complaints against public functionaries, including the Prime Minister and Ministers, and for prosecuting them in a time‑bound manner., Section 3 of the Lokpal and Lokayuktas Act, 2013 deals with the establishment of Lokpal. It provides that, from the commencement of the Act, a body called the \Lokpal\ shall be established. The Lokpal shall consist of a Chairperson, who is or has been a Chief Justice of India or a Judge of the Supreme Court or an eminent person meeting the eligibility specified, and such number of members, not exceeding eight, of whom fifty per cent shall be Judicial Members. Not less than fifty per cent of the members shall be from Scheduled Castes, Scheduled Tribes, Other Backward Classes, Minorities and women. A person shall be eligible to be appointed as a Judicial Member if he is or has been a Judge of the Supreme Court or a Chief Justice of a High Court; as a Member other than a Judicial Member if he is a person of impeccable integrity and outstanding ability with at least twenty‑five years of specialised knowledge and expertise in anti‑corruption policy, public administration, vigilance, finance including insurance and banking, law and management. The Chairperson or a Member shall not be a member of Parliament or a state legislature, a person convicted of any offence involving moral turpitude, a person below forty‑five years of age, a member of any Panchayat or Municipality, or a person removed or dismissed from Union or State service, and shall not hold any office of trust or profit or be affiliated with any political party or carry on any business or profession unless he resigns or severs such connections before assuming office., A perusal of the above section indicates that the Lokpal consists of a Chairperson who is or has been a Chief Justice of India or a Judge of the Supreme Court, and members who must be judicial members, i.e., sitting or retired judges of the Supreme Court or High Courts. The Chairperson must be a sitting or retired Chief Justice of India or a Judge of the Supreme Court, or a person of impeccable integrity with at least 25 years of experience in anti‑corruption policy, public administration, vigilance, finance, law and management., The Act also provides that the Chairperson or a Member of the Lokpal shall not be a Member of Parliament or a member of a state legislature, shall not be convicted of any offence involving moral turpitude, shall not be a person removed or dismissed from Union or State service, and shall not be affiliated with a political party or carry on any business or profession unless such affiliations are resigned., The above provisions show that the institution of Lokpal is insulated from outside pressure and is a completely independent body, acting uninfluenced by any kind of pressure. The Act was primarily brought in to instill confidence in the public regarding the integrity of persons holding high offices, including the Prime Minister. It provides checks and balances to ensure that persons holding high offices are not unnecessarily harassed by stale complaints. Chapter VII of the Act deals with the procedure for preliminary inquiry and investigation., Section 20 of the Act provides that the Lokpal, on receipt of a complaint, may order a preliminary inquiry against any public servant by its Inquiry Wing or any agency, including the Central Bureau of Investigation, to ascertain whether there exists a prima facie case. If a prima facie case exists, it may order an investigation. The Lokpal shall, if proceeding with a preliminary inquiry, refer complaints concerning public servants of Groups A, B, C or D to the Central Vigilance Commission, which shall submit its report to the Lokpal. Before ordering an investigation, the Lokpal shall call for an explanation from the public servant, without interfering with any search and seizure. During the preliminary inquiry, the Inquiry Wing or any agency shall conduct the inquiry, seek comments from the public servant and the competent authority, and submit a report within sixty days of receipt of the reference. A bench of not less than three Members shall consider every report, give the public servant an opportunity to be heard, and decide whether a prima facie case exists, proceeding with investigation, departmental proceedings, or closure of proceedings. Every preliminary inquiry shall ordinarily be completed within ninety days and, for reasons recorded in writing, within a further ninety days from the date of receipt of the complaint.
id_1229	1	In case the Lokpal decides to proceed to investigate into the complaint, it shall direct any agency (including the Delhi Special Police Establishment) to carry out the investigation as expeditiously as possible and complete the investigation within a period of six months from the date of its order: Provided that the Lokpal may extend the said period by a further period not exceeding six months at a time for the reasons to be recorded in writing., Notwithstanding anything contained in section 173 of the Code of Criminal Procedure, 1973, any agency (including the Delhi Special Police Establishment) shall, in respect of cases referred to it by the Lokpal, submit the investigation report under that section to the Supreme Court of India having jurisdiction and forward a copy thereof to the Lokpal., A bench consisting of not less than three Members of the Lokpal shall consider every report received by it under sub‑section (6) from any agency (including the Delhi Special Police Establishment) and after obtaining the comments of the competent authority and the public servant may grant sanction to its Prosecution Wing or investigating agency to file charge sheet or direct the closure of report before the Special Court against the public servant; direct the competent authority to initiate the departmental proceedings or any other appropriate action against the concerned public servant., The Lokpal may, after taking a decision under sub‑section (7) on the filing of the charge sheet, direct its Prosecution Wing or any investigating agency (including the Delhi Special Police Establishment) to initiate prosecution in the Special Court in respect of the cases investigated by the agency., The Lokpal may, during the preliminary inquiry or the investigation, as the case may be, pass appropriate orders for the safe custody of the documents relevant to the preliminary inquiry or, as the case may be, investigation as it deems fit., The website of the Lokpal shall, from time to time and in such manner as may be specified by regulations, display to the public the status of number of complaints pending before it or disposed of by it., The Lokpal may retain the original records and evidences which are likely to be required in the process of preliminary inquiry or investigation or conduct of a case by it or by the Special Court., Save as otherwise provided, the manner and procedure of conducting a preliminary inquiry or investigation (including such material and documents to be made available to the public servant) under this Act shall be such as may be specified by regulations., A perusal of Section 20 of the Act shows that the Lokpal on the receipt of the complaint does not immediately order for investigation by an agency including the Central Bureau of Investigation unless there exists a prima facie case. A perusal of Section 20 of the Act also indicates that instead of ordering the investigation, the Lokpal first orders for a preliminary inquiry to ascertain whether there exists a prima facie case or not., On receipt of the direction to conduct a preliminary inquiry, the agency appointed conducts preliminary inquiry on the basis of the material information and documents which it can collect. The agency also can seek comments on the allegations made against the public servant. The agency has to give a report within a period of 90 days and can seek further time of 90 days. Section 20(1)(a) and Section 20(3)(a) of the Act both mandate that before directing investigation to be done by any agency or the Delhi Special Police Establishment, the Lokpal has to call for explanation from the public servants so as to determine whether there exists a prima facie case for investigation. After hearing the public servant it is always open for the Lokpal to direct closure of the proceedings against the public servant and proceed against the complainant under Section 46(1) of the Act against the complainant for filing a false complaint. The facts of the present case reveal that a notice has been given to the Petitioner under Section 20(3) of the Act when the Petitioner chose to approach the Supreme Court of India by filing the instant writ petition. The contention of the Petitioner primarily is that the complaint on the face of it does not disclose any offence which can be prosecuted under the Act., A perusal of the complaint shows that the complaint lists 57 properties standing in the name of the Petitioner, his sons, his wife, his brothers‑in‑law and other family members in the complaint regarding purchase of the properties through one Amit Agarwal, who is also facing investigation under the Income Tax Act. The complaint also made allegations that properties have been purchased in the name of shell companies through Amit Agarwal., The last report filed by the Central Bureau of Investigation lists 82 properties, two of which are in the name of the Petitioner and others in the name of the Petitioner's other family members including his wife, sons and daughter‑in‑law. Barring the first two properties which are acquired in the name of the Party, all other properties have been purchased prior to seven years from the date of the complaint. However, there are two properties which have been purchased within the period prescribed under Section 53 of the Act which have been purchased in the name of the Party. It is alleged that the said properties were purchased through the Petitioner. Therefore, the complaint cannot be dismissed at the threshold itself., The preliminary report contains details of one Amit Agarwal who is the Director of M/s Rajesh Auto Merchandise Private Limited and Tamanna CommSales Private Limited having financial transactions with Jharkhand Mukti Morcha. The report also reveals that Amit Agarwal is facing investigation from the Income Tax Department. The report also reveals that the Central Bureau of Investigation is awaiting details regarding the accounts and investigations of Amit Agarwal., The short question which arises in this case is whether the Supreme Court of India, while exercising its discretion under Article 226 of the Constitution of India before the report is considered by the Lokpal, should dismiss the complaint on the ground that it is hit by Section 53 of the Act or not, or whether all the contentions raised before the Supreme Court of India should be advanced before the Lokpal in the inquiry to be held under Section 20(3) of the Act or not., The whole purpose of the Act is to ensure purity in public service. In the process of statutory construction, the court must construe the Act before it and the attempt should always be to further the approach of the Act and to make it workable. It is trite law that if the choice is between two interpretations, the narrower of which will fail to achieve the purpose of legislation then such construction or interpretation of the Act must be avoided as it will reduce the legislation to futility. The Statute is designed to be workable and the interpretation thereof of a Court should be to secure that object unless crucial omission or clear direction makes that end untenable. [Refer to: - Whitney v. Inland Revenue Commissioner, 1926 AC 44. In State of Gujarat v. Honble Mr. Justice R. A. Mehta (Retd) & Ors. (2013) 3 SCC 1, the Apex Court observed as under: \93. The adverse impact of lack of probity in public life leads to a high degree of corruption. Corruption often results from patronage of statutory/higher authorities and it erodes quality of life, and it has links with organised crimes, economic crimes like money laundering, etc., terrorism and serious threats to human security to flourish. Its impact is disastrous in the developing world as it hurts the poor disproportionately by diverting funds intended for development. Corruption generates injustice as it breeds inequality and become major obstacle to poverty alleviation and development. The United Nations Convention Against Corruption, 2003 envisages the seriousness and magnitude of the problem. December 9 has been designated as International Anti‑Corruption Day. India is a party to the said Convention with certain reservation. 95. Corruption in a society is required to be detected and eradicated at the earliest as it shakes the socioeconomic‑political system in an otherwise healthy, wealthy, effective and vibrating society. Liberty cannot last long unless the State is able to eradicate corruption from public life. Corruption is a bigger threat than external threat to the civil society as it corrodes the vitals of our polity and society. Corruption is instrumental in not proper implementation and enforcement of policies adopted by the Government. Thus, it is not merely a fringe issue but a subject‑matter of grave concern and requires to be decisively dealt with. 96. In the process of statutory construction, the court must construe the Act before it bearing in mind the legal maxim ut res magis valeat quam pereat which means it is better for a thing to have effect than for it to be made void i.e. a statute must be construed in such a manner so as to make it workable. Viscount Simon, L.C. in Nokes v. Doncaster Amalgamated Collieries Ltd. [1940 AC 1014 : (1940) 3 All ER 549 (HL)] stated as follows: (AC p. 1022) 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. 97. Similarly in Whitney v. IRC [1926 AC 37 (HL)] it was observed as under: (AC p. 52) A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. 98. 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 interest 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 must 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 so as to ensure that the Act itself 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 and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add 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 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) 1 SCC 424 : AIR 1987 SC 1023], Tinsukhia Electric Supply Co. Ltd. v. State of Assam [(1989) 3 SCC 709 : AIR 1990 SC 123], SCC p. 754, para 118, 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].)\, Similarly, the Apex Court in the Grid Corporation of Orissa Limited & Ors. v. Eastern Metals and Ferro Alloys & Ors., (2011) 11 SCC 334, has observed as under: \25. This takes us to the correct interpretation of Clause 9.1. The golden rule of interpretation is that the words of a statute have to be read and understood in their natural, ordinary and popular sense. Where however the words used are capable of bearing two or more constructions, it is necessary to adopt purposive construction, to identify the construction to be preferred, by posing the following questions: (i) What is the purpose for which the provision is made? (ii) What was the position before making the provision? (iii) Whether any of the constructions proposed would lead to an absurd result or would render any part of the provision redundant? (iv) Which of the interpretations will advance the object of the provision? The answers to these questions will enable the court to identify the purposive interpretation to be preferred while excluding others. Such an exercise involving ascertainment of the object of the provision and choosing the interpretation that will advance the object of the provision can be undertaken, only where the language of the provision is capable of more than one construction. (See Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 : (1995) 2 SCR 603] and Kanai Lal Sur v. Paramnidhi Sadhukhan [AIR 1957 SC 907 : 1958 SCR 360] and generally Justice G.P. Singh's Principles of Statutory Interpretation, 12th Edn., published by Lexis Nexis, pp. 124 to 131, dealing with the rule in Heydon case [(1584) 3 Co Rep 7a : 76 ER 637].)\, The Lokpal is yet to apply its mind on the material provided by the Central Bureau of Investigation as to whether an investigation is necessary or not. It is well settled that while conducting an inquiry, the material that can be unearthed is limited compared to the material that is unearthed when an investigation is conducted by a competent authority., It is well settled that the Supreme Court of India, while exercising its jurisdiction under Article 226 of the Constitution of India, does not interfere if the matter is pending adjudication before an authority unless it is a case of patent lack of jurisdiction or where the nature of inquiry is for allegations which are so absurd and inherently improbable on the basis of which no prudent person can reach a just conclusion or where the proceedings have been initiated are so manifestly attended with malice or the proceedings are initiated with the intention of wrecking vengeance on a person with a view to spite him due to any political or oblique motives., It is also well settled that the Supreme Court of India, while exercising jurisdiction under Article 226 of the Constitution of India, should not impinge on the mechanism provided under the Act unless as stated earlier when there is a patent lack of jurisdiction or that the complaint is vexatious which requires interference. The Supreme Court of India cannot substitute itself as an authority which has been vested with a duty under the Statute to consider as to whether there is material in it or not for ordering investigation. The writ petition, therefore, is premature in nature., The contention of learned Senior Counsel for the Petitioner that the entire complaint is completely motivated and Lokpal would invariably order for investigation cannot be accepted. As stated earlier, the Office of Lokpal is completely independent and an argument that the Lokpal would be influenced by political consideration cannot be countenanced. This allegation that the proceedings before the Lokpal is vitiated and can be politically motivated cannot be accepted., The Lokpal will examine the entire matter independently and shall take a decision as to whether an investigation has to be ordered or not which order is always amenable for challenge under Article 226 of the Constitution of India. The Central Bureau of Investigation has submitted a preliminary inquiry and the Lokpal has to take a decision as to whether to proceed further in the case or not., The argument of the Petitioner that Section 20(4) of the Act is mandatory and the enquiry report which has been submitted as per the Act cannot be accepted. The said Section does not contemplate any adverse consequence if the procedure is not adhered to. The Apex Court in Serious Fraud Investigation Office v. Rahul Modi & Anr., 2019 (5) SCC 266, while dealing with the time limit prescribed under Section 212 of the Companies Act which gives time limit for conducting an investigation within the time limit, has observed as under: \34. It is well settled that while laying down a particular procedure if no negative or adverse consequences are contemplated for non‑adherence to such procedure, the relevant provision is normally not taken to be mandatory and is considered to be purely directory. Furthermore, the provision has to be seen in the context in which it occurs in the statute. There are three basic features which are present in this matter: 1. Absolute transfer of investigation in terms of Section 212(2) of the 2013 Act in favour of SFIO and upon such transfer all documents and records are required to be transferred to SFIO by every other investigating agency. 2. For completion of investigation, sub‑section (12) of Section 212 does not contemplate any period. 3. Under sub‑section (11) of Section 212 there could be interim reports as and when directed. In the face of these three salient features it cannot be said that the prescription of period within which a report is to be submitted by SFIO under sub‑section (3) of Section 212 is for completion of period of investigation and on the expiry of that period the mandate in favour of SFIO must come to an end. If it was to come to an end, the legislation would have contemplated certain results including retransfer of investigation back to the original investigating agencies which were directed to transfer the entire record under sub‑section (2) of Section 212. In the absence of any clear stipulation, in our view, an interpretation that with the expiry of the period, the mandate in favour of SFIO must come to an end, will cause great violence to the scheme of legislation. If such interpretation is accepted, with the transfer of investigation in terms of sub‑section (2) of Section 212 the original investigating agencies would be denuded of the power to investigate and with the expiry of mandate SFIO would also be powerless which would lead to an incongruous situation that serious frauds would remain beyond investigation. That could never have been the idea. The only construction which is possible, therefore, is that the prescription of period within which a report has to be submitted to the Central Government under sub‑section (3) of Section 212 is purely directory. Even after the expiry of such stipulated period, the mandate in favour of SFIO and the assignment of investigation under sub‑section (1) would not come to an end. The only logical end as contemplated is after completion of investigation when a final report or investigation report is submitted in terms of sub‑section (12) of Section 212. It cannot, therefore, be said that in the instant case the mandate came to an end on 19‑9‑2018 and the arrest effected on 10‑12‑2018 under the orders passed by the Director, SFIO was in any way illegal or unauthorised by law. In any case, extension was granted in the present case by the Central Government on 14‑12‑2018. But that is completely beside the point since the original arrest itself was not in any way illegal. In our considered view, the High Court completely erred in proceeding on that premise and in passing the order under appeal.\, One of the questions which fell for consideration in these appeals and was ably argued at length by the learned Senior Counsel for both the parties was in relation to the scope, extent and the purpose of Section 212 of the Companies Act, 2013 (hereinafter referred to as the Act) and, in particular, whether the compliance of sub‑section (3) of Section 212 of the Act is mandatory or directory and, if so, why., As rightly reasoned out by my learned Brother Lalit, J., having regard to the scheme of the Act underlined in Chapter XIV (Sections 206 to 229 of the Act) dealing with the matters relating to inspection, inquiry and investigation of the companies in juxtaposition with Chapter XXIX which prescribes the punishment/penalties for commission of various offences specified under the Act, the compliance of sub‑section (3) of Section 212 of the Act is essentially directory., A perusal of Section 20 of the Act shows that the intention to provide a timeline to complete the report is to ensure that the public servant against whom the inquiry procedure is completed at the earliest, without subjecting the public servant to any harassment., The ratio of the judgment in Rahul Modi (supra) indicates that when a consequence of not adhering to the procedure is not provided, then such a provision should be treated as directory in nature and not mandatory. Had the Legislature intended so, then the consequence would have been provided and the same would be mandatory for the Lokpal to close the complaint if the preliminary inquiry report is not filed within 180 days. Rather Section 20(3) of the Act shows that on considering the report if the Lokpal is of the opinion that the matter requires investigation, it can order for investigation. The purpose of the Act is to unearth corruption. Though the purpose of Section 53 of the Act and the timeline is only to prevent unnecessary harassment of the public servant, that cannot override the basic purpose for which the Act was brought in which is to prevent corruption in high offices., Furthermore, the contention of the learned Counsel for the Petitioner that the matter stands fully covered via the Apex Court judgments in State of Jharkhand v. Shiv Shankar Sharma SLP No. 10622/2022 and Hemani Soren v. Shiv Shankar Sharma SLP No. 11364‑11365/2022 cannot be accepted. The Apex Court set aside the order dated 03.06.22 of the Jharkhand High Court in W.P. No. (PIL) 4290 of 2021 and W.P. No. (PIL) 727 of 2022 on the ground that cognizance of the matter ought not to have been taken and that it was not proper for the PIL to have been entertained by the Jharkhand High Court based on generalised submissions and allegations which fail to carve out a prima facie case. The issue was ruled on maintainability and the threshold for entertaining a PIL without going into the merits of the allegations. In the case at hand however, investigation forms a part of the Prevention of Money Laundering Act 2022 proceedings where the mandate of Section 20 of the Act provides for ascertainment of a prima facie case which is the process of being made out. Therefore, the Apex Court's observations on maintainability of PILs by the High Court of Jharkhand in the present matter will not have any bearing over questions dealing with investigations under Section 20(3) of the Act., The Supreme Court of India, therefore, does not want to enter into this realm at this juncture and it is for the Lokpal to take a decision as to whether there is sufficient material to proceed further for investigation or not in order to subserve the purpose for which the Act has been brought out., Resultantly, without making any observation on the merits of the case, the writ petition is disposed of along with pending application(s), if any.
id_123	0	Reportable Writ Petition (Civil) No 1224 of 2023 State of Punjab Petitioner Versus Principal Secretary to the Governor Respondents of Punjab and Another Dr Dhananjaya Y Chandrachud, Chief Justice of India, Table of Contents A. The Governor is a symbolic head and cannot withhold action on Bills passed B. Reconvening a sitting of the Vidhan Sabha which has not been prorogued is permissible in law and is within the exclusive domain of the Speaker Exclusive domain of the Speaker to regulate the procedure of the House The jurisdiction of the Supreme Court of India under Article 32 of the Constitution has been invoked by the State of Punjab. The Government of Punjab is aggrieved on the ground that the Governor did not assent to four Bills which were passed by the Vidhan Sabha nor have they been returned; and furnish a recommendation for the introduction of certain Money Bills in the Vidhan Sabha., I. Factual background On 22 February 2023, the Council of Ministers of the Government of Punjab forwarded a recommendation to the Governor of Punjab seeking the summoning of the Punjab Vidhan Sabha for its Budget Session commencing on 3 March 2023. The Governor's refusal to do so, on the ground that he was seeking legal advice, led to the institution of a petition before the Supreme Court of India on 25 February 2023. On 28 February 2023, the Supreme Court of India delivered its judgment in the State of Punjab v. Principal Secretary to the Governor of Punjab. The Court observed that there was no occasion to seek legal advice on whether or not the Budget Session of the Legislative Assembly should be convened. The Governor was plainly bound by the advice tendered to him by the Council of Ministers., While concluding its judgment, the Supreme Court of India had the following observations on the broader aspects of mature political governance in a democracy: Political differences in a democratic polity have to be worked upon and sorted out with a sense of sobriety and maturity. The dialogue between constitutional functionaries cannot degenerate into a race to the bottom. Unless these principles are borne in mind, the realization of constitutional values may be placed in jeopardy. Such a situation emerged before the Supreme Court of India, leading to the institution of a petition under Article 32 of the Constitution for a direction to the Governor to summon the Legislative Assembly. It is inconceivable that the Budget Session of the Legislative Assembly would not be convened. The Court hopes that mature constitutional statesmanship will ensure that such instances do not occur in the future and reiterates the expectation that constitutional functionaries must be cognizant of the public trust in the offices which they occupy. The public trust entrusted to them is intended to subserve the cause of citizens and to ensure that the affairs of the nation are conducted with a sense of equanimity so as to accomplish the objects of the Preamble to the Constitution., Following the decision of the Supreme Court of India, the Sixteenth Punjab Vidhan Sabha was summoned on 3 March 2023. The Speaker adjourned the session sine die on 22 March 2023. On 12 June 2023, acting in pursuance of the powers conferred by the second proviso to Rule 16 of the Rules of Procedure and Conduct of Business in the Punjab Vidhan Sabha, the Speaker reconvened the sitting of the session of the Vidhan Sabha on 19 and 20 June 2023. During the course of the session, the Vidhan Sabha passed four Bills, namely: (i) The Sikh Gurdwaras (Amendment) Bill 2023; (ii) Punjab Affiliated Colleges (Security of Service) (Amendment) Bill 2023; (iii) Punjab Universities Law (Amendment) Bill 2023; and (iv) Punjab Police (Amendment) Bill 2023. No action was taken by the Governor on these Bills., Thereafter, the session of the Vidhan Sabha was sought to be reconvened on 19 October 2023 since three Money Bills were to be introduced: (i) The Punjab Fiscal Responsibility and Budget Management (Amendment) Bill, 2023; (ii) The Punjab Goods and Services Tax (Amendment) Bill 2023; and (iii) The Indian Stamp (Punjab Amendment) Bill 2023. The recommendation of the Governor was required in terms of the provisions of Article 207(1) of the Constitution for the introduction of the Bill in the Vidhan Sabha., Correspondence was exchanged between the Chief Minister and the Governor. On 15 July 2023, the Chief Minister addressed a communication to the Governor noting that though the Sikh Gurudwaras (Amendment) Bill 2023 was submitted for assent on 26 June 2023, it had not been assented to till then. In his response dated 17 July 2023, the Governor stated that he had proceeded to receive legal advice which gave him reason to believe that the calling of the Vidhan Sabha session on 19 and 20 June 2023 when these four Bills were passed was in breach of law and procedure. The Governor thereby cast doubt on the legitimacy and legality of those Bills. He further indicated that, in the background of the legal advice received, he was actively considering whether to obtain the legal opinion of the Attorney General for India or, as per the Constitution, to reserve these Bills for the consideration and consent of the President of India. The Governor stated that he would take action according to law after the legality of the Vidhan Sabha session held on 19 and 20 June 2023 is first examined., The Governor addressed another letter on 24 July 2023 to the Chief Minister annexing a crux of legal opinion obtained from a constitutional expert, according to which the House so summoned was patently illegal. After the three Money Bills were forwarded to the Governor for consideration in the special session of the Fourth Budget Session of the Sixteenth Punjab Vidhan Sabha, proposed to be held from 20 October 2023, the Governor addressed a communication to the Chief Minister on 19 October 2023. He reiterated that in his previous communications dated 24 July 2023 and 12 October 2023, he had indicated that the calling of the session was patently illegal, against the accepted procedures and practice of the legislature, and against the provisions of the Constitution. The Governor stated: As the Budget Session stood concluded, any such extended session is bound to be illegal, and any business conducted during such sessions is likely to be unlawful and ab initio void. In spite of these communications, disregarding the possibility of taking an unconstitutional step, it appears that a decision has been taken to call the session. For these reasons I withhold my approval to the above mentioned Bills., Notably, the Governor did not declare in any public notification that he is withholding his assent to the Bills. The Governor advised the Chief Minister to call for a fresh Monsoon/Winter Session and to forward an agenda setting out the specific business to be conducted so as to enable him to grant permission for the summoning of the House to transact the business., Aggrieved by the inaction of the Governor, the State of Punjab invoked the jurisdiction of the Supreme Court of India under Article 32 of the Constitution. The State of Punjab seeks: (a) a declaration that the sessions held on 19 June 2023, 20 June 2023 and 20 October 2023 of the Punjab Vidhan Sabha are legal and that the business transacted by the House is valid; and (b) a mandamus to the effect that the seven Bills which have been kept pending by the Governor, including the three Money Bills, be processed in accordance with law., The Supreme Court of India entertained the petition on 6 November 2023. During the course of the hearing, the Court has been apprised of the fact that after the institution of the petition, the Governor has recommended that two out of the three Money Bills, namely the Punjab Goods and Services Tax (Amendment) Bill 2023 and the Indian Stamp (Punjab Amendment) Bill 2023, may be introduced before the Vidhan Sabha., II. Submissions During the course of the hearing, we have heard submissions on behalf of the petitioners by Dr Abhishek Manu Singhvi, senior counsel who appeared with Mr Gurminder Singh, Advocate General for the State of Punjab. Mr Satya Pal Jain, senior counsel appeared on behalf of the Principal Secretary to the Governor., The principal submissions urged on behalf of the petitioners are that: (a) Though the Budget Session of the Legislative Assembly was summoned on 3 March 2023, it was adjourned sine die on 22 March 2023 by the Speaker without prorogation; (b) The adjournment of the House sine die could not have been treated by the Governor as a prorogation of the House; (c) The Speaker was acting within the exercise of constitutional jurisdiction, as evinced by the provisions of the Rules of Procedure governing the Vidhan Sabha, in reconvening the sitting of the Assembly on 19 and 20 June 2023 under the second proviso to Rule 16; (d) Regulating the rules of procedure and the conduct of business in the House lies within the sole discretion of the Speaker; (e) The Governor as a symbolic head of State did not act within the scope of his constitutional powers in concluding that reconvening the session of the Vidhan Sabha in June 2023 was unconstitutional, thereby rendering the legislative business transacted on 20 June 2023 void; and (f) The consequence of the decision of the Speaker is to virtually nullify the legislations which have been passed by an overwhelming majority of the Members of the Legislative Assembly., On the other hand, it has been urged on behalf of the Secretary to the Governor that: (i) After the business of the Budget Session had been transacted, the House was required to be prorogued and it was not open to the Speaker to adjourn the proceeding sine die to be reconvened initially on 19 and 20 June 2023 and thereafter on 19 and 20 October 2023; (ii) Rule 14A of the Rules of Procedure requires that three sessions should be held in the Vidhan Sabha, namely, the Budget Session, the Monsoon Session and the Winter Session and hence, it was not open to the Speaker to continue the Budget Session in the month of June 2023; (iii) The Governor has, as a matter of fact, assented to as many as 185 Bills which were presented to him for assent, which would clearly indicate that there has been no delay on the part of the Governor and it is only in view of the objection to the manner in which the House was adjourned sine die that assent to the four Bills was withheld; (iv) Subsequently, the Governor has even granted his recommendation for the introduction of two of the three Money Bills in the Vidhan Sabha; (v) In the reliefs which have been claimed in the petition under Article 32 of the Constitution, the petitioners themselves seek a declaration that the sessions which were held on 19 and 20 June 2023 and the business which was transacted was legal, which is an indication of the fact that the State of Punjab itself is unsure about the validity of the session; and (vi) The Governor would have no objection whatsoever to deal with the Bills in respect of which assent has been sought if this Court were to clarify that the Budget Session was lawfully adjourned sine die so as to be reconvened in the month of June 2023., Two issues arise for consideration: first, whether the Governor can withhold action on Bills which have been passed by the State Legislature; and second, whether it is permissible in law for the Speaker to reconvene a sitting of a Vidhan Sabha session which has been adjourned but has not been prorogued., III. Analysis A. The Governor is a symbolic head and cannot withhold action on Bills passed by the State Legislature In a parliamentary form of democracy real power vests in the elected representatives of the people. The governments, both in the States and at the Centre, consist of members of the State Legislature, and, as the case may be, Parliament. Members of the government in a cabinet form of government are accountable to and subject to scrutiny by the legislature. The Governor as an appointee of the President is the titular head of State. The fundamental principle of constitutional law which has been consistently followed since the Constitution was adopted is that the Governor acts on the aid and advice of the Council of Ministers, save and except in those areas where the Constitution has entrusted the exercise of discretionary power to the Governor. This principle cements the bedrock of the constitutional foundation that the power to take decisions affecting the governance of the State, or as the case may be of the nation, essentially lies with the elected arm of the government. The Governor is intended to be a constitutional statesman, guiding the government on matters of constitutional concern., These principles have been well established since the decision in Samsher Singh v. State of Punjab, where the Supreme Court of India held: Under the Cabinet system of Government as embodied in our Constitution the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion. It is a fundamental principle of English constitutional law that Ministers must accept responsibility for every executive act. In England the Sovereign never acts on his own responsibility. The power of the Sovereign is conditioned by the practical rule that the Crown must find advisers to bear responsibility for his action. Those advisers must have the confidence of the House of Commons. This rule of English constitutional law is incorporated in our Constitution. The Indian Constitution envisages a parliamentary and responsible form of government at the Centre and in the States and not a presidential form of government. The powers of the Governor as the constitutional head are not different., In SR Bommai v. Union of India a nine‑judge bench of the Supreme Court of India has held that federalism is a part of the basic structure of the Constitution. The manner in which the role of the Governor as a symbolic Head of State is performed is vital to safeguard this basic feature. The exercise of unbridled discretion in areas not entrusted to the discretion of the Governor risks walking rough shod over the working of a democratically elected government at the State. In a steady line of cases this Court has strengthened the importance of institutions and their vitality to democratic functioning. Federalism and democracy, both parts of the basic structure, are inseparable. When one feature is diluted it puts the other in peril. The tuning fork of democracy and federalism is vital to the realization of the fundamental freedoms and aspirations of our citizens. Whenever one prong of the tuning fork is harmed, it damages the apparatus of constitutional governance., In State (NCT of Delhi) v. Union of India, Justice D Y Chandrachud observed: These cases involve vital questions about democratic governance and the role of institutions in fulfilling constitutional values. The Constitution guarantees to every individual the freedom to adopt a way of life in which liberty, dignity and autonomy form the core. The Constitution pursues a vision of fulfilling these values through a democratic polity. The disputes which led to these cases tell us how crucial institutions are to the realisation of democracy. It is through them that the aspirations of a democratic way of life, based on the rule of law, are fulfilled. Liberty, dignity and autonomy are constraining influences on the power of the State. Fundamental human freedoms limit the authority of the State. Yet the role of institutions in achieving democracy is as significant. Nations fail when institutions of governance fail. The working of a democratic institution is impacted by the statesmanship (or the lack of it) shown by those in whom the electorate vests the trust to govern. In a society such as ours, which is marked by a plurality of cultures, a diversity of tradition, an intricate web of social identity and a clatter of ideologies, institutional governance to be robust must accommodate each one of them. Criticism and dissent form the heart of democratic functioning. The responsiveness of institutions is determined in a large measure by their ability to be receptive to differences and perceptive to the need for constant engagement and dialogue. Constitutional skirmishes are not unhealthy. They test the resilience of democracy. How good a system works in practice must depend upon the statesmanship of those who are in decision‑making positions within them. Hence, these cases are as much about interpreting the Constitution as they are about the role of institutions in the structure of democratic governance and the frailties of those who must answer the concerns of citizens., The dispute in the present case essentially bears upon the Governor having detained four Bills which were passed by the Vidhan Sabha on 20 June 2023. Article 200 of the Constitution postulates that when a Bill has been passed by the Legislative Assembly of a State, or, in the case of a bicameral legislature, by both Houses, it shall be presented to the Governor. The Governor has three options available when a Bill which has been passed by the State Legislature is presented for assent. The Governor shall declare either that he assents to the Bill; or that he withholds assent; or that he reserves the Bill for the consideration of the President. Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom. Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill., The present case turns upon how the first proviso is to be construed. In construing the first proviso, it needs to be noted that the substantive part of Article 200 provides the Governor with three options: an option to assent; an option to withhold assent; and an option to reserve the Bill for the consideration of the President. The first proviso opens with the expression the Governor may in contrast to the second proviso which begins with the expression the Governor shall not assent. The may in the first proviso is because the first proviso follows the substantive part which contains three options for the Governor. The first proviso does not qualify the first option (where the Governor assents to the Bill) nor the third option reserving the Bill for consideration of the President. The first proviso attaches to the second option (withholding of assent) and hence begins with an enabling expression, may., By the mandate of the second proviso, there is an embargo on the Governor assenting to a Bill which derogates from the powers of the High Court under the Constitution. The Governor is by the mandate of the Constitution required to reserve such a Bill for consideration of the President., The second proviso impacts upon the option which is provided by the substantive part of Article 200 to the Governor to reserve a Bill for the consideration of the President by making it mandatory in the situation envisaged there. The option of reserving a Bill for the consideration of the President is turned into a mandate where the Governor has no option but to reserve it for the consideration of the President. The second proviso is, therefore, in the nature of an exception to the option which is granted to the Governor by the substantive part of Article 200 to reserve any Bill for the consideration of the President., A proviso, as is well settled, may fulfil the purpose of being an exception. Sometimes, however, a proviso may be in the form of an explanation or in addition to the substantive provision of a statute. The first proviso allows the Governor, where the Bill is not a Money Bill, to send it back to the legislature together with a message. In terms of the message, the legislature may be requested by the Governor to reconsider the entirety of the Bill. This may happen for instance where the Governor believes that the entirety of the Bill suffers from an infirmity. Alternatively, the Governor may request the legislature to reconsider any specific provision of the Bill. While returning the Bill, the Governor may express the desirability of introducing an amendment in the Bill. The desirability of an amendment may arise with a view to cure an infirmity or deficiency in the Bill. The concluding part of the first proviso however stipulates that if the Bill is passed again by the legislature either with or without amendments, the Governor shall not withhold assent therefrom upon presentation. The concluding phrase shall not withhold assent therefrom is a clear indicator that the exercise of the power under the first proviso is relatable to the withholding of the assent by the Governor to the Bill in the first instance. That is why in the concluding part, the first proviso indicates that upon the passing of the Bill by the legislature either with or without amendments, the Governor shall not withhold assent. The role which is ascribed by the first proviso to the Governor is recommendatory in nature and it does not bind the state legislature., This is compatible with the fundamental tenet of a parliamentary form of government where the power to enact legislation is entrusted to the elected representatives of the people. The Governor, as a guiding statesman, may recommend reconsideration of the entirety of the Bill or any part thereof and even indicate the desirability of introducing amendments. However, the ultimate decision on whether or not to accept the advice of the Governor as contained in the message belongs to the legislature alone. That the message of the Governor does not bind the legislature is evident from the use of the expression if the Bill is passed again with or without amendments., The substantive part of Article 200 empowers the Governor to withhold assent to the Bill. In such an event, the Governor must mandatorily follow the course of action indicated in the first proviso of communicating to the State Legislature as soon as possible a message warranting the reconsideration of the Bill. The expression as soon as possible is significant. It conveys a constitutional imperative of expedition. Failure to take a call and keeping a Bill duly passed for indeterminate periods is a course of action inconsistent with that expression. Constitutional language is not surplusage. In State of Telangana v. Secretary to Her Excellency the Honorable Governor for the State of Telangana & Anr., this Court observed that the expression as soon as possible has significant constitutional content and must be borne in mind by constitutional authorities. The Constitution evidently contains this provision bearing in mind the importance attached to the power of legislation which squarely lies in the domain of the state legislature. The Governor cannot be at liberty to keep the Bill pending indefinitely without any action whatsoever., The Governor, as an unelected Head of the State, is entrusted with certain constitutional powers. However, this power cannot be used to thwart the normal course of lawmaking by the State Legislatures. Consequently, if the Governor decides to withhold assent under the substantive part of Article 200, the logical course of action is to pursue the course indicated in the first proviso of remitting the Bill to the state legislature for reconsideration. In other words, the power to withhold assent under the substantive part of Article 200 must be read together with the consequential course of action to be adopted by the Governor under the first proviso. If the first proviso is not read in juxtaposition to the power to withhold assent conferred by the substantive part of Article 200, the Governor as the unelected Head of State would be in a position to virtually veto the functioning of the legislative domain by a duly elected legislature by simply declaring that assent is withheld without any further recourse. Such a course of action would be contrary to fundamental principles of a constitutional democracy based on a parliamentary pattern of governance. Therefore, when the Governor decides to withhold assent under the substantive part of Article 200, the course of action which is to be followed is that which is indicated in the first proviso. The Governor is under Article 168 a part of the legislature and is bound by the constitutional regime., Insofar as Money Bills are concerned, the power of the Governor to return a Bill in terms of the first proviso is excluded from the purview of the constitutional power of the Governor. Money Bills are governed by Article 207 in terms of which the recommendation of the Governor is required for the introduction of the Bill on a matter specified in clauses (a) to (f) of clause (1) of Article 199., Senior counsel for the respondent has argued that the Governor has assented to about 185 Bills which would indicate that the delay on the part of the Governor on the four Bills in question was only based on his objection to the validity of the sitting of the Vidhan Sabha. The learned senior counsel further submitted that the Governor has since granted his recommendation for the introduction of two of the three Money Bills in the Vidhan Sabha. As we have held above, the Governor is not at liberty to withhold his action on the Bills which have been placed before him. He has no avenue but to act in a manner postulated under Article 200. Regardless, these submissions do not affect the role of the Governor under the Constitution or justify the inaction on the Bills sent to him by a democratically elected State Legislature., In view of the above, the Governor of Punjab was not empowered to withhold action on the Bills passed by the State Legislature and must act as soon as possible. Article 168 Constitution of Legislatures in States provides that for every State there shall be a Legislature which shall consist of the Governor and, where applicable, two Houses; in other States, one House.
id_123	1	Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly. In any event, as delineated below, it was legally permissible for the Speaker to reconvene the Vidhan Sabha because there is a distinction between adjournment and prorogation; and the Speaker has exclusive jurisdiction over regulating the procedure of the House., Reconvening a sitting of the Vidhan Sabha which has not been prorogued is permissible in law and is within the exclusive domain of the Speaker., Distinction between adjournment and prorogation. Article 174 of the Constitution provides that the Governor shall from time to time summon the House or each House of the legislature of the State to meet at such time and place as he thinks fit. However, clause (1) also specifies that six months shall not intervene between the last sitting in one session and the date appointed for the first sitting in the next session. Clause (2) of Article 174 empowers the Governor, from time to time to (a) prorogue the House or either House of the legislature; and (b) dissolve the Legislative Assembly. Article 174 thus makes a reference to distinct constitutional concepts, namely, the power to prorogue and the power to dissolve., Significantly, Article 174 also makes a distinction between a sitting of the legislature and a session of the legislature. While specifying the maximum duration between two sittings, Article 174(1) stipulates that not more than six months should elapse between the last sitting of the legislature in one session and the date appointed for its first sitting in the next session. This implicitly recognizes that there may be more than one sitting of the legislature comprised in one session. Similar provisions have been made in relation to Parliament under Article 85 of the Constitution., Kaul and Shakdher in their well‑known treatise on the Practice and Procedure of Parliament (7th Ed.) note that the termination of a session of the House of Parliament by an order made by the President under Article 85(2) of the Constitution is called prorogation. Moreover, the President in exercising the power to prorogue the House acts on the advice of the Prime Minister. Usually, as the authors note, prorogation follows the adjournment of the sitting of the House sine die. However, the authors list several instances where the adjournment of the sitting of the House sine die is not followed by a prorogation and the sittings of the House are reconvened by the Speaker., For example, the Eighth Session of the Eighth Lok Sabha commenced on 23 March 1987 and was adjourned sine die on 12 May 1987. The Lok Sabha was not prorogued. The Speaker reconvened the sittings of the Lok Sabha from 27 July 1987 which continued till 28 August 1987. The two parts, preceding and following the period of adjournment of the Lok Sabha sine die on 12 May 1987, were treated as constituting one session divided into two parts. On conclusion of the second part of the Eighth Session, the Lok Sabha was adjourned sine die on 28 August 1987 and was prorogued on 3 September 1987. The Third Session of the Ninth Lok Sabha commenced on 7 August 1990 and was adjourned sine die on 7 September 1990. The Lok Sabha was not prorogued. The Speaker reconvened the sittings of the Lok Sabha from 1 October 1990 which continued till 5 October 1990., Similar incidents of reconvening an adjourned sitting of the House without prorogation can also be found in the Fourteenth Session of the Eighth Lok Sabha which commenced on 18 July 1989; the First Session of the Eleventh Lok Sabha which commenced on 22 May 1996; the Fourteenth Session of the Thirteenth Lok Sabha which commenced on 2 December 2003; and the Seventh Session of the Fourteenth Lok Sabha which commenced on 16 February 2006., Article 208 of the Constitution provides that a House of the legislature of a State may make rules for regulating, subject to the provisions of the Constitution, its procedure and the conduct of its business. The Rules of Procedure framed by the Punjab Vidhan Sabha contain provisions which have a bearing on the subject under discussion. Rule 2 defines 'prorogue' to mean the ending of a session by an order of the Governor under Article 174(2)(a) of the Constitution. Rule 3 postulates that when a session of the Vidhan Sabha is summoned under Article 174 of the Constitution, the Secretary shall issue a notification in respect thereof in the Gazette. According to Rule 7, when a session of the Vidhan Sabha is prorogued, the Secretary shall issue a notification in the Gazette and inform the Members. Rule 7A postulates that on the prorogation of the House, all pending notices, other than notices of intention to move for leave to introduce a Bill, shall lapse. Rule 14 provides that the sitting of the Vidhan Sabha is duly constituted when it is presided over by the Speaker or any other Member competent to preside over a sitting under the Constitution or the Rules. Rule 14A provides that subject to the provisions of Article 174, there shall be three Sessions in a financial year, namely, the Budget Session, Summer/Monsoon Session and Winter Session of the Assembly and that the total number of sittings in all the Sessions put together shall not be less than forty. Rule 16 provides as follows: Subject to the provisions of the Constitution and these Rules the Vidhan Sabha (Assembly) may be adjourned from time to time by its own order, provided that a motion for adjournment of the Vidhan Sabha (Assembly) to a day or sine die shall not be made except in consultation with the Speaker; provided further that the Speaker may, if it is represented to him by the Minister that the public interest requires that the Vidhan Sabha (Assembly) should meet at any earlier time during the adjournment and if he is satisfied that the public interest does so require, give notice that he is so satisfied, and call a meeting of the Vidhan Sabha (Assembly) before the day to which it has been adjourned or any time after it has been adjourned sine die., Rule 16 indicates that the Vidhan Sabha may be adjourned by its own order from time to time. This is however subject to the provisions of the Constitution and the Rules. In terms of the first proviso, a motion for adjournment either to a day or sine die requires consultation with the Speaker. Significantly, in terms of the second proviso, the Speaker is empowered in public interest to call a meeting of the Vidhan Sabha earlier than the date to which it has been adjourned or at any time after it has been adjourned sine die. Therefore, it is clear that the Rules of Procedure expressly recognize a situation where the Speaker reconvenes a sitting of the Vidhan Sabha which has been adjourned sine die but not prorogued., The provision empowering the Speaker to reconvene a sitting of the Vidhan Sabha on any date after it has been adjourned sine die is not unique to the Rules of Procedure of the Punjab Vidhan Sabha. A review of the Rules of Procedure of State Legislatures for various states indicates that almost all of them contain an identical or similar provision. By way of illustration, the Rules of Procedure for the State Legislatures of Rajasthan, Haryana, Tamil Nadu, Kerala and West Bengal expressly permit the Speaker to call a sitting of the House any time after it has been adjourned. A similar provision is also contained in the first proviso to Rule 15(1) of the Rules of Procedure and Conduct of Business in Lok Sabha. Therefore, it is common practice for the Rules of Procedure of State Legislatures and Parliament to permit the Speaker to call a sitting of the House after it has been adjourned sine die., In Ramdas Athawale v. Union of India and Others, a Constitution Bench of the Supreme Court of India distinguished between the prorogation of the House and its adjournment. The Court held that an adjournment is an interruption in the course of one and the same session, whereas a prorogation terminates a session. The effect of prorogation is to put an end, with certain exceptions, to all proceedings in Parliament then current. In May's Parliamentary Practice, which has assumed the status of a classic on the subject and is usually regarded as an authoritative exposition of parliamentary practice, it is stated: A session is the period of time between the meeting of a Parliament, whether after the prorogation or dissolution, and its prorogation. During the course of a session, either House may adjourn itself of its own motion to such as it pleases. The period between the prorogation of Parliament and its reassembly in a new session is termed recess; while the period between the adjournment of either House and the resumption of its sitting is generally called an adjournment., The Speaker shall determine the time when a sitting of the House shall be adjourned sine die or to a particular day, or to an hour or part of the same day; provided that the Speaker, if he thinks fit, may call a sitting of the House before the date or time to which it has been adjourned or at any time after the House has been adjourned sine die., It is thus clear that whenever the House resumes after it is adjourned sine die, its resumption for the purpose of continuing its business does not amount to commencement of a new session. The resumed sitting of the House on 29 January 2004 does not amount to commencement of the first session in the year 2004., The Constitution and established legislative practice distinguish between adjournment sine die and prorogation of the session of the House. In the case before us the Vidhan Sabha was adjourned on 22 March 2023 without prorogation. Therefore, the Speaker was empowered to reconvene the sittings of the House within the same session., Article 178 of the Constitution provides for the office of the Speaker and Deputy Speaker of a Legislative Assembly. Article 212 of the Constitution precludes the courts from inquiring into the proceedings of the legislature of the State. A corresponding provision with regard to Parliament is contained in Article 122. The decision in Ramdas Athawale is significant in that it dwells on the role of the Speaker of the House and interprets Article 122 of the Constitution. The Constitution Bench observed that the Speaker is the guardian of the privileges of the House and its spokesman and representative upon all occasions. He is the interpreter of its rules and procedure, and is invested with the power to control and regulate the course of debate and to maintain order. The powers to regulate the procedure and conduct of business of the House of the People vest in the Speaker of the House. By virtue of the powers vested in him, the Speaker, in purported exercise of his power under Rule 15 of the Rules of Procedure and Conduct of Business in Lok Sabha, issued a notice dated 20 January 2004 through the Secretary General of the Lok Sabha directing resumption of sittings of the Lok Sabha which was adjourned sine die on 23 December 2003. Whether the resumed sitting on 29 January 2004 was to be treated as the second part of the fourteenth session as directed by the Speaker is essentially a matter relating purely to the procedure of Parliament. The validity of the proceedings and business transacted in the House after resumption of its sittings cannot be tested and gone into by this Court in a proceeding under Article 32 of the Constitution of India., The Court observed that under Article 122(2), the decision of the Speaker in whom powers are vested to regulate the procedure and conduct of business is final and binding on every Member of the House. Hence, this Court held that the validity of the Speaker adjourning the House sine die and the later direction to resume sittings could not be inquired into on the ground of any irregularity of procedure. The Court reaffirmed that the business transacted and the validity of proceedings after the resumption of sittings of the House pursuant to the direction of the Speaker cannot be inquired by the courts. This follows the fundamental principle that each House of the legislature is the sole judge of the lawfulness of its own proceedings and is immune from challenge before a court of law., Rule 16 of the Rules of Procedure empowers the Vidhan Sabha to adjourn from time to time by its own order. The first proviso to Rule 16 acknowledges that adjournment of the Vidhan Sabha may be either to a particular day or sine die. An adjournment sine die postulates that there is no specific date on which the sitting of the Vidhan Sabha is convened. The first proviso requires express consultation with the Speaker for the adjournment of the Vidhan Sabha. However, even when an adjournment takes place the Speaker is entrusted in public interest to call a meeting of the Vidhan Sabha before the date to which it has been adjourned. These provisions are a clear indicator of the control of the Speaker in the conduct of the legislative business of the House and matters pertaining to its adjournment., Therefore, it was legally permissible for the Speaker to reconvene the sitting of the Vidhan Sabha after it was adjourned sine die without prorogation. Further, the Speaker was empowered as the sole custodian of the proceedings of the House to adjourn and reconvene the House., The submission that the declaration sought by the State of Punjab in the present petition, namely that the sessions of the Vidhan Sabha and the business transacted were legal, indicates that the State of Punjab is unsure about the validity of the sessions. The declaration has not been sought in a vacuum but in response to the Governor's inaction on the Bills purportedly on the grounds that the sessions were invalid. In fact, as evidenced by the correspondence, the State of Punjab has consistently held the position that the sessions of the Vidhan Sabha and the business transacted therein are legal and constitutionally valid. The fact that a petitioner has approached this Court seeking declaratory relief cannot be used to the petitioner's detriment., During the course of the hearing, a question was posed to the senior counsel appearing on behalf of the State of Punjab as to whether the course of action followed in the present case could possibly be utilized to justify the indefinite adjournment of the House sine die so as to obviate the prorogation of the House. We posed a query to learned counsel on whether the power of adjourning the House sine die could be used to obviate the proroguing of the House over an entire year. Responding to the query, Dr Abhishek Manu Singhvi, senior counsel appearing on behalf of the petitioner, submitted that the Chief Minister heading the Council of Ministers of the State of Punjab would be advising the Speaker to convene the Winter Session of the State Legislative Assembly at an early date which would be fixed in due consultation. Dr Singhvi urged that the course of action adopted in the present case was due to the difficulty faced by the government in having the House summoned by the Governor. Counsel adverted to the situation which arose when the Governor was delaying in summoning the Vidhan Sabha for the Budget session, which eventually led to proceedings before this Court under Article 32. The imbroglio which arose in the State would have been obviated by statesmanship and collaboration., Conclusion. Bearing in mind the well‑settled principles which have been adverted to above, we are of the view that there is no valid constitutional basis to cast doubt on the validity of the session of the Vidhan Sabha which was held on 19 June 2023, 20 June 2023 and 20 October 2023. Any attempt to cast doubt on the session of the legislature would be replete with grave perils to democracy. The Speaker, who has been recognized to be a guardian of the privileges of the House and the constitutionally recognized authority who represents the House, was acting well within his jurisdiction in adjourning the House sine die. The reconvening of the House was within the ambit of Rule 16 of the Rules of Procedure. Casting doubt on the validity of the session of the House is not a constitutional option open to the Governor. The Legislative Assembly comprises duly elected Members of the Legislature. During the tenure of the Assembly, the House is governed by the decisions taken by the Speaker in matters of adjournment and prorogation. We are, therefore, of the view that the Governor of Punjab must now proceed to take a decision on the Bills which have been submitted for assent on the basis that the sitting of the House which was conducted on 19 June 2023, 20 June 2023 and 20 October 2023 was constitutionally valid., We clarify that we have not expressed any opinion in regard to the manner in which the Governor will exercise his jurisdiction on the Bills in question presented to him. However, he must act in a manner consistent with the provisions of Article 200 of the Constitution., The petition shall accordingly stand disposed of in the above terms., Pending applications, if any, stand disposed of.
id_1230	0	Case Number HRFB02005709-2023, Case Information System Number C S/3874/2023. Present: Sh. Vineet M. Bajaj, Yash Singhal, Aditya Vardhan and Karan Bansal, Advocates for applicant/plaintiffs No.1 and No.2. Defendant No.1: Sh. Jitender Datta Parashar, Advocate for defendant No.2., By this order I shall dispose of an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure moved by the plaintiff., Learned counsel for the applicant/plaintiff submitted that plaintiff No.2 Mr. Vivek Bindra, CEO of plaintiff No.1 M/s Bada Business Pvt. Ltd., is a renowned YouTuber and is recipient of many awards on national as well as world level. He is a person of unimpeachable character. There is neither any complaint nor any inquiry pending against him. Even no authority has issued any statutory notice to him., Defendant No.1 Sandeep Maheshwari is also a YouTuber. He also does a similar business to that of plaintiff No.2. He has started a smear campaign against the plaintiff in order to malign his reputation so that Defendant No.1 may allure the clientage of the plaintiffs., Defendants No.2 and 3 are the clients of the plaintiffs. Defendant No.1 without explicitly taking names of plaintiffs orchestrated a tutored video of defendants No.2 and 3 and uploaded an incomplete video of the session on 11.12.2023 on his YouTube channel. He titled the video as BIG SCAM EXPOSED and also depicted a man suited in a red tie in complete resemblance to the business mark of the plaintiffs. Thereafter, in a community post dated 13.12.2023, Defendant No.1 explicitly admitted that the contents of the video were related to the plaintiffs only. The video dated 11.12.2023 has spread on social media like fire and approximately 75 lakh people have already seen such video., Plaintiffs have been suffering huge loss of revenue due to such video. Such video is continuously causing loss to the reputation and esteem of the plaintiffs. Plaintiffs cannot be allowed to disseminate such videos in order to satisfy his hidden agendas and motives. He also put a community post wherein he straightway held the plaintiffs guilty of indulging in a scam. Thereafter, he deleted his community post dated 16.12.2023 without making any clarification of the same., Defendant No.1 is not an authority to hold him guilty of any fraud or scam. If any client of the plaintiffs is not satisfied with the service of the plaintiff, he may go to a consumer forum or he can make a police complaint but Defendant No.1 has no right to upload any defamatory content against the plaintiff in order to tarnish his image., If the video dated 11.12.2023 is not ordered to be deleted, the plaintiff would be finished at the time of final disposal of the suit. Even, if the suit of the plaintiff is finally decreed by this court, then he would have nothing to lose at that time. The loss being caused to the plaintiff by such video cannot be compensated in terms of money., There are various authorities of the Hon'ble Delhi High Court observing that statements causing injury to the reputation of a plaintiff are required to be deleted as it is difficult to contemplate complete restitution through damages. To support his arguments, learned counsel for the plaintiffs placed reliance upon the following judgments: Vinai Kumar Saxena versus Aam Aadmi Party and Others 2022 SCC OnLine Del 3093 (Delhi High Court), Naresh Kumar versus Wire and Others 2023 SCC OnLine Del 7314 (Delhi High Court), Convergytics Solutions Pvt. Ltd. and Others versus Randhir Hebbar and Others 2021 SCC OnLine Del 4811 : (2022) 286 DLT 51 (Delhi High Court), and (2023) 7 Supreme Court Cases 799 : 2023 SCC OnLine SC 31., With such submission, he requested to grant a temporary injunction restraining Defendant No.1 from uploading any defamatory remark or content on social media against the plaintiff and for an interim mandatory injunction seeking direction to delete/take down the video dated 11.12.2023 and community posts dated 12.12.2023, 13.12.2023, 15.12.2023 and 16.12.2023., Per contra, learned counsel for Defendant No.1 submitted that Defendant No.1 Mr. Sandeep Maheshwari does not do any business alike to the plaintiff. Therefore, he needs not to disseminate or publish any video or post for any business gain. The content of the video dated 11.12.2023 is not defamatory at all. Even the name of Mr. Vivek Bindra has not been used once in a video. Defendant No.1 uploaded a video of a session on 11.12.2020 without naming any person. They only discussed the business model of a YouTuber. It is plaintiff No.2 who related the video to himself and sent goons to the office of Defendant No.1 to intimidate him. Thereafter Defendant No.1 wrote a community post to Mr. Vivek Bindra, but he did not make any defamatory remark for him., She further submitted that plaintiff No.2 is not of an unimpeachable character. He is actually defrauding the youngsters in pretext of selling product/course. Plaintiff allures the young unemployed persons to buy his course to learn the techniques of becoming rich, but he does not provide any business course to them. When their students/clients ask for refund of their money, plaintiff asks them to resell such course to three to four other persons so as to get reimbursed of their money in the form of commission., Learned counsel for Defendant No.1 has drawn the attention of the Hon'ble Civil Court, Faridabad over the transcription of the video dated 11.12.2023 wherein no defamatory remarks have been made against any person. She has also drawn the attention of this court over many posts made by various persons on Quora.com wherein people have straightway said that the plaintiff company has been befooling the young unemployed persons. She further submitted that after uploading such video, Defendant No.1 has received approximately 7,500 emails from the disgruntled clients of the plaintiff who have been defrauded and befooled by the plaintiff company. Defendant No.1, being a public‑spirited person, is only providing a platform to all such persons who fell prey to the business schemes of the plaintiff. Defendant No.1 has not published anything wrong or false. Any imputation of truth made for public good is the best defence to defamation. Social media is replete with posts and comments made by the students and clients of the plaintiffs who found themselves defrauded by the business schemes of the plaintiffs. Mr. Maheshwari Piri, founder of Carrier 360, also made a video against plaintiff No.2 titled as Lakho Bachho Ke Sath Cheating. Plaintiff has not produced any material to falsify such allegations. Therefore, freedom of speech and expression guaranteed by the Indian Constitution cannot be fettered on the basis of this false and frivolous suit filed by the plaintiff., She further submitted that the relief clause of both the plaint as well as the application for stay is the same. Plaintiff has been seeking direction to Defendant No.1 to delete the video dated 11.12.2023 in the form of an interim mandatory injunction. If the Hon'ble Civil Court, Faridabad grants the interim mandatory injunction to delete such video, it would tantamount to decreeing the suit before carrying out any trial. Interim mandatory injunction can only be granted if there is a strong prima facie case in favour of the plaintiff, whereas there is no basis of the case of the plaintiff as the video dated 11.12.2023 does not disclose the identity of the plaintiff. Defendants No.2 and 3 came to the show of Defendant No.1 and they discussed the business model of the plaintiff in such session. Defendant No.1, without mentioning the name of the plaintiff, uploaded such video on his YouTube channel. It is only the plaintiff who sent his goons to the office of Defendant No.1 to intimidate him. Such video does not depict anything wrong or false against any person., She further submitted that even the All India Council for Technical Education, a Government Department, has issued an advisory against the fake MBA programme being run by the plaintiff. Plaintiff has been providing a ten‑day MBA course to young unemployed persons. In a public notice dated 28.12.2023, the Government advised the students and stakeholders to be cautious of such misleading programmes and not to fall prey to such fraudulent offers., She further submitted that this court has no jurisdiction to try the civil suit. As per Section 20 of the Civil Procedure Code, a civil suit can be filed where the defendant resides or where the wrong is committed. In the case in hand, the defendant is a resident of Delhi. The video in question was prepared in Delhi. The same was uploaded on the YouTube channel of Defendant No.1 in Delhi. Plaintiff has filed this suit in the Civil Court, Faridabad only on the ground that he is a resident of Faridabad and he saw such video in Faridabad. He has nowhere stated that such video has caused any harm to his reputation in Faridabad. He has not even pleaded that he holds any reputation in Faridabad. Therefore, the Hon'ble Civil Court, Faridabad has no jurisdiction to entertain the suit., Learned counsel for the defendants relied upon the following judgments: Ajay Pal Sharma versus Udaiveer Singh decided on 28 July 2020 (Delhi High Court), Tata Sons Limited versus Greenpeace International & Anr. 2011 SCC OnLine Del 466 : (2011) 178 DLT 705 : (2011) 45 PTC 275 (Delhi High Court), Deoraj versus State of Maharashtra & Others (2004) Supreme Court Cases 697 : 2004 SCC OnLine SC 442, Samir Narain Bhojwani versus Aurora Properties & Investments & Anr. (2018) 17 Supreme Court Cases 203, Dorab Cawasji Warden versus Coomi Sorab Warden & Others (1990) 2 Supreme Court Cases 117, Ram Jethmalani versus Subramaniam Swamy 2006 (87) DRJ 603 (Delhi High Court), Dr. Subramaniam Swamy versus Ramakrishna Hegde (1990) 1 Supreme Court Cases 4, Banyan Tree Holding (P) Limited versus A. Murali Krishna Reddy & Anr. 2009 SCC OnLine Del 3780 : (2010) 42 PTC 361 (Delhi High Court), Escorts Limited versus Tejpal Singh Sisodia 2019 SCC OnLine Del 7607 (Delhi High Court), Balaji Ventures Pvt. Ltd. versus Maharashtra State Power Generation Company Ltd. and Ors. SLP (C) Nos. 1616 and 1673 of 2022 (Supreme Court of India), Independent News Service Pvt. Ltd. versus India Tek Singh versus Shashi Verma & Another (2019) 16 Supreme Court Cases 678., Learned counsel for Defendant No.2 also argued along the lines advanced by learned counsel for Defendant No.1 and also requested dismissal of the stay application., I have heard Sh. Vineet M. Bajaj, learned counsel for the plaintiff, Ms. Mumtaz Bhalla, learned counsel for Defendant No.1 and Sh. Jitender Datta Parashar, learned counsel for Defendant No.2, and perused the case file very carefully and meticulously., Plaintiff has filed the present suit for permanent and mandatory injunction against the defendants pleading that plaintiff No.2 is a renowned YouTuber and is a motivational speaker. Defendant No.1 also does the same business and in order to cause loss to the business of the plaintiff he has started maligning his reputation over social media. He has allured some of the students of the plaintiff company and has orchestrated a tutored video with defendants No.2 and 3. He has pleaded that the video of 11.12.2023 and community posts dated 12.12.2023, 13.12.2023, 15.12.2023 and 16.12.2023 have been causing huge loss to the business of the plaintiff and sought an interim mandatory injunction seeking direction to the defendants to delete the video dated 11.12.2023 and community posts and a temporary injunction restraining the defendants from passing any defamatory remark, video etc. on social media against the plaintiff., On the other hand, Defendant No.1 has taken the defence of public good and truth against the allegations levelled by the plaintiff. Defendant No.1 has brought on record various posts of social media and emails stated to have been sent by students of the plaintiff to the defendants wherein they have accused the plaintiff of defrauding and befooling the public. Defendant No.1 has stated that he is a public‑spirited person and has only provided a voice to the victims of misrepresenting and misleading business programmes of the plaintiff., Defendant No.2, who is admittedly a student of the plaintiff, has also supported the stand of Defendant No.1 and stated that he is a victim of the misleading and misrepresenting programme of the plaintiff., At this nascent stage, when both the parties are yet to lead evidence to prove their averments and to disprove the averments of the opposite party, the genuineness of the allegations levelled by the defendants against the plaintiffs cannot be commented upon. Both plaintiff No.2 and Defendant No.1 are renowned YouTubers. Plaintiff No.2 Mr. Vivek Bindra is stated to have 21.5 million subscribers and Defendant No.1 Mr. Sandeep Maheshwari is stated to have 28.5 million subscribers. Any accusation or allegation against the plaintiff made on the YouTube channel of Defendant No.1 certainly has potential to cause injury to the business and reputation of the plaintiff., Article 19 guarantees freedom of speech and expression to every citizen, but it is not absolute. It is subject to a number of restrictions mentioned in the Constitution of India itself. Defamation is one of the exceptions to the freedom guaranteed by Article 19 of the Constitution of India. Defendants can exercise their freedom of speech and expression only in harmony with the right to business, livelihood and reputation of the plaintiff. No one has any right to disparage, defame, disrepute or malign the reputation of any person unless he is in possession of sufficient material or unbiased information clearly pointing out any kind of illegal and nefarious activities of such person. Freedom of speech and expression is certainly amenable to reasonable restrictions laid down in the Constitution of India, which includes defamation., In State versus Bihar versus Lal Krishna Advani AIR 2003 Supreme Court 3357, the Hon'ble Supreme Court observed: (vi) On the one hand, there is a fundamental right of freedom of speech and expression guaranteed under the Constitution of India and on the other hand, there is the right of an individual to his reputation and goodwill. The question arises as to how to bring about a balance between the two rights, how far the right of freedom of speech and expression can extend and when it becomes necessary for the law to stop in order to safeguard the right of the individual to preserve his reputation and dignity. The law of defamation seeks to attain a balance between the two competing rights., In Ram Jethmalani versus Subramaniam Swamy (supra), the Hon'ble Delhi High Court observed that: 92. Defamation is a public communication which tends to injure the reputation of another. What statements are defamatory and the span of defences varies from jurisdiction to jurisdiction but there is common agreement in all jurisdictions that statements that are unflattering, annoying, irksome, embarrassing or hurt one's feelings are not actionable. The common element in all jurisdictions is the potential to injure reputation. 93. Since the law of defamation, by making certain utterances actionable, runs counter to another widely accepted legal tenet—the right to freedom of expression—the two have been harmonised by the judicial process so that an individual's right of privacy and protection of honour and reputation is preserved and, at the same time, the public interest in free speech is also protected., Traditional defences to an action for defamation have now become fairly crystallised and can be compartmentalised 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 Court has to agree with the opinion, but is limited to determining whether the view 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 where the defence is of qualified privilege. Privilege 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 court proceedings or proceedings before tribunals which have all the trappings of a civil court and parliamentary proceedings is that if the threat of defamation suits looms large over the heads of lawyers, litigants, witnesses, judges and parliamentarians, it would prohibit them from speaking freely and public interest would suffer., Defendant No.1 has produced a hefty record including the posts made by the public against the plaintiff on Quora.com, videos of Mr. Maheshwari Piri and emails stated to have been sent by students/clients of the plaintiff to Defendant No.1 wherein plaintiff No.2 Mr. Vivek Bindra is being accused of defrauding or misrepresenting his clients. However, he cannot be allowed to make defamatory remarks against the plaintiff as the genuineness of all such records is yet to be checked. Therefore, at this stage, the defence of truth or public good cannot help Defendant No.1 to disseminate or propagate defamatory remarks or accusations against the plaintiff., In addition to the temporary injunction, the plaintiff has also sought an interim mandatory injunction seeking direction to Defendant No.1 to delete the video dated 11.12.2023 and community posts dated 12.12.2023, 13.12.2023, 15.12.2023 and 16.12.2023. To obtain an interim mandatory injunction, the applicant is required to establish a very strong prima facie case of a standard much higher than a mere prima facie case. The Hon'ble Supreme Court has widely discussed the law relating to interlocutory mandatory injunctions in Dorab Cawasji Warden versus Coomi Sorab Warden & Others. The relief of interlocutory mandatory injunctions is generally granted to preserve or restore the status quo that existed before the pending controversy until the final hearing when full relief may be granted, or to compel the undoing of acts that have been illegally done or the restoration of that which was wrongfully taken from the complaining party. However, granting such an injunction to a party who fails or would fail to establish his right at trial may cause great injustice or irreparable harm to the party against whom it was granted, and not granting it to a party who succeeds may equally cause great injustice or irreparable harm. Courts have therefore evolved certain guidelines: (1) The plaintiff must have a strong case for trial, i.e., a higher standard than that required for a prohibitory injunction; (2) It must be necessary to prevent irreparable or serious injury which cannot normally be compensated in money; (3) The balance of convenience must be in favour of the party seeking such relief., The video dated 11.12.2023 was played in the Hon'ble Civil Court, Faridabad. Even learned counsel for Defendant No.1 read out the relevant transcription in her arguments. However, there is no direct imputation against the plaintiff in the video. In the impugned video, Defendant No.1 can be seen discussing the business model of a YouTuber, wherein Defendants No.2 and 3 have been complaining that they purchased the business course from a YouTuber for Rs.50,000 and Rs.35,000 respectively. They have been accusing that he does not impart any business education to his clients/students, rather he has been making them salesmen. In such video, they are accusing the unnamed YouTuber of earning commission under the garb of providing educational courses. The ten‑minute video was uploaded by Defendant No.1 on his YouTube channel on 11.12.2023. Thereafter, Defendant No.1 posted a community post stating that the plaintiff sent his employees to the office of Defendant No.1 in order to intimidate him to delete the video. Further community posts are mentioned at pages 97 and 98 annexed with the complaint. A complete scrutiny of the video dated 11.12.2023 reflects that Defendant No.1 did not make any direct imputation against plaintiff No.2. From the community post it appears that he admitted the video to be belonging to the plaintiff but there are no defamatory remarks in any community post except the one dated 16.12.2023, which has already been deleted by Defendant No.1 as admitted by the plaintiff in their plaint., To prove a strong prima facie case in his favour, the plaintiff was required to establish that the contents of the video are false and that Defendant No.1 uploaded the same with malice. However, he has not even denied the business model/schemes discussed in the video and has not disclosed his actual business models/schemes in his plaint. He was supposed to specify any imputation or allegation in the video which is defamatory and false; however, the plaintiff failed to point out the same. At this stage, there is nothing on record which may suggest that the impugned video dated 11.12.2023 contains any false and defamatory content against the plaintiff. Learned counsel for the plaintiff relied upon Naresh Kumar versus Wire & Others and Vinai Kumar Saxena versus Aam Aadmi Party & Others to support their relief of interim mandatory injunctions against the defendants. With due respect, the gist of both authorities is not disputed but they are not applicable to the case in hand as the facts of those cases are distinguishable. In Naresh Kumar versus Wire & Others, the defendants had published and circulated an article levelling direct allegations of corruption against the Chief Secretary of the Government of the National Capital Territory, Delhi. In Vinai Kumar Saxena versus Aam Aadmi Party & Others, the defendant Aam Aadmi Party circulated hashtags making direct imputation against the Lieutenant Governor of Delhi. In the present case, the impugned video contains neither any imputation nor any direct defamatory remarks against the plaintiff., Further, the contention of learned counsel for Defendants No.1 and 2 that the Hon'ble Civil Court, Faridabad has no territorial jurisdiction to entertain the civil suit on the ground that the plaintiff has not suffered any loss of reputation in Faridabad does not hold much relevance at this stage. Plaintiff Mr. Vivek Bindra carries out his business in Delhi and resides in Faridabad. His YouTube channel is stated to have been subscribed by 21.05 million persons. The impugned video has already been seen by more than 70 lakh persons. Therefore, it would not be appropriate to hold that the plaintiff does not have any reputation in Faridabad or that no person in Faridabad has seen the impugned video or community post. Considering the peculiar circumstances of this case, the issue of jurisdiction is a mixed question of law and fact and cannot be decided at this preliminary stage., In light of the above discussion, the Hon'ble Civil Court, Faridabad is of the considered view that the plaintiff has failed to prove a strong prima facie case warranting the grant of an interim mandatory injunction. However, the plaintiff certainly has a prima facie case to the extent that any defamatory remarks, imputation or accusation by Defendant No.1 can cause huge loss to the business and reputation of the plaintiff. Learned counsel for Defendant No.1 also placed on record an order dated 15.01.2024 passed by the Hon'ble Delhi High Court wherein the Hon'ble Court restrained a channel partner of the plaintiff from uploading any defamatory video against Defendant No.1 on the basis of an order dated 22.12.2023 passed by this court. The relevant portion of the order dated 15.01.2024 is reproduced as follows: \For the aforesaid reasons, in line with the order passed by the learned Civil Court in respect of the parties to the suit, until the next date of hearing, Defendant No.3 is restrained from publishing any defamatory/disparaging video against the plaintiffs on social media platforms or any other online or offline mode.\, Both the plaintiff and Defendant No.1 are renowned YouTubers. Any of their videos or posts on social media certainly induces a great number of youth following them. Therefore, to rest the controversy, both the plaintiff and Defendant No.1 are restrained from uploading any defamatory or disparaging video or posts over social media or any other online and offline mode against each other. Accordingly, the stay application stands partly allowed. With due respect, the gist of the authorities cited by learned counsel for the plaintiff to support relief of an interim mandatory injunction is not disputed; however, the same is not applicable to the present facts and circumstances of the case. Nothing herein above stated shall be deemed to be an expression of the merits of the case. Date 05.02.2024 (Gagandeep Goyal), Civil Judge (Junior Division), Faridabad, UID No. HR00517.
id_1232	0	High Court of Judicature at Allahabad (Lucknow) Reserved Petitioner: Suo-Moto Inre Right To Decent And Dignified Last Rites/Cremation Respondent: State of Uttar Pradesh through Additional Chief Secretary Home and Others. Counsel for Petitioner: Abhinav Bhattacharya, Ajit Singh, Anjani Kumar Mishra, Ashish Kumar Agarwal, Atul K. Singh, Atul Kumar Singh, Digvijay Singh Yadav, Jaideep Narain Mathur (Advocate), Nadeem Murtaza, Onkar Singh, Pradeep Kumar Singh, Seema Kushwaha, Sharad Bhatnagar. Counsel for Respondent: C.S.C., A. S., G., Anurag Kumar Singh, Ashok Shukla, Dr. Ravi Kumar Mishra, Manjusha, Pranjal Krishna, Satyaveer Singh, Honourable Rajan Roy, Honourable Jaspreet Singh., These proceedings were ordered to be registered suo moto under Article 226 of the Constitution of India taking cognizance of certain incidents which took place on 14 September 2020 in District Hathras involving the alleged rape and murder of a girl belonging to a Scheduled Caste of 19 years followed by her cremation in the wee hours of the night of 29/30 September 2020 which appeared to be against the wishes of her family members thereby raising important questions pertaining to fundamental right to a decent burial and role of State authorities in this regard., As regards the criminal case pertaining to the alleged rape and murder, monitoring of investigation and trial is also being undertaken by this Court under Article 226 of the Constitution of India. In this regard, certain orders have been passed by the Supreme Court of India on 27 October 2020 in Writ Petition (Criminal) No. 296 of 2020; Satyama Dubey and others versus Union of India and others and other connected petitions. The trial is still pending., In these very proceedings the victim's family has claimed employment for one of its members i.e. the elder brother in view of Item 46 of Schedule Annexure‑I which is referable to Rule 12(4) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 (hereinafter referred to as ‘Rules 1995’) and Section 15A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as ‘Act 1989’), and the assurance given to it on 30 September 2020 by the Head of the State which has been recorded in a document of the same date. The family has also claimed relocation as per the provisions of the Act 1989 considering the inimical condition in its village., The victim's family which belongs to a Scheduled Caste filed an affidavit dated 23 October 2020 inter alia seeking relocation or rehabilitation outside the State of Uttar Pradesh as also Government employment to one member of the family. Subsequently, an additional affidavit dated 6 January 2021 was filed on behalf of the victim's family seeking inter alia employment to one of the brothers of the victim on a Group ‘C’ post in the Government and also seeking the benefits prescribed at Item 46 of the Schedule Annexure‑I to the Rules 1995., Response to these affidavits have been filed by the State which are on record., In nutshell, the contention of Ms. Seema Kushwaha, learned counsel for the victim's family was that on 30 September 2020 the Head of the State had given certain assurances with regard to employment etc. to the victim's family. The monetary benefit as promised has been extended but the employment part has not been complied. The assurances were reduced in writing and were signed by the District Magistrate and various other public authorities, therefore, the State is under an obligation to provide the benefits assured therein which are referable to statutory provisions., The submission of learned counsel for the victim's family was that after the unfortunate incident which took place on 14 September 2020 followed by the illegal cremation in the night of 29/30 September 2020, an atmosphere of fear and insecurity has gripped the family members who are nine in number including three girls aged 7, 3 and 1 year respectively. The demography of Village Boolgadhi is such that there were only four Scheduled Caste families in the village, the rest being upper castes and after the above incident, two of the four families have migrated elsewhere leaving only two families of which one is the victim's family. The atmosphere is very hostile. The victim's family has been subjected to economic and social boycott. Round‑the‑clock security by the Central Reserve Police Force personnel has also thrown the family's life haywire as movement has become restricted. The father is no longer employed after the incident. Likewise, the elder brother who was employed in Ghaziabad is also unemployed. The younger brother is also unemployed. The family has agricultural holding of only four bighas of land and a house in the village comprising two rooms, verandah etc. Considering the atmosphere prevailing in the village, in spite of the Central Reserve Police Force personnel being posted therein, it is not possible for the family to lead a normal life and therefore they need to be relocated or rehabilitated elsewhere so that they may feel socially and economically secure., Her contention was that the family has relatives in Noida and Delhi, therefore, if they are relocated or rehabilitated in Noida it would give them a proper atmosphere for living a normal life far away from the place of incident. The entire family wants to live together and they would be secure in such an environment at Noida having the support of their peer group and relatives. The accused belong to the upper caste which is the dominant caste in Village Boolgadhi, therefore, normal life for the victim's family which belongs to the Scheduled Caste is not possible. The offer of Sri Raju, learned Senior Counsel appearing for the State of Uttar Pradesh, albeit after some persuasion by the Allahabad High Court, for providing a house constructed by the District Urban Development Agency within the municipal limits of Hathras was turned down by the victim's family on the ground that living at Hathras is not an option considering the aforesaid scenario. The contention was that the State could not prevent the crime being committed and on account of the negligence of the said authorities, life and liberty of the victim's family has been compromised. The family feels highly insecure, socially, economically, mentally and psychologically. Children are unable to go to school as the mother is afraid to send them for studies in the vicinity of the village or even nearby., Learned counsel also referred to a Mahapanchayat having been called by Karni Sena, an organization of upper caste people in favour of the accused which has further aggravated the situation and has added to the fear of the victim's family which belongs to the downtrodden class., Learned counsel also referred to another incident involving death of Vinay Tiwari and Manish Gupta and that their spouses were given employment in a public undertaking, that too Class II job, apart from Rs 40 lakh given to them, in comparison to which, the victim's family had only been provided Rs 25 lakh, moreover, no employment has been provided in spite of an assurance having been given. She contended that the said families were well‑off economically and socially yet they were given said benefits whereas a downtrodden family in spite of there being statutory backing under the Act 1989 and the Rules 1995 made thereunder, has not been extended the benefits prescribed in law and as were assured by the Government itself on 30 September 2020. She alleges discrimination and arbitrariness in this regard which according to her was painful for the family and displayed an unnecessary adversarial attitude on the part of the State against the poorest of the poor., Sri S.V. Raju, learned Senior Counsel assisted by Mr. Pranjal Krishna, learned counsel appearing for the State of Uttar Pradesh submitted that the benefits prescribed under Item 46 of the Schedule Annexure‑I to the Rules 1995 are not mandatory as is evident from the use of the word ‘may’ in Column 3 of Item 46. It is a relief additional to the other reliefs mentioned at Items No. 1 to 45. He raised important issues pertaining to the scope of Item 46 of the said Schedule Annexure‑I to the Rules 1995 and the meaning and purport of the term ‘family’, ‘atrocity’ and use of the word ‘may’ therein in the light of the Act 1989 and Rules 1995 in support of his argument. According to him employment referred in Item 46 of Schedule Annexure‑I to the Rules 1995 was only with respect to ‘dependents’ of the victim or widow which the family members were not. The word ‘and’ used in Clause (i) of Column 3 of Item 46 is conjunctive, not disjunctive. He submitted that only needy persons could be given the additional relief envisaged in Item 46 and it cannot be claimed as a matter of right. It is not supposed to be a bounty. He also raised an issue as to whether the brothers and sisters of the victim would fall within the meaning of legal heir under the provisions of the Hindu Succession Act, 1956 and whether such a wide definition of ‘family’ should be given so as to include them also in the said definition for the purpose of Item 46. What if the married brother does not look after the family after being provided employment. The Act 1989 and the Rules 1995 framed thereunder do not speak of a Government job. He also submitted that negative parity/equality cannot be claimed by the victim's family with Vinay Tiwari and Manish Gupta’s family., The assurances recorded in the minutes dated 30 September 2020 are contrary to the provisions of Rules 1995 and are not enforceable in a Court of law. He submitted that provision of such employment to the victim's family would not only violate the statutory provisions but would also be completely violative of public policy and hit by Article 14 and Article 16 of the Constitution of India. He also submitted that an amount of Rs 25 lakh given to the victim's family was much more than what was envisaged in Schedule Annexure‑I to the Rules 1995 at Items No. 1 to 45, therefore, the State Government had been more than fair to the victim's family., The victim's family did not have any indefeasible and enforceable right with regard to employment. However, in the same vein, he suggested that the State Government could arrange private employment to one of the members of the family, however, on surprise being expressed by the Allahabad High Court as to how the State will arrange private employment, the learned counsel at the fag end of the hearing on this issue submitted that after conclusion of trial the State is agreeable to consider the grant of employment to one member of the family. This, of course, he submitted was without prejudice to the legal issues which he had raised as regards the provision of the Act 1989 and the Rules 1995 and Schedule Annexure‑I thereto., He also submitted that it is not as if the father and brother who were in employment prior to the incident had been removed from employment but a case where they had voluntarily stopped going for the job. The children could be provided best education in a nearby school. As regards the house, as already recorded, he submitted that a house built by the District Urban Development Agency within the municipal limits of District Hathras can also be provided. However, he was against the provision of a house, etc. to the victim's family at Noida or outside Hathras. He also submitted that the house of the victim's family was a large one having three rooms, verandah etc. and the same was not being shared by the uncle as alleged by the counsel for the victim's family., He also submitted that the said reliefs could only be given after atrocities mentioned therein had been proved in trial meaning thereby such benefits could only be given after conclusion of trial and not before., Furthermore, he submitted that these proceedings, being in public interest, cannot be used by the victim's family for redressal of their individual grievance. Complicated factual issues are involved which cannot be seen under Article 226 of the Constitution of India, especially as it would entail an inquiry regarding the quantum of relief, if any, to be given., In addition to it, he submitted that the jurisdiction, if at all in this regard, is with the Special Court under Section 15A(6) of the Act 1989, therefore, this Court should not consider this issue., In support of his contention, Sri Raju, learned Senior Counsel relied upon the following decisions: Ram Pravesh Singh versus State of Bihar (2006) 8 SCC; State of Bihar versus Sachindra Narayan (2019) 3 SCC 803; State of Haryana versus Mahabir Vegetable Oils (P) Ltd. (2011) SCC OnLine SC 374; Excise Commissioner versus Isaac Peter (1994) 4 SCC 104; Bannari Amman Sugars Ltd. versus CTO (2005) 1 SCC 625; South‑Eastern Coalfields Ltd. versus Prem Kumar Sharma; V. Sivamurthy versus State of Andhra Pradesh (2008) 13 SCC 730; SBI versus Jaspal Kaur (2007) 9 SCC 571; State of Jharkhand versus Shiv Karampal Sahu (2009) 11; Auditor General of India versus G. Ananta Rajeswara Rao., Learned Amicus, Sri J.N. Mathur, learned Senior Counsel assisted by Mr. Abhinav Bhattacharya invited the attention of the Allahabad High Court to the wordings and language used in various provisions of the Act 1989 and the Rules 1995. He submitted that the term ‘victim’ includes the dependent and non‑dependent. The submission was that the victim's family is covered by the provision contained in Item 46 of the Schedule Annexure‑I to the Rules 1995 and the grant of employment etc. is not restricted only to the dependents. There is no reason to give a restrictive meaning to the term ‘family’ used therein. He submitted that the assurance given on 30 September 2020 was within the purview of the Act 1989 and the Rules made thereunder. The assurance or letter of the District Magistrate etc. is enforceable in law. It is the hardest of the cases, therefore, whatever benefit or relief can be given, should be given by the Court. Alternative remedy is not an absolute bar in this regard. He further submitted that these proceedings are suo moto proceedings under Article 226 of the Constitution of India in public interest considering the fact that the victim and her family belong to downtrodden Scheduled Castes and are the poorest of the poor. It is not a case where the proceedings are transcribed and prescribed on written pleadings and reliefs filed by the petitioner. It is also not the case that the relief being sought by the victim's family is alien to the subject matter in issue. In fact, it is an offshoot of an incident which led to cognizance being taken by this Court suo moto and, as there is statutory backing to the said reliefs, therefore, it can very well be considered in these very proceedings and there is no reason as to why the victim's family which already does not have sufficient means to sustain itself should be made to initiate separate proceedings in a Court of law, especially considering their social, educational and economic status. This issue should not be treated as an adversarial issue by the State., According to him, the additional reliefs envisaged at Item 46 of the Schedule are for victims of atrocities as mentioned in column. The family members are victims within the meaning of Section 2(ec) of the Act 1989, therefore, they are entitled to employment and also for relocation. The word ‘and’ used in Clause (i) of Column 3 of Item 46 if read as conjunctive it will defeat the intent of the provision. As regards Schedule Annexure‑I, he submitted that it refers to the minimum amount payable under various heads from Items No. 1 to 45, therefore, Rs 25 lakh given by the State Government is not more than what is envisaged in the said provision and it was permissible for the State Government to give the said amount and even more and the submission of Sri Raju to the contrary is incorrect., In support of his contention Sri Mathur relies upon the following decisions: Indore Development Authority (LAPSE‑5J.) versus Manoharlal (2020) 8 SCC 129; Ishwar Singh versus State of Uttar Pradesh (AIR 1968 SC 1450); Samee Khan versus Bindu Khan (1998) 7 SCC 59; Mobilox Innovations (P) Ltd. versus Kirusa Software (P) Ltd.; Gujarat Urja Vikas Nigam Ltd. versus Essar Power Ltd.; Joint Director of Mines Safety versus Tandur and Nayandgi Stone Quarries (P) Ltd. (1997) 3 SCC 208; Maharshi Mahesh Yogi Vedic Vishwavidyalaya versus State of Madhya Pradesh and Others (2013) 15 SCC 677; Sanjay Dutt versus State (1994) 5 SCC 410; Jindal Stainless Ltd. and Others versus State of Haryana and Others (2017) 12 SCC 1; Sukhnandan versus Suraj Bali and Others (AIR 1541 All 119); The Food Inspector, Trichur Municipality, Trichur versus O.D. Paul and Others (AIR 1965 Ker 96); Reg. versus Oakes (1959) 2 QB 350., Before delving into the merits of the issues involved we deem it proper to decide the preliminary objections raised on behalf of the State., As regards the objection of Sri Raju that these proceedings being in public interest, therefore, the victim's family cannot raise individual grievances herein for seeking employment etc. under the Act 1989 and that they should raise these grievances separately, the same is not acceptable for the reason the victim's family belongs to downtrodden class of society. They belong to the Scheduled Caste. The very reason this Court took cognizance of the matter involving alleged rape, murder and thereafter cremation of the victim in the middle of the night in the circumstances already dealt with in the earlier orders of this Court was on account of the fact that the victim and her family belong to downtrodden class of the society i.e. they were from the socially and economically weaker section of the society, poorest of the poor, who have been given certain protections by the Constitution and also statutorily by the Act 1989 and such persons are often not in a position to raise their grievance or assert their rights for various reasons including their unawareness and their social, educational and economic status. In this case Ms. Seema Kushwaha has come forward to represent them pro bono as was specifically stated by her on a query being put by the Court. We have also appointed an Amicus for our assistance and also to protect the interest of the victim's family as per law. Moreover, it is not as if the relief being claimed herein during pendency of these proceedings and the trial pertaining to the alleged criminal offence before the Court below is alien to the subject matter in issue involved herein. It is an offshoot of the crime committed. In fact, the Act 1989 has been promulgated by the Parliament of India to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victim of such persons and for matters connected therewith and incidental thereto. The relief of employment and rehabilitation, etc. being claimed by the victim's family are in terms of the Act 1989 and the Rules 1995. These reliefs are consequential to the incident which took place involving the alleged rape and murder of the victim followed by her cremation in the middle of the night, therefore, it is not a matter unconnected with the proceedings which are pending before us. We are also monitoring the trial being conducted in this regard by the Court below. Considering the subject matter it cannot be said that this is purely an individual grievance as the relief sought is one which is claimed by the victim's family as being permissible and which the State is obliged to provide to them under the Act 1989 and the Rules made thereunder. They are seeking constitutional and statutory protections and reliefs as perceived by them, therefore, we do not see any reason as to why a downtrodden family which does not have any member in employment, as of now, a fact which is not in dispute, and which has lost a member and is in distress, should be made to run from pillar to post or for that matter should be compelled to initiate separate legal proceedings involving unnecessary expenses and the mental stress which goes with such litigation. We do not see as to why in these very proceedings we should not consider such relief as claimed, whether they are permissible under the Constitution and the Act 1989 and the Rules made thereunder, etc. Rights of the downtrodden class especially Scheduled Castes who are victims under the Act 1989, can and should be enforced and protected in these proceedings., It is also necessary to point out that these proceedings have not been drawn on a petition filed with specific pleadings, grounds and reliefs; rather suo moto cognizance has been taken by this Court as already referred in our earlier orders in public interest, considering the social, educational and economic status of the victim and her family and the incident, therefore, this is not a matter which is circumscribed by pleadings and reliefs claimed in a written and drafted petition, which is not to say that we can consider any or every issue unrelated to the incident. In fact, as already stated hereinabove, this is an issue which is an offshoot of the issues already involved in the proceedings. We accordingly reject the contention of Sri Raju to the contrary., As regards other objection of Sri Raju that this issue should be raised by the victim's family before the Special Court which is trying the criminal offence relating to the victim, we are of the opinion that no doubt as per Section 15A(6) of the Act 1989, Special Court or the Exclusive Special Court trying a case under this Act is required to provide to victim, his dependent, informant or witnesses, complete protection to secure the ends of justice; the travelling and maintenance expenses during investigation, inquiry and trial; the socio‑economic rehabilitation during investigation, inquiry and trial; and relocation, but we cannot be unmindful of the fact that considering the importance of the issues, cognizance of which has been taken by this Court and suo moto proceedings have been registered, we have already granted protection to the victim's family instead of making them run from pillar to post and even the Supreme Court of India has vide its order dated 27 October 2020 observed/directed that we may monitor the criminal trial also., Moreover, considering the objections which have been raised by Sri Raju some of which are of a legal nature touching upon the object and scope of the Act 1989, especially the scope of various provisions contained therein such as Section 15A and Item 46 of the Schedule Annexure‑I to the Rules 1995 their purport and meaning, we are of the opinion that these legal issues involve interpretation of statutory provisions, therefore, this Court under Article 226 of the Constitution of India is best suited to consider these aspects of the matter, and which the Special Court may not be suited for. Sri Raju has touched upon various aspects such as the meaning to be given to the term ‘family’ used in Item 46 of Schedule Annexure‑I to the Rules 1995, the meaning of the term ‘may’, ‘atrocities’ used therein, the meaning of the term ‘dependent’ contained in Section 2(bb), meaning of the word ‘victim’ in Section 2(ec), scope of Item 46 Schedule Annexure‑I to the Rules 1995, etc. to contend that, in fact, the brothers and sisters would not fall within the definition of victim nor within the meaning of the term family and they are not entitled to the benefits envisaged in Item 46 of the Schedule Annexure‑I referred hereinabove., Furthermore, he has contended that the said provision is not enforceable in law in the sense that it is not mandatory, therefore, the meaning, purport and scope of all these provisions have to be considered by this Court, and the Special Court, in our opinion, would not be in a position to do so, therefore, it is our constitutional obligation to consider and, if necessary, interpret the provisions referred hereinabove. Moreover, the relief claimed herein by the victim's family is based on an assurance dated 30 September 2020 which has been reduced in writing and signed by various authorities including public authorities and in this context also Sri Raju contends that the said assurance has no force in law and, in fact, it is contrary to the Act 1989 and the Rules 1995 and is not enforceable, therefore, this is an aspect which has to be considered by the High Court and the Special Court would not be suited to do so considering the magnitude and importance of the issue involved. How far we can interfere in the matter is a separate issue which we will consider hereinafter. Subject to this, we reject this contention of Sri Raju., The next objection raised by Sri Raju was that the plea raised herein involves complicated and disputed questions of fact which may involve a roving inquiry, especially as to the extent of relief to be given to the victim's family, therefore, the High Court under Article 226 of the Constitution of India is not suited for such an exercise and should desist from considering these pleas. From the records, there are certain undisputed facts which are as under: (i) The Central Bureau of Investigation has filed a charge‑sheet against the accused under Sections 302, 376, 376A, 376D IPC and under Section 3(2)(v) of the Act 1989 before the Trial Court relating to the incident of rape etc. of the victim. (ii) As on date none of the family members are employed. In fact, they have not been in employment for quite some time after the incident. (iii) They have only about four bighas of land and a house in their village which according to them is jointly owned by victim's family and the uncles, though as per the State the uncles are not residing therein. (iv) There are nine members in the victim's family three of whom are girl children aged about 7, 3 and 1 year and the child who is seven years old is unable to go to school. (v) There is an assurance on record dated 30 September 2020 under which certain benefits and facilities were to be provided to the victim's family consequent to a meeting held between them and the de facto Head of the State. The minutes of the meeting and the assurances have been recorded in a document on record and signed by various authorities including the District Magistrate etc. Whether this is enforceable or not is another matter which shall be considered hereinafter, but the fact that there is a document which had been prepared, is not in dispute. (vi) It is also a fact that under the provisions of the Act 1989 and the Rules 1995 certain reliefs and rehabilitation including employment measures have been envisaged for being provided to the victim, his or her dependent, informant, witnesses and family members., In view of the aforesaid, as of now, we do not see any such intricate and complex factual issues involved in considering the plea of the victim's family for employment etc., however, if at any stage, we do find that complicated factual questions are involved, then we can certainly consider this aspect of the matter as to how far we are required to exercise our jurisdiction under Article 226 of the Constitution of India, but we do not find any reason to throw out the plea at the threshold without any consideration of the issues involved, especially in view of the legal issues involved herein as already mentioned above., Before we proceed any further to consider the legal issues raised by Sri Raju, learned Senior counsel for the State, it will be apposite to take a glance at the scheme and relevant provisions of the Act 1989 and the Rules 1995., As per the statement of Objects and Reasons of the Act 1989 noticing an increase in the disturbing trend of commission of certain atrocities including rape etc. of a woman belonging to the Scheduled Castes and Scheduled Tribes, as the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code were found to be inadequate to check these crimes a special legislation to check and deter crimes/atrocities against them committed by non‑Scheduled Castes and non‑Scheduled Tribes was found to be necessary. It is also mentioned that despite various measures to improve social‑economic conditions of the Scheduled Castes and Scheduled Tribes, they remain vulnerable. They were denied number of civil rights and were subjected to various offences, indignities, humiliations and harassment and increase in the disturbance. It was also proposed to enjoin upon the States and Union Territories to take specific preventive and punitive measures to protect the Scheduled Castes and Scheduled Tribes from being victimized and where atrocities were committed, to provide adequate relief and assistance to rehabilitate them. The Act 1989 seeks to achieve the above objects.
id_1232	1	It is an Act to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto., The term 'atrocity', which had not been defined earlier, has been defined in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 in Section 2(a) to mean an offence punishable under Section 3. Section 3 mentions punishment for offences of atrocities. The offences involved in this case are covered within the meaning of the term 'atrocity' as defined in the Act, 1989. Trial in respect thereof is in progress before the Special Court at Hathras., Section 8 refers to certain presumptions as to offences, as mentioned therein., Chapter IV-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 deals with the Rights of Victims and Witnesses, which reads as follows:, It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation, coercion, inducement, violence, or threats of violence. A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victim's age, gender, educational disadvantage or poverty. A victim or his dependent shall have the right to reasonable, accurate, and timely notice of any court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act. A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present. A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings and may file written submission on conviction, acquittal or sentencing. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Special Court or the Exclusive Special Court trying a case under this Act shall provide to a victim, his dependent, informant or witnesses: (a) complete protection to secure the ends of justice; (b) travelling and maintenance expenses during investigation, inquiry and trial; (c) socio‑economic rehabilitation during investigation, inquiry and trial; and (d) relocation. The State shall inform the concerned Special Court or the Exclusive Special Court about the protection provided to any victim or his dependent, informant or witnesses and such Court shall periodically review the protection being offered and pass appropriate orders. Without prejudice to the generality of the provisions of sub‑section (6), the concerned Special Court or the Exclusive Special Court may, on an application made by a victim or his dependent, informant or witness in any proceedings before it or by the Special Public Prosecutor in relation to such victim, informant or witness or on its own motion, take such measures including: (a) concealing the names and addresses of the witnesses in its orders or judgments or in any records of the case accessible to the public; (b) issuing directions for non‑disclosure of the identity and addresses of the witnesses; (c) taking immediate action in respect of any complaint relating to harassment of a victim, informant or witness and, if necessary, passing appropriate orders for protection on the same day. The inquiry or investigation into the complaint received under clause (c) shall be tried separately from the main case by such Court and concluded within two months from the date of receipt of the complaint. Where the complaint under clause (c) is against any public servant, the Court shall restrain such public servant from interfering with the victim, informant or witness, except with the permission of the Court. It shall be the duty of the Investigating Officer and the Station House Officer to record the complaint of victim, informant or witnesses against any kind of intimidation, coercion, inducement, violence or threats of violence, whether given orally or in writing, and a photocopy of the First Information Report shall be immediately given to them free of cost. All proceedings relating to offences under this Act shall be video recorded. It shall be the duty of the concerned State to specify an appropriate scheme to ensure implementation of the following rights and entitlements of victims and witnesses in accessing justice: (a) to provide a copy of the recorded First Information Report at free of cost; (b) to provide immediate relief in cash or in kind to atrocity victims or their dependents; (c) to provide necessary protection to the atrocity victims or their dependents and witnesses; (d) to provide relief in respect of death, injury or damage to property; (e) to arrange food, water, clothing, shelter, medical aid, transport facilities or daily allowances to victims; (f) to provide maintenance expenses to the atrocity victims and their dependents; (g) to provide information about the rights of atrocity victims at the time of making complaints and registering the First Information Report; (h) to provide protection to atrocity victims or their dependents and witnesses from intimidation and harassment; (i) to provide information to atrocity victims or their dependents or associated organisations or individuals on the status of investigation and charge sheet and to provide a copy of the charge sheet at free of cost; (j) to take necessary precautions at the time of medical examination; (k) to provide information to atrocity victims or their dependents or associated organisations or individuals regarding the relief amount; (l) to provide information to atrocity victims or their dependents or associated organisations or individuals in advance about the dates and place of investigation and trial; (m) to give adequate briefing on the case and preparation for trial to atrocity victims or their dependents or associated organisations or individuals and to provide legal aid for the said purpose; (n) to execute the rights of atrocity victims or their dependents or associated organisations or individuals at every stage of the proceedings under this Act and to provide the necessary assistance for the execution of the rights. It shall be the right of the atrocity victims or their dependents to take assistance from non‑governmental organisations, social workers or advocates., Thus, apart from the constitutional obligation in this regard, statutory duties have also been imposed upon the State and its authorities to protect the rights of the members of Scheduled Castes and Scheduled Tribes., The Act, 1989 not only encompasses the trial of non‑Scheduled Caste/Scheduled Tribe accused for atrocities against Scheduled Castes/Scheduled Tribes but also takes care of relief and rehabilitation of the victims., Sub‑section 6 of Section 15‑A provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Special Court or the Exclusive Special Court trying a case under this Act shall provide to a victim, his dependent, informant or witnesses – (a) complete protection to secure the ends of justice; (b) travelling and maintenance expenses during investigation, inquiry and trial; (c) socio‑economic rehabilitation during investigation, inquiry and trial; and (d) relocation. Thus, four categories of persons are eligible/entitled to the aforesaid benefits which can be provided by the Special Court or the Exclusive Special Court which is trying a case under the said Act. These four categories are victim, dependent, informant and witnesses., The term 'victim' has been defined in Section 2(ec) to mean any individual who falls within the definition of the Scheduled Castes and Scheduled Tribes under clause (c) of subsection (1) of Section 2, and who has suffered or experienced physical, mental, psychological, emotional or monetary harm or harm to his property as a result of the commission of any offence under this Act and includes his relatives, legal guardian and legal heirs. The term 'relatives' has not been defined in the Act, 1989., Sri Raju, learned Senior Counsel appearing for the State, contended that the family members of the victim i.e., the brothers and sisters do not fall within the meaning of the terms 'legal guardian' and 'legal heirs'. He further submitted that the word 'relatives' herein would also not include these relations. He argued that if the married brother does not take care of the family... We are of the opinion that the word 'legal guardian' used in Section 2(ec) would cover guardians declared as such by any Act and also guardians appointed by Courts in the case of minors or lunatics. The term 'legal heirs' would obviously get its meaning from the law governing inheritance. However, the term 'relatives' used therein, though not defined, has been used to give a wide meaning to the word 'victim' so as to advance and achieve the object of the Act, which is to provide relief and rehabilitation to the victims which includes the family members of the deceased victim. A narrow view as to the meaning of the term 'relatives' would defeat the purpose of the Act. The term 'relative' has not been defined in the Act, 1989; therefore, it has to be understood as is commonly understood. Ordinarily it includes father, mother, husband or wife, son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an individual. The word 'relative' has been defined in P. Ramanatha Aiyar's Advanced Law Lexicon, 3rd Edition Reprint 2007, at Page 4036 as under: \Relative\ includes any person related by blood, marriage or adoption. \Relative\ means a husband, wife, ancestor, lineal descendant, brother or sister. \Relative\ means in relation to the deceased, (a) the wife or husband of the deceased, (b) the father, mother, children, uncles and aunts of the deceased, and (c) any issue of any person falling within either of the preceding sub‑clauses and the other party to a marriage with any such person or issue. A person shall be deemed to be a RELATIVE of another if, and only if, (a) they are members of a Hindu undivided family; or (b) they are husband and wife; or (c) the one is related to the other in the manner indicated in Schedule I‑A. \RELATIVE\ in relation to an individual, means the husband, wife, brother or sister or any lineal ascendant or descendant of that individual. \RELATIVE\ in relation to an individual means (a) the mother, father, husband or wife of the individual, or (b) a son, daughter, brother, sister, nephew or niece of the individual, or (c) a grandson or grand‑daughter of the individual, or (d) the spouse of any person referred to in sub‑clause (b). (1) spouse of the person; (2) brother or sister of the person; (3) brother or sister of the spouse of the person; (4) any lineal ascendant or descendant of the person; (5) any lineal ascendant or descendant of the spouse of the person; (6) spouse of a person referred to in sub‑clause (2), sub‑clause (3), sub‑clause (4) or sub‑clause (5); (7) any lineal descendant of a person referred to in sub‑clause (2) or sub‑clause (3). \Relative\ is defined in Black's Law Dictionary, Eighth Edition as: \Relative, n. A person connected with another by blood or affinity; a person who is kin with another. Also termed relation; kinsman.\, Considering the meaning as noticed above of the term relatives and applying it to the scheme of the Act at hand, it would include the brothers and sisters apart from the father and mother and we see no reason why we should hold that the relatives would not include these relations as there is nothing in the Act, 1989 to exclude them from the said term. In facts where the brothers and sisters had severed their relationship with the victim and other family members and were living separately without any subsisting emotional or family relationship, the Court may decline relief to them, but this cannot be the basis for holding as a matter of general proposition of law that brothers and sisters per se, even if they are married, would not fall within the meaning of the term 'relatives'. Applying such an understanding universally and interpreting the provisions of Section 2(ec) of the Act, 1989 accordingly would be against the spirit of the Act and would defeat its objective. The legislature has consciously used the words 'relatives', 'legal guardians' and 'legal heirs' so as to provide maximum assistance and relief to the victims who suffer atrocities which includes family members. There is no reason to give a restrictive meaning to the term 'relatives' so as to oust brothers and sisters from its purview. The father, brothers, sisters in this case are covered within the meaning of victim defined in Section 2(ec) as the deceased victim was unmarried, especially as they are living together with ties intact. The family members of the victim have been paid Rs. 25 lakh as monetary relief immediately after the incident which took place on 23.09.2020; therefore, obviously even as per the State Authorities, the family members in this case qualify as victims but now a different stand is being taken before us., The word 'witnesses' will have the meaning as per Section 2(ed) of the Act, 1989 wherein the word 'witness' has been defined to mean any person who is acquainted with the facts and circumstances, or is in possession of any information or has knowledge necessary for the purpose of investigation, inquiry or trial of any crime involving an offence under this Act, and who is or may be required to give information or make a statement or produce any document during investigation, inquiry or trial of such case and includes a victim of such offence. The family members herein the father, mother, brothers and sisters are witnesses in terms of the aforesaid provision in the criminal trial which is pending before the Special Court; therefore, they fall within the meaning of the said term in Section 2(ed)., The term 'dependent' is defined in Section 2(bb) to mean the spouse, children, parents, brother and sister of the victim, who are dependent wholly or mainly on such victim for his support and maintenance. Thus, if a person, even though he or she may be the spouse, children, parents, brother or sister of the victim, was not dependent wholly or mainly on such victim for their support and maintenance, then they would not be covered in the aforesaid definition of dependent., The term 'informant' had not been defined in the Act, 1989; therefore, it will have to be understood as per the meaning assigned to it under the Code of Criminal Procedure in view of Section 2(f) of the Act, 1989. In the Code of Criminal Procedure, the word 'informant' means the person who gives information relating to the commission of a cognizable offence as is mentioned in Section 154 of the Criminal Procedure Code., In exercise of power under Section 23(1) of the Act, 1989 the Centre has formulated the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995. The word 'dependent' as defined in Rule 2(b) of the said Rules, 1995 has the same meaning as per the definition contained in the Act, 1989. The family members of the victim, who was a girl child, were obviously not dependents wholly or mainly on her; therefore, they do not qualify within the meaning of the said term, but they certainly qualify as 'victims' within the meaning of Section 2(ec) as already discussed and also as 'witnesses' under Section 2(ed)., In the Rules, 1995, Rule 12 is relevant which reads as follows: 'Measures to be taken by the District Administration. (1) The District Magistrate and the Superintendent of Police shall visit the place or area where the atrocity has been committed to assess the loss of life and damage to the property and draw a list of victims, their family members and dependents entitled for relief. (2) Superintendent of Police shall ensure that the First Information Report is registered in the book of the concerned police station and effective measure for apprehending the accused are taken. (3) The Superintendent of Police, after spot inspection, shall immediately appoint an investigation officer and deploy such police force in the area and take such other preventive measures as he may deem proper and necessary. (4) The District Magistrate or the Sub‑Divisional Magistrate or any other Executive Magistrate shall make necessary administrative and other arrangements and provide relief in cash or in kind or both within seven days to the victims of atrocity, their family members and dependents according to the scale as provided in Annexure‑I read with Annexure‑II of the Schedule annexed to these rules and such immediate relief shall also include food, water, clothing, shelter, medical aid, transport facilities and other essential items. (4‑A) For immediate withdrawal of money from the treasury so as to timely provide the relief amount as specified in sub‑rule (4), the concerned State Government or Union Territory Administration may provide necessary authorisation and powers to the District Magistrate. (4‑B) The Special Court or the Exclusive Special Court may also order socio‑economic rehabilitation during investigation, inquiry and trial, as provided in clause (c) of sub‑section (6) of Section 15‑A of the Act. (5) The relief provided to the victim of the atrocity or his/her dependent under sub‑rule (4) in respect of death, injury, rape, gang rape, unnatural offences, voluntarily causing grievous hurt by use of acid, voluntarily throwing or attempting to throw acid etc., or damage to property shall be in addition to any other right to claim compensation in respect thereof under any other law for the time being in force. (6) The relief and rehabilitation facilities mentioned in sub‑rule (4) above shall be provided by the District Magistrate or the Sub‑Divisional Magistrate or any other Executive Magistrate in accordance with the scales provided in the Schedule annexed to these rules. (7) A report of the relief and rehabilitation facilities provided to the victims shall also be forwarded to the Special Court or Exclusive Special Court by the District Magistrate or the Sub‑Divisional Magistrate or the Executive Magistrate or Superintendent of Police. In case the Special Court or Exclusive Special Court is satisfied that the payment of relief was not made to the victim or his/her dependent in time or the amount of relief or compensation was not sufficient or only a part of payment of relief or compensation was made, it may order the making in full or part the payment of relief or any other kind of assistance.', Rule 12 of the Rules, 1995 has to be read conjointly with Section 15‑A of the Act, 1989. Sub‑rule (1) of Rule 12 and Sub‑rule (4) of Rule 12 enjoin upon the District Magistrate or the Sub‑Divisional Magistrate or any other Executive Magistrate to make necessary administrative and other arrangements and provide relief in cash or in kind or both within seven days to the victims of atrocity, their family members and dependents according to the scale as provided in Annexure‑I read with Annexure‑II of the Schedule annexed to these rules and such immediate relief shall also include food, water, clothing, shelter, medical aid, transport facilities and other essential items. Thus, this Rule is in furtherance of the object of the Act to provide relief and rehabilitation to the victim of an atrocity under the Act, 1989., In this Rule the words 'victim of atrocity', 'family members' and 'dependents' have been used for the purpose of provision of relief as per Annexure‑I read with Annexure‑II. The family members of the victim in this case are also 'victims of atrocity' as already discussed. They are, however, not dependents of the victim., Sub‑rule (4‑B) of Rule 12 provides that the Special Court or the Exclusive Special Court may also order socio‑economic rehabilitation during investigation, inquiry and trial, as has been provided in clause (c) of sub‑section (6) of Section 15‑A of the Act. The words 'socio‑economic rehabilitation' have not been defined in the Act, 1989 or the Rules, 1995. Social rehabilitation would mean social integration of the victims in society, social security and restoration of dignified status in society. Economic rehabilitation would imply provision for economic security, availability of adequate means to sustenance for a dignified life., Sub‑rule (6) of Rule 12 provides that the relief and rehabilitation facilities mentioned in sub‑rule (4) above shall be provided by the District Magistrate or the Sub‑Divisional Magistrate or any other Executive Magistrate in accordance with the scales provided in the Schedule annexed to these Rules. Sub‑rule (7) enjoins upon the District Magistrate or the Sub‑Divisional Magistrate or the Executive Magistrate or Superintendent of Police to forward a report of the relief and rehabilitation facilities provided to the victims to the Special Court or Exclusive Special Court., The State has not brought on record any such report which may have been forwarded to the Special Court in this case; therefore, the inference is that no such report has been forwarded., Furthermore, Rule 15 of the Rules, 1995 reads as follows: 'Contingency Plan by the State Government. (1) The State Government shall frame and implement a plan to effectively implement the provisions of the Act and notify the same in the Official Gazette of the State Government. It should specify the role and responsibility of various departments and their officers at different levels, the role and responsibility of Rural/Urban Local Bodies and Non‑Government Organizations. Inter alia this plan shall contain a package of relief measures including the following: (a) scheme to provide immediate relief in cash or in kind or both; (aa) an appropriate scheme for the rights and entitlements of victims and witnesses in accessing justice, as specified in sub‑section (11) of Section 15‑A of Chapter IV‑A of the Act; (b) allotment of agricultural land and house sites; (c) the rehabilitation packages; (d) scheme for employment in Government or Government undertaking to the dependent or one of the family members of the victim; (e) pension scheme for widows, dependent children of the deceased, handicapped or old age victims of atrocity; (f) mandatory compensation for the victims; (g) scheme for strengthening the socioeconomic condition of the victim; (h) provisions for providing brick/stone masonry house to the victims; (i) such other elements as health care, supply of essential commodities, electrification, adequate drinking water facility, rural cremation ground and link roads to the Scheduled Castes and the Scheduled Tribes habitats. (2) The State Government shall forward a copy of the contingency plan or a summary thereof and a copy of the scheme, as soon as may be, to the Central Government in the Department of Social Justice and Empowerment, Ministry of Social Justice and Empowerment and to all the District Magistrates, Sub‑Divisional Magistrates, Inspectors‑General of Police and Superintendents of Police.', We may, at this stage, take note of the affidavit dated 28.03.2022 wherein, in response to our orders, it has been stated in paragraph 4 that the Under Secretary of the Department of Social Welfare, Government of Uttar Pradesh has apprised the Home Department, Government of Uttar Pradesh that the proceedings for finalizing the contingency plan envisaged in Rule 15 of the Rules, 1995 are under process. What this means is that in spite of the fact that almost twenty‑eight years have lapsed since formulation of the Rules, 1995, till date the State Government has not prepared the contingency plan as is envisaged in Rule 15. Successive Governments have been sleeping over such an important matter which touches upon the rights of the Scheduled Castes and Scheduled Tribes. There has to be some soul‑searching on the part of all those who were involved in governance ever since 1995 as to what they had been doing for all these years., Most important, the contingency plan envisaged in Rule 15 is required to contain a package of relief measures including inter alia an appropriate scheme for the rights and entitlements of victims and witnesses in accessing justice, as specified in sub‑section (11) of Section 15‑A of Chapter IV‑A of the Act; allotment of agricultural land and house sites; the rehabilitation packages; scheme for employment in Government or Government undertaking to the dependent or one of the family members of the victim. This clause in Rule 15 itself answers the submission of Sri Raju that there is no provision in the Act or the Rules made thereunder for providing Government employment or employment under a Government undertaking. The Act, 1989 envisages provision of employment in Government or Government undertaking. Furthermore, the plan has to include measures relating to mandatory compensation for the victims, scheme for strengthening the socioeconomic condition of the victim etc. As mentioned in the affidavit of the State dated 28.03.2022 no such plan is in existence though it is in process of being framed., We may now refer to Schedule Annexure‑I which is referable to Rule 12(4) of the Rules, 1995 which in turn is referable to the benefits mentioned in sub‑section (6) of Section 15‑A and Section 21(2)(iii) of the Act, 1989 which imposes upon the State to undertake measures for provision of economic and social rehabilitation of the victims of atrocities. We are primarily concerned with the purport and scope of this Schedule. The heading of said Schedule Annexure‑I is – Norms For Relief Amount. Column 2 thereof mentions the name of the offence and Column 3 mentions – 'Minimum amount of relief.' Thus, the amount mentioned therein against the corresponding offence is the 'minimum amount' payable meaning thereby the State Government can pay more than the minimum amount. This is relevant, as the contention of Sri Raju, learned Senior Counsel appearing for the State at one stage was that much more than what had been envisaged with respect to the offences alleged against the victim herein has been paid monetarily to the victim's family. We have no hesitation in saying that what has been paid could be paid under the relevant Items from 1 to 45 and, therefore, it is not as if the State had paid more than what is envisaged in the Act and Rules. The contention is, therefore, misconceived., There is not much of a dispute with regard to the monetary relief provided to the victim under the relevant items mentioned at Serial No. 1 to 45, as may be applicable. The dispute is with regard to the meaning and purport of Item 46 of the said Schedule Annexure‑I. Item 46 reads as follows: 'Additional relief to victims of murder, death, massacre, rape, gang rape, permanent incapacitation and dacoity.'
id_1232	2	In addition to relief amounts paid under the above items, relief may be arranged within three months of the date of atrocity as follows: Basic Pension to the widow or other dependents of deceased persons belonging to a Scheduled Caste or a Scheduled Tribe amounting to five thousand rupees per month, as applicable to a Government servant of the concerned State Government or Union Territory Administration, with admissible dearness allowance and employment to one member of the family of the deceased, and provision of agricultural land, a house, if necessary by outright purchase; Full cost of the education up to graduation level and maintenance of the children of the victims. Children may be admitted to Ashram schools or residential schools, fully funded by the Government; Provision of utensils, rice, wheat, dals, pulses, etc., for a period of three months., The sub‑heading of Item 46 is “Additional relief to victims of murder, death, massacre, rape, gang rape, permanent incapacitation and dacoity”. The reliefs referred to in Item 46 are additional to the reliefs referred to in Items 1 to 45 and are available to “victims”. “Victims” are defined in Section 2(ec). In the context of Item 46, a victim can mean the actual victim in cases of rape, gang rape, incapacitation and dacoity, but in cases of death or massacre it means relatives, legal guardians and legal heirs as mentioned in Section 2(ec). In this case the FIR was lodged under Section 307 of the Indian Penal Code read with Section 3(va) of the Act 1989, and subsequently offences under Section 376‑B and Section 302 of the Indian Penal Code were added; therefore Item 46 is applicable. The additional relief is available to “victim” as mentioned in Column 2. Family members such as mother, father, brothers and sisters fall within the definition of victim under the Act 1989, so the provision of Item 46 is applicable., The difficulty has arisen on account of entries contained in Column 3 of Item 46. Sri Raju, learned Senior Counsel, contended that the word “may” used in Column 3 shows that the provision is not mandatory, is not enforceable in law, and gives discretion to the State Government to provide such additional relief only where the provision applies and where there is a need. He further said that the benefits can only be given to dependents and not to others, and that the victims herein, not being dependents, are not entitled to the benefits. He also argued that such benefits can only be given where there is a need; they cannot be a matter of indefeasible right or a source of enrichment or bounty., On a perusal of the provisions contained in Column 3, we are of the opinion that the word “may” indicates that the benefits would be available only where the provision applies and where there is a need. We agree with Sri Raju to this extent. For illustration, if a victim belonging to a Scheduled Caste is well‑off, for example a Provincial Civil Service or Indian Administrative Service officer who already has other surviving family members in employment and/or owns a house sufficient to meet the needs of the remaining family members, employment need not be provided to one member of the family of the deceased. The Constitution recognises the backwardness of Scheduled Castes and Scheduled Tribes, which requires no further proof. The object of Item 46 is to provide socioeconomic rehabilitation to a victim as defined in Section 2(ec) of an atrocity under the Act 1989 where they are in need of such rehabilitation. The provision must not be implemented to enrich those who are not in need. It cannot be applied in a manner that violates the rights of others, including victims belonging to Scheduled Castes or Scheduled Tribes who are more in need, considering that State resources are limited. The provision is intended to give additional relief where, because of the atrocity, the family has been put in dire straits with inadequate means of sustenance or is shelterless. Cases of relocation are different and require separate consideration., Clause i of Column 3 of Item 46 contains three parts. The first part provides a basic pension to the widow or other dependents of deceased persons belonging to a Scheduled Caste or a Scheduled Tribe and is applicable only to a widow or dependents, not to others. The need of a dependent or a widow is self‑evident. The word “dependent” is defined in Section 2(bb) of the Act 1989. The family members in this case are not dependents of the victim nor widows, as they were neither wholly nor mainly dependent on her for support and maintenance; therefore they are not entitled to the benefit., The second part of Clause i of Column 3 of Item 46 concerns employment to one member of the family of the deceased. Sri Raju argued that the use of the word “and” to join the first and second parts indicates that employment is also to be given only to dependents. We cannot accept this argument because interpreting “and” as conjunctive would lead to absurd results. The provision deliberately uses the phrase “employment to one member of the family of the deceased” rather than “employment to the dependent”, thereby giving a wider scope to ensure sustenance and economic rehabilitation of the family members, even if the dependents are not qualified for employment. The sine qua non is that whichever family member is provided employment must sustain the family; if he fails to do so, he may be deprived of such employment and another family member can be provided the same. Such conditions are provided statutorily in cases of compassionate appointment, for example the Uttar Pradesh Recruitment of Government Servant (Dying‑in‑Harness) Rules, 1975. If family members are already gainfully employed and sufficient to sustain the family, employment cannot be claimed as a matter of right. However, where the family members are unemployed or, because of the atrocity, are unable to gain employment, the provision applies. In the present case the father was employed at Ayush Pharmacy, but after the atrocity, fearing for safety, he is no longer employed. The brother who was employed in Ghaziabad is also unemployed, as is the other unmarried brother., The term “family” is not defined in the Act 1989 or the Rules 1995, so it must be given its ordinary meaning while keeping the object of the provision in mind. Black’s Law Dictionary, Eighth Edition, defines “family” as: (1) a group of persons connected by blood, affinity or law, especially within two or three generations; (2) a group consisting of parents and their children; (3) a group of persons who live together and share a domestic relationship; (4) the immediate family together with collateral relatives who make up a clan; (5) the immediate family together with collateral relatives and close family friends; (6) a person’s parents, spouse, children and siblings; (7) a person’s parents, spouse, children and siblings, as well as those of the spouse, including step‑children and adopted children; (8) for some purposes, a person’s immediate family may also include the spouses of children and siblings; (9) an intact family where both parents live together with their children., In this case employment is being claimed for one of the two brothers, so we are not concerned with other relationships. Both brothers are members of the family of the deceased victim. The elder brother’s marital status makes no difference as he lives with the family. If a family member goes away for employment, he does not cease to be a member of the family unless he has severed all relations. The record shows that all family members, including the brothers, are living together. Family members are covered within the definition of victim in Section 2(ec) as they are relatives of the victim. Words must be given meaning and applied to advance the object of the provisions of the Act and not to defeat it., Clause i in Column 3 contains a third part for providing agricultural land, a house, if necessary by outright purchase. This must be implemented on the basis of need. It cannot be a source of enrichment. If a person already has agricultural land and a house sufficient for sustenance, he cannot claim additional land or a house, as such an interpretation would violate Article 14 of the Constitution of India, unless it is a case of relocation, which involves separate parameters and modalities., According to us, the three parts of Clause i of Column 3 must be read, understood and applied disjunctively. The first part applies to the widow or other dependents who are entitled to basic pension and dearness allowance where the need is self‑evident. The second part applies to one member of the family of the deceased who is to be given employment where required, and not where family members are already employed unless exceptional reasons exist, such as inadequate employment to sustain a large family. The third part concerns provision of agricultural land and a house, if necessary by outright purchase. This third part does not specify a particular beneficiary, but it should be provided where there is a need, for example where the victim or family members are very poor, landless, shelterless, or where the land or house they own is inadequate for sustenance. Giving a conjunctive meaning that all three benefits are available only to widows or dependents would create hardship for family members who are victims but not dependents and who need additional relief due to unemployment or shelterlessness caused by the atrocity., Entries in Column 3 of Item 46 are to be governed by the remarks in Column 2, which state that additional reliefs are meant for “victims”. Column 3 cannot be interpreted to contradict Column 2. Column 3 is applicable to victims as defined in Section 2(ec). Among victims, the first part of Clause i in Column 3 applies to widows or dependents, the second part applies to a victim who is a family member who need not be a dependent, and the third part applies to victims as a whole who are in need of such benefits. Clause ii speaks of “children” of victims. In case of ambiguity, an interpretation that advances the object of the Act should be preferred over one that defeats it., We have held that the additional reliefs mentioned in Item 46 must be considered and given based on need and circumstances of the victims. We agree with Sri Raju that the provision does not create an indefeasible right for persons who are not in need of the benefits. However, where victims are in need, the State is obliged to provide the benefits, and the word “may” in Column 3 cannot be read to give the State discretion to deny benefits merely because it does not wish to extend them., The consideration must be meaningful, keeping in mind the object of the Act, the provisions contained therein and the object of Item 46, with proper application of mind to the relevant aspects, and must be implemented in the interest of the victims. The endeavour is to provide the benefit where it is due and not to withhold it because of discretion. The use of the word “may” in Column 3 of Item 46 does not give the State or its authorities unbridled power to reject a claim to additional reliefs whimsically, for extraneous reasons, or arbitrarily., There is no dispute regarding the applicability of Clause ii and iii of Item 46 in the facts of the present case, so we need not discuss them further. The State shall fulfill the educational needs of the children of the victim accordingly. Provision of food items has been taken care of as informed by the State; if the family has any grievance in this regard, it can be raised before the District Magistrate, who shall do the needful., It is necessary to consider Sri Raju’s argument that additional relief such as employment must be provided after the trial is over and not prior to it. We cannot accept this contention because it would defeat the object of providing relief at the earliest, which is why a period of three months from the date of atrocity is specified. Section 14(3) of the Act 1989 provides that, as far as possible, a trial relating to an offence under this Act shall be completed within two months of filing the charge sheet, but this is qualified by “as far as possible”. Most trials, especially contentious ones such as the present case, take much longer. The trial has remained pending for two years due to the Covid‑19 pandemic, the number of witnesses, and other constraints. If benefits were available only after the trial, the object of Item 46 would be compromised. Appeals are a continuation of the trial; accepting Sri Raju’s suggestion would mean that benefits would be delayed until the appeal is decided by the High Court and then the Supreme Court, which could take years. Even ignoring the appeal, the trial itself could be lengthy, and the widow or other dependents covered by the first part of Column 3 would not receive the basic pension and dearness allowance until the trial concludes, which is contrary to the provision’s objective., Sri Raju also argued that the phrase “within the three months of atrocities” in Column 3 of Item 46 means “atrocity which is proved”. We reject this argument. The term “atrocity” is defined in Section 2(a) as “an offence punishable under Section 3”. The provision does not require the offence to be proved before relief is given; otherwise it would have been stated explicitly., If ultimately the incident of atrocity is found to be false, or if the informant or the victim’s family belonging to Scheduled Castes or Scheduled Tribes are held to be the perpetrators, then all reliefs given under the Act 1989 are liable to be recovered along with any other permissible action. This is necessary to discourage frivolous claims under the Act 1989. The decisions relied upon by Sri Raju have been considered but do not persuade us to adopt a different view., Claim of Employment to One Member of the Family: Now we may consider the facts of this case in the light of the foregoing discussion., The assurance given by the Head of the State and public authorities on 30 September 2020 was signed by the District Magistrate and various district and public authorities. The document is not denied, rather admitted., Sri Raju contended that the assurance is contrary to the law contained in Item 46 of Schedule Annexure‑I read with Rule 12(4) of the Rules 1995. He argued that Clause 1 of Column 3 of Item 46 applies only to widows or dependents, and that the family members of the victim, being neither widows nor dependents, are not entitled to the relief. We have rejected this contention and held that the family members are covered by the definition of victim in Section 2(ec) and therefore are covered by Item 46., The only question to be considered is their need in the context of employment referred to in Clause i of Column 3 of Item 46., In the affidavit dated 6 January 2021 the victim’s family prayed for employment in terms of Item 46 of Schedule Annexure‑I to the Rules 1995 and the assurance given on 30 September 2020 by the Head of the State. The affidavit states that the elder brother of the deceased was working in Sector 64, Noida with MCM Mobile Company prior to the incident but is now residing in the house in Village Boolgadhi. The younger brother was employed at Dr. Lal Pathlab, Vasundhara, Plot No. 20, Sector IAC, Ghaziabad but is also residing at his house in Village Boolgadhi for security reasons. Considering the economic condition of the family and its need for sustenance, the assurance given by the Chief Minister regarding provision of employment to one member of the family should be honoured. An affidavit dated 23 October 2020 filed on behalf of the victim’s family also contains a prayer for providing employment in terms of the assurance given by the Head of the State through video conferencing on 30 September 2020., Another affidavit dated 12 November 2021 filed on behalf of the victim’s family mentions its economic condition and expenses incurred after the commencement of the trial. It raises a grievance about non‑payment of travelling allowance for attending court. It states that none of the male members are employed and the family has no source of income. The compensation provided by the State Government is being utilized for sustenance and meeting the family’s needs. It also notes that, as a consequence of the criminal offence against the girl, none of the family members have been able to obtain employment and the State Government is not fulfilling its promise to provide such employment., It has been stated that while the victim’s family, belonging to the Scheduled Caste, is being treated in this manner, two members of the families of Vinay Tiwari and Manish Gupta were provided Rupees 40 lakh as compensation for the death of Vinay Tiwari and Manish Gupta and were also given Class II jobs in public undertakings, leading to allegations of discrimination and arbitrariness., The affidavit states that the father of the deceased was earlier working as a sweeper in Ayush Pharmacy before the incident but is now unemployed and no nearby organisations are willing to employ him. The two brothers are also unemployed. The promise by the Head of the State to provide government service to one member of the family has not been honoured. Because of security reasons the family is compelled to live within their house, and they survive without employment, which is likely to deteriorate their economic condition in the future. The morale of the family is ebbing. The family comprises nine members, including three girls aged about seven, two and a half, and one year. The family has only 0.402 hectare of agricultural land (Gata No. 146, Village Boolgadhi, Tehsil and District Hathras), which is about one and a half bigha, and therefore does not have adequate means of sustenance and is surviving on the compensation given by the State Government., A report/letter of the District Magistrate, Hathras dated 29 March 2022, together with the report of the Sub‑Divisional Magistrate, Hathras and the Tehsildar, Sadar, District Hathras dated 28 March 2022, states that neither the father nor the two brothers are employed and all of them are living in their house. The family members have stated that, because of the incident leading to these proceedings, the brothers had to return to their village and are staying at their house.
id_1232	3	It has already been noticed earlier that the family wants to live together and feels insecure because of the nature of the incident alleged to have taken place leading to the death of a family member and also because of the demography of the village. The affidavit of the State dated 29 March 2022 clearly mentions in paragraph 4 that one of the brothers was earlier working in Ghaziabad in 2019; however, after the incident he returned to his village and is now staying at his house and is unemployed. The other brother was working as a helper in a mobile company in Noida, but in March 2021, due to Covid‑19, he came back to his village. After the incident, for security reasons the Central Reserve Police Force has been deployed at their home and he is unable to go outside, thus he remains at his house and is unemployed. This affidavit is by the Special Secretary, Home, Government of Uttar Pradesh, Lucknow. It corroborates the version of the victim's family that the male members are unemployed and unable to go outside for security reasons., Furthermore, there is another affidavit on behalf of the State Government along with a letter dated 01 November 2020 written by the Commandant, 239 Battalion, Central Reserve Police Force, Hathras addressed to the District Magistrate, Hathras, wherein details of the members of the victim's family have been given. As against the father, it is mentioned that he is involved in agriculture. The family has only one and a half bigha of land, which is not adequate for a family of nine members with three children. Regarding the two brothers, the letter also states that they are currently living in their house and are unemployed. The rest of the family members are housewives., The State filed another affidavit dated 23 September 2021; again the claim of the victim's family for employment and other benefits has been opposed and the issues raised therein have already been considered with respect to the legal interpretation of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and the Rules 1995, as discussed earlier., On facts, it has not been denied in any of these affidavits that none of the male members are employed as of now., In the affidavit dated 07 December 2021, in response to the query of the Special Court as to the employment provided to the members of the family of the late Vinay Tiwari and the late Manish Gupta, the State annexed documents showing creation of two posts of Officer on Special Duty in Pay Matrix Level 10 Pay Scale 56,100‑177,500/- by His Excellency the Governor of Uttar Pradesh and appointment letters of the wives of the deceased, appointing them to the said post and pay scale. This is relevant because the victim's family asserts that although there is statutory backing for providing employment to a Scheduled Caste/Scheduled Tribe victim and its family members covered under the definition of 'victim', the benefit has not been extended to them despite an assurance given by the Head of the State. Ms. Kushwaha contends that, despite the absence of statutory backing for such appointment to other categories, the same has been extended on a Class‑II post and the compensation paid is also much more than that paid to the victim's family., The contention that the case of Vinay Tiwari and Manish Gupta involves police atrocity while the case of the victim's family must be considered under statutory provisions, whereas there was no statutory provision for appointment of family members of Vinay Tiwari and Manish Gupta, therefore the two cannot be compared and there is no discrimination, appears to have been made only to be rejected. We fail to understand the rationale behind such a stand by the State., In the case of the victim's family, the argument is that the State, which is responsible to protect the life, liberty and property of a citizen, especially those belonging to the Scheduled Caste/Scheduled Tribe, failed to fulfill this obligation and was negligent, leading to the death of the victim and her illegal cremation in the dead of night. The distinctions drawn on the ground that in other cases the police were involved in committing atrocities do not appear reasonable. Both situations involve the contention that the police failed to perform their obligation. Moreover, in the other cases the trial is still pending, so guilt has not been proved., In this case also the Central Bureau of Investigation has filed a charge‑sheet under Sections 302, 376, 376A, 376D of the Indian Penal Code and under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989; therefore, at least the CBI is prima facie satisfied that an offence has been committed, including an offence under the Act. To say that the case at hand is governed by statute and its Rules whereas the provision of employment in the case of Vinay Tiwari and Manish Gupta was not in terms of any statute is hardly a ground for an intelligible differentia. In fact, the victim's family is better placed as they have statutory backing to their claim for employment., We have already held that the family members of the deceased are 'victims', therefore one of the family members is entitled to employment and it is on account of this that the Head of the State assured employment to one of the family members on a Group C post as recorded in the document dated 30 September 2020, signed by the District Magistrate and various other public authorities, and also by the father of the deceased. The assurance and the document dated 30 September 2020 are not contrary to the provisions of the Act 1989 and Rules 1995, especially Item 46 of Schedule Annexure‑I to the Rules 1995, because such an act has statutory backing and a rationale to provide relief and rehabilitation to the family of the victim belonging to Scheduled Caste/Scheduled Tribe, furthering the object of the Act. The contention that the provision of employment would violate Articles 14 and 16 of the Constitution is without any constitutional and legal basis and is rejected., Having held as above, on facts we have already seen that none of the male members of the victim's family is employed as of now. This is a consequence of the atrocity committed. The only other source of income is one and a half bigha of land, which is inadequate for a family of nine members with three children who will soon attend school. Clearly the family is in need of employment, which is why the Head of the State promised it. The promise is not based on whim but on statutory provisions and the Rules made thereunder, therefore it is enforceable. The Act 1989 itself is a legislative measure to protect the rights and interests of the poorest, the downtrodden, who belong to Scheduled Caste/Scheduled Tribe., Regarding the contention that the State can arrange for a private job and that the Act 1989 nowhere mentions a Government job, we refer to Rule 15 of the Rules 1995, specifically sub‑rule (1) clause (d), which speaks of a scheme for employment in Government or Government Undertaking for the dependent or a member of the family. If the legislature intended a private job, it would have been mentioned. Therefore, an offer of a private job is not expected from the State Government. The assurance dated 30 September 2020 also mentions appointment on a Class C post. The government may provide a job in a Government Undertaking as well. In the cases of Vinay Tiwari and Manish Gupta no such offer of a private job was made; hence, there is no reason why it cannot be done here, especially in view of statutory backing. Both brothers are Intermediate pass, which is the minimum qualification for appointment on a Class III (Group C) post in the Government or Government Undertakings. A suitable job can be provided to one of them. The family wants a job for the elder brother., Accordingly, we direct the State Government to consider employment of one of the family members in a Government or Government Undertaking commensurate with the qualification possessed by them, keeping in mind the document dated 30 September 2020 and the assurance contained therein. This shall be done within three months from the date of receipt of this order., Relocation of the family: The provision for relocation exists in Section 15‑A(6)(d) of the Act and Rule 15(aa), (b) and (c). The family members prayed for relocation in their affidavit dated 06 January 2021, stating that the behaviour of nearby residents in the village is objectionable. They also stated that after filing the charge‑sheet, a special group called Karni Sena, belonging to a particular caste, called for a Mahapanchayat against the victim's family, and the police apprehended some trouble‑makers, a fact not denied by the State. In an earlier affidavit dated 23 October 2020 the family sought relocation outside the State, but this prayer was not accepted because relocation by the State, if at all, can be within the State., An affidavit dated 12 November 2021 states that in the village there were only four families belonging to Scheduled Castes, of which two migrated after the incident, leaving only two families, one being the victim's family. The majority of the village population belongs to upper castes and the family is constantly targeted. Even under the security of the Central Reserve Police Force, whenever the family members go out they are subjected to abuse and objectionable comments. The family has become socially isolated, and its economic condition is very poor, making living in the village Boolgadhi cumbersome and impossible. One of the three children, about seven years old, is unable to go to school because of insecurity, so staying in the village is not conducive to the children's education. The family fears reprisal and repetition of criminal acts., The family owns one and a half bigha of agricultural land as bhumidhars with transferable rights and a house comprising one kitchen, one kachcha room, one pakka room, one toilet and bathroom in a compound of about 200 square yards. The house was constructed during the time of Kuwar Sen, an ancestor of the family, whose three sons are named, and the father of the deceased is a son of one of those ancestors. All descendants of the sons of Hazari Lal have a share in the house. The State says that other alleged co‑sharers are not occupying the house. Regarding alleged encroachment on land forming part of Gata No. 94 and 95, it is stated that the Gata is used by villagers and a small construction was made by the deceased's father for keeping cattle. Rights under revenue laws have been asserted with regard to the Scheduled Caste/Scheduled Tribe., As regards the provision of a house in Hathras, the family declined it for fear of repetition of such acts and because living in the same district where the incident occurred is not an option. The State Government offered a house to the victims within the municipal limits of Hathras, but the family declined. The family wants relocation outside Hathras, preferably in Noida or near Delhi, because they have relatives there and would be socially and economically more comfortable, with support from peers and relatives and better economic opportunities for the father and the member to be employed by the State., Considering the social and economic condition of the victim's family as well as their mental state, we are of the opinion that the State should consider their relocation to any other place within the State outside Hathras, keeping in mind their social and economic rehabilitation and the educational needs of the children. It is not unreasonable for the family to ask for relocation outside Hathras given their restricted movements due to security by the Central Reserve Police Force and hostile behaviour of upper‑caste villagers. After the incident, given the media attention, it would not be easy for the family to live in village Boolgadhi. How relocation is to take place is for the State and its authorities to consider, including what will happen to the land and house currently owned by the family and whether they will have to surrender them to the Government for provision of suitable house and land elsewhere., The Special Court will not enter into the nitty‑gritty of these aspects, as they may involve assessment of various factual issues. It would have been better if a contingency plan as envisaged in Rule 15 had been in place; however, as it is not, the State should consider this aspect. Almost four months have passed since filing of the affidavit dated 28 March 2022, when it was said that preparation of such plan is in process; the State should prepare it, unless already prepared, within the next three months., The reason we are directing the State to consider this relocation instead of directing the family members to approach the Special Court under Section 15‑A(6)(d) is that the State and its authorities must first consider such a claim. Only thereafter, if the victims are aggrieved, may they approach the Special Court. The detailed procedural aspects can be sorted out by the State in an objective, fair and reasonable manner, keeping in mind the object of the Act 1989, the Rules made thereunder and the plight of the family members. A report on this matter can be submitted by the State and its authorities through the District Magistrate, Hathras, to the Special Court where the trial is pending. If the family members have any further grievance they can raise it before the Court, unless there are exceptional reasons for approaching the High Court., We are not imposing any conditions on the State Government except that any consideration for relocation must further the object sought to be achieved and be in keeping with the social, economic and educational rehabilitation of the family members. The area of relocation must be socially conducive and also conducive to their economic and educational rehabilitation. This may take some time; therefore we direct the State Government to take a decision within six months. After taking such a decision a report shall be submitted to the Special Court through the District Magistrate, Hathras, and the family members, if aggrieved thereafter, may raise a grievance before the Court unless there are exceptional reasons for approaching the High Court., From the scheme of the Act 1989 and the Rules made thereunder, Section 21(2)(ii) requires the State Government to provide travelling and maintenance expenses to witnesses, including victims of atrocities, during investigation and trial of offences under this Act. The family members have pleaded that these expenses are not being paid to them. Rule 11 of the Rules 1995 also deals with travelling allowance, daily allowance, maintenance expenses and transport facilities to the victim of atrocity, his or her dependents and witnesses. Accordingly, we direct the District Magistrate, Hathras to examine any claim made by the family members regarding such expenses and to do the needful as per law, with expedition. Section 21(2)(ii) read with Rule 11 of the Rules 1995 enjoins upon the State and its authorities, specifically the District Magistrate or the Sub‑Divisional Magistrate or any other Executive Magistrate, to make necessary arrangements for providing transport facilities or reimbursement of full payment thereof to the victims of atrocity. First, the State and its authorities must comply with their statutory obligations; thereafter, if the family members are still aggrieved, they can approach the Court under Section 15‑A(6)(b) of the Act 1989.
id_1233	0	Anil Vasantrao Deshmukh aged 73 years, occupation Politician, an adult, Indian inhabitant, having his place of residence at Dnyaneshwar Bungalow, Malabar Hill, Mumbai 400006 (Accused is in Arthur Road Jail, Mumbai). Applicant versus State of Maharashtra at the instance of Assistant Director, Directorate of Enforcement, 4th Floor, Kaiser Hind Building, Currimbhoy Road, Ballard Estate, Mumbai 400001. Respondent Mr. Vikram Chaudhary, Senior Advocate with Mr. Aniket Nikam, Mr. Inderpal B. Singh, Mr. Hargun Sandhu, Ms. Devyani Chemburkar, Ms. Sonam Gond for Applicant. Mr. Anil Singh, Additional Solicitor General, with Mr. Aditya Thakkar, Mr. Shreeram Shirsat, Ms. Smita Thackur, Mr. Amandeep Singh Sra, Mr. Pranav Thackur, Ms. Nishi Singhvi, Mr. Anna Oommen, Mr. Madhur Salkar, Mr. Shekhar Mane, Mr. Aamir Qureshi, Mr. V. Agarwal, Ms. Darshita for Respondent Enforcement Directorate., The Applicant, who is arraigned in Prevention of Money Laundering Act Case No.1089 of 2021 arising out of Enforcement Case Information Report No. NBZO/1/66 of 2021, at the instance of the Directorate of Enforcement for the offences punishable under Section 4 read with Section 3 of the Prevention of Money Laundering Act, 2002, has preferred this application to enlarge him on bail., The prelude to the registration of the above‑numbered Enforcement Case Information Report can be stated as follows: A FIR bearing C.R. No.35 of 2021 was registered with Gamdevi Police Station, Mumbai, in connection with an occurrence wherein a gelatin‑laden SUV was found near the residence of an industrialist. The National Investigation Agency took over investigation. Mr. Sachin Waze, the then Assistant Police Inspector attached to the Crime Investigation Unit of Crime Branch, Mumbai, was arrested. In the wake of the controversy, by an order dated 17 March 2021, Mr. Param Bir Singh, the then Commissioner of Police, Mumbai, was transferred from the said post. The Applicant was then holding the office of the Home Minister, Government of Maharashtra., Mr. Param Bir Singh addressed a letter dated 20 March 2021 to the then Chief Minister of Maharashtra, making certain allegations against the Applicant. As the contents of the letter came into the public domain, a batch of petitions including Public Interest Litigation No.6 of 2021 were instituted in this Court. The Division Bench of this Court by an order dated 5 April 2021 directed the Central Bureau of Investigation to conduct a preliminary inquiry into the complaint made by Smt. Jayshree Patil, one of the petitioners, to which a copy of the letter dated 20 March 2021 was annexed. A challenge to the order was turned down by the Supreme Court by an order dated 8 April 2021., The CBI conducted a preliminary inquiry and, on 21 April 2021, registered FIR bearing No. RC No.2232021A0003 at ACB‑V, New Delhi, against the Applicant and unknown others, with the assertion that the preliminary inquiry, 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. Consequently, a regular case under Section 7 of the Prevention of Corruption Act, 1988 and Section 120B of the Indian Penal Code was registered against the Applicant and unknown others., Treating the aforesaid FIR registered by the Central Bureau of Investigation as a source from which the information is received and the offence alleged therein as a predicate offence, the Respondent Enforcement Directorate registered the above Enforcement Case Information Report against the Applicant and others for the offence punishable under Section 4 read with Section 3 of the Prevention of Money Laundering Act. The Respondent asserted that as Section 120B of the Indian Penal Code and Section 7 of the Prevention of Corruption Act, 1988 are scheduled offences as mentioned in Paragraphs 1 and 8 respectively of Part A of the Schedule appended to the Prevention of Money Laundering Act, a prima facie case for the offence of money laundering defined under Section 3 punishable under Section 4 of the Act appeared to have been made out., In the intervening period, the challenges on behalf of the Applicant to the registration of the FIR by the Central Bureau of Investigation and the issue of summons to the Applicant under Section 50 of the Prevention of Money Laundering Act were negatived by this Court. For the purpose of determination of this application, it may be noted that after disposal of the Writ Petition No.625 of 2021 by an order dated 29 October 2021, the Applicant appeared before the Respondent Enforcement Directorate and, after interrogation, was arrested on 2 November 2021. After initial remand to Enforcement Directorate custody, the Applicant has been in judicial custody since 15 November 2021., On 23 August 2021 the Respondent filed a prosecution complaint against Mr. Sachin Waze and 13 others. The Special Court took cognizance of the offences on 16 September 2021. After the arrest of the Applicant and necessary investigation, the Respondent filed a supplementary prosecution complaint, wherein the Applicant has been arraigned for the offence of money laundering, giving an account of the role of the Applicant therein. The Special Court took cognizance of the offences., The gravamen of indictment against the Applicant, as borne out by the allegations in the supplementary prosecution complaint, can be summarised as follows: The Applicant, in the capacity of the Home Minister, played a crucial role in reinstatement of Mr. Sachin Waze, who was under suspension for 16 years. The Applicant and Mr. Sachin Waze were working as a team to obtain illegal gratification through extortion and illegal activities. The Applicant instructed Mr. Sachin Waze to collect Rs.3 lakh per month from 1,750 bars and restaurants across Mumbai. On the instructions of the Applicant, Mr. Sachin Waze collected cash amount of Rs.4.70 crore from the bar owners during December 2020 to February 2021. Mr. Kundan Shinde, the then Personal Assistant of the Applicant and a trusted aide, collected the cash amount of Rs.4.70 crore from Sachin Waze on behalf of the Applicant., The Applicant abused his position to effect transfers and postings of police officials with a view to obtain undue advantage. The Applicant passed unofficial instructions to the members of the Police Establishment Board and caused them to make recommendations for transfers and postings. The Applicant allegedly received huge consideration through some intermediary for favourable transfers and postings of police officials., Mr. Sanjeev S. Palande, the then Private Secretary of the Applicant, passed the Applicant’s instructions to the members of the Police Establishment Board and was also involved in collection of money from the Orchestra Bar owners. Mr. Palande thus assisted the Applicant in money‑laundering activities., It further transpired that the Applicant, in pursuance of a criminal conspiracy with his son Hrishikesh, transferred illegal gratification to Delhi‑based shell companies of Surendra and Virendra Jain, the co‑accused, through hawala operators. Surendra and Virendra Jain, in turn, infused the amount into the banking channel and further layered through Delhi‑based shell companies and eventually transferred the money so laundered to the bank account of Shri Sai Shikshan Sanstha, a charitable trust managed and controlled by the Applicant’s family. In such fashion, an amount of Rs.1.71 crore was transferred to the account of Shri Sai Shikshan Sanstha, disguised as a donation, in February and March 2021., Allegations have also been made that in the past the Applicant has indulged in money‑laundering activities and created various assets in the name of his family members out of unaccounted money. The Applicant was therefore actively involved in generation and laundering of the proceeds of crime., The Applicant seeks to be enlarged on bail on the grounds, inter alia, that the prosecution case primarily rests on the statements of witnesses recorded under the Prevention of Money Laundering Act, 2002, the credibility of whom is gravely suspect. Allegations against the Applicant are centered around the statements of Mr. Sachin Waze and Mr. Param Bir Singh, which do not command a semblance of credence. The statements of the remaining witnesses do not have any incriminating tendency with respect to the Applicant. It would therefore be extremely unjust to deprive the personal liberty of the Applicant based on the statements of Mr. Sachin Waze and Mr. Param Bir Singh, who stand thoroughly discredited by their acts, conduct and statements, which emerge from the prosecution case itself., The Applicant asserts there is not an iota of incriminating material as regards the allegations of influencing the transfers and postings of police officials. In fact, the Applicant, in the capacity of the then Home Minister, was statutorily empowered to pass orders of transfers and postings on the recommendations of the Police Establishment Board. In a majority of cases, orders were passed in conformity with the recommendations of the Board. There is no allegation that the Applicant made the members of the Board to make recommendations for illegal gratification. The Applicant further contends that there is no material to show that he received a sum of Rs.4.70 crore either directly or indirectly, nor that the sum of Rs.1.70 crore transferred to the account of Shri Sai Shikshan Sanstha was part of the alleged proceeds of crime. The transfer represents legitimate transactions through the banking channel. The statements of Mr. Surendra and Virendra Jain, co‑accused, and Mr. Sudhir Baheti, Chartered Accountant, made under duress, cannot sustain the allegations of money laundering. In substance, there is no material to prima facie demonstrate that the Applicant indulged in any activity which would fall within the mischief of money laundering defined under Section 3 of the Prevention of Money Laundering Act. Alluding to the alleged vendetta and persecution at the instance of the Respondent Enforcement Directorate for ulterior motive, the Applicant prays for release on bail., It is contextually relevant to note that the Applicant has asserted that he is suffering from multiple ailments and that his advanced age and health condition deserve to be taken into account in considering the prayer for bail., An affidavit in reply is filed on behalf of the Respondent Enforcement Directorate, in opposition to the prayer for bail. Adverting to the nature of the accusation against the Applicant, its gravity, and the material collected during the investigation, the Respondent contends that there is ample evidence to establish the complicity of the Applicant with each of the accusations. In view of the evidence, including the money trail, it cannot be said that the twin conditions for grant of bail envisaged by Section 45 of the Prevention of Money Laundering Act have been satisfied by the Applicant. Therefore, the interdict contained in Section 45 operates with full force and vigor and the Applicant does not deserve to be released on bail., In the wake of the aforesaid assertions in the application, the contentions in the affidavit in reply and the material placed on record, I have heard Mr. Chaudhary, learned Senior Advocate appearing for the Applicant and Mr. Anil Singh, learned Additional Solicitor General for the Respondent Enforcement Directorate at considerable length. The learned counsel have taken me through the prosecution complaint, supplementary prosecution complaint, FIR registered against the Applicant and others by the Central Bureau of Investigation, the statements of witnesses recorded by the Enforcement Directorate under Section 50 of the Prevention of Money Laundering Act, the statements of witnesses recorded by the Central Bureau of Investigation and the statements of witnesses recorded under Section 164 of the Code of Criminal Procedure, 1973 by the learned magistrates., The learned counsel also invited my attention to the various orders passed by the Supreme Court and this Court in multiple proceedings. However, at the outset, it is necessary to note that the various orders passed by the Supreme Court and this Court, especially as regards the gravity of the allegations in the letter dated 20 March 2021, underscoring the necessity of a fair and impartial investigation, were in the context of the stage of the proceedings. At this juncture, we have traversed the stage of investigation concerning the Applicant to a substantial extent, though in the supplementary prosecution complaint the Respondent Enforcement Directorate seeks to keep the door ajar for further investigation. At this stage, therefore, the Bombay High Court is called upon to consider the entitlement of the Applicant for bail in the light of the material collected during the investigation. Of course, the prelude which led to the registration of the Enforcement Case Information Report needs to be kept in view., Mr. Chaudhary, learned Senior Advocate appearing for the Applicant, strenuously submitted that the prosecution of the Applicant at the instance of the Respondent Enforcement Directorate exemplifies a flagrant abuse of statutory powers to trample upon the constitutional and statutory rights of the Applicant. A stark feature of this prosecution is deep‑rooted subjectivity at the cost of objective assessment, resulting in a highly opinionated case against the Applicant peppered with expressions such as 'appears', 'seems' and the like. In the process, truth and objectivity have become casualties. Mr. Chaudhary further urged that another peculiar feature of the case is the prosecution’s endeavour to sustain it on the basis of statements of witnesses, without any substantive evidence. That, according to Mr. Chaudhary, brings into question the credibility and reliability of the statements recorded under Section 50 of the Prevention of Money Laundering Act., Mr. Chaudhary further submitted that the statements of witnesses, even if taken at face value, do not substantiate the prosecution version that the Applicant gave instructions to Sachin Waze to collect money from bar owners and received money, as alleged. Except the statement of Mr. Sachin Waze, which does not deserve any credence, there is no material in support of the primary allegation. On the contrary, if the statements of the witnesses recorded before the learned magistrate under Section 164 of the Code in other cases are considered, one gets an impression that money was collected at the instance of the then Commissioner of Police. Those statements recorded under Section 164 of the Code and made before the Justice Chandiwal Commission of Inquiry stand on a higher pedestal than the statements extracted by the Enforcement Directorate under Section 50 of the Prevention of Money Laundering Act, urged Mr. Chaudhary., On the aspect of the alleged exercise of undue influence over the transfers and postings of police officials, according to Mr. Chaudhary, there is no element of criminality discernible from the statements of any prosecution witness, except an outrageous claim of Mr. Sachin Waze that he learned that Rs.40 crore were obtained by way of illegal gratification for effecting transfers and postings of police officials within the Mumbai Police Commissionerate., Taking the Court through the composition of the Police Establishment Board and the provisions of the Maharashtra Police Act, 1951, which vest the authority in the Home Minister in the matter of transfers and postings of police officials, Mr. Chaudhary would urge that the accusation is simply unfounded. In any event, there is no material to show that the said exercise generated any proceeds of crime to fall within the dragnet of money laundering., Placing reliance on the recent pronouncement of the Supreme Court in the case of Vijay Madanlal Choudhary v. Union of India and Others, Mr. Chaudhary urged, with vehemence, that the allegation that the Applicant had, over a period of time, amassed ill‑gotten wealth of approximately Rs.13.25 crore and transferred the same to the account of Shri Sai Shikshan Sanstha, by no stretch of imagination, can render the said amount proceeds of crime, even if assumed to be unaccounted, since there is no predicate offence in relation thereto. Even the sum of Rs.1.71 crore allegedly transferred to the account of Shri Sai Shikshan Sanstha during February/March 2021 cannot be termed as proceeds of crime in the absence of any link evidence to show placement, layering and integration of the amount., Lastly, Mr. Chaudhary would urge that the twin conditions under Section 45 of the Prevention of Money Laundering Act can be said to have been adequately satisfied by the inherently contradictory and improbable nature of the accusation and the quality of material pressed in support thereof. In any event, the advanced age and precarious health condition of the Applicant, borne out by the medical record maintained at the prison and government hospitals, warrants exercise of discretion in favour of the Applicant by resorting to the first proviso to Section 45 of the Prevention of Money Laundering Act., Per contra, Mr. Anil Singh, learned Additional Solicitor General, submitted that the prayer for bail must be considered keeping in view the nature and purpose of the Prevention of Money Laundering Act, the seriousness and gravity of money laundering, which is judicially recognized, and the fact that money laundering forms an independent offence. The legislative object behind prescribing twin conditions under Section 45 of the Act also needs to be kept in view. A two‑pronged submission was canvassed by Mr. Singh in opposition to the prayer for bail. First, the Applicant has failed to demonstrate that the twin conditions are satisfied. Second, even if it is assumed that the twin conditions are met, the Applicant, who wields considerable influence and has not co‑operated with the investigation, is not entitled to the exercise of discretion., Amplifying the first submission, Mr. Singh stoutly submitted that the validity of the twin conditions has been upheld by the Supreme Court in the case of Vijay Choudhary. Taking the Court extensively through the pronouncement of the Supreme Court in that case, Mr. Singh submitted that the Prevention of Money Laundering Act is a code in itself. It is held to be neither a pure regulatory legislation nor pure penal legislation, but an amalgam of several facets essentially to address the scourge of money laundering. The offence of money laundering is considered as heinous a crime as terrorism or murder. It is a standalone offence. Each provision of the Act must be given its due significance. Therefore, the mandate of Section 45 must be satisfied by an accused charged with the offence of money laundering before he is enlarged on bail., Based on the aforesaid legal premise, Mr. Singh would urge that, in the facts of the case, there is ample material in the form of statements of witnesses, money trail and evidence collected during the investigation to show that the Applicant was involved in money laundering. It was further submitted that what the Applicant desires the Court to do is to hold a mini‑trial to arrive at the conclusion that the Applicant is not guilty of the offence. To this end, according to Mr. Singh, the Applicant has adopted a selective approach in relying upon the statements of witnesses which suit his case. However, the material is required to be appraised as a whole. In any event, the credibility and reliability of the witnesses is not to be judged at this stage, and that is a matter for trial. Therefore, the Court would not be justified in embarking upon the exercise of evaluating the credibility of the witnesses at this stage., To bolster the aforesaid submission, Mr. Singh, in addition to the observations in the case of Vijay Choudhary, placed reliance on the judgments of the Supreme Court in the case of Satish Jaggi v. State of Chhattisgarh and Others and National Investigation Agency v. Zahoor Ahmad Shah Watali., I have given anxious consideration to the aforesaid submissions. To begin with, it may be expedient to note the considerations which normally weigh with the Court in granting or refusing bail in a non‑bailable offence. Ordinarily, the nature and seriousness of the offences, the circumstances in which the offences were allegedly committed, the circumstances peculiar to the accused, the nature and character of the evidence or material pressed against the accused, the possibility of the accused not being secured at trial, reasonable apprehension of witnesses being tampered with, the possibility of the trial being completed within a reasonable period and the larger public interest are the factors which influence the exercise of discretion., It is also well settled that at the stage of consideration of entitlement for bail, a detailed examination of the material or evidence and elaborate documentation of the merits of the case are not required. Nonetheless, the Court is expected to ascribe reasons for granting or refusing bail. The exercise is materially different from discussing merits of the case as the Court would do at the stage of determination of guilt., The aforesaid requirements of ascribing reasons assume more salience where there are statutory restrictions in the matter of grant of bail like Section 45 of the Prevention of Money Laundering Act. Section 45 contains an interdict against the grant of bail to a person accused of an offence under the Act, unless the public prosecutor has been given an opportunity to oppose the application and the Court is satisfied that there are reasonable grounds for believing that such person is not guilty of such offence and that if released on bail, he is not likely to commit any offence while on bail. Sub‑section (2) of Section 45 further provides that the limitation on granting bail under subsection (1) is in addition to the limitation under the Code or any other law for the time being in force for granting bail., When a Court is confronted with the aspect of grant of bail where there are statutory restrictions, the first question is the nature of restrictions spelled out by the legislative mandate. On first principles, the restrictions do not mean an absolute bar against grant of bail. It turns upon the degree of restrictions envisaged and the tests to be applied to ascertain whether, in a given case, the statutory restrictions are overcome., A useful reference can be made to a three‑Judge Bench judgment of the Supreme Court in the case of Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra wherein the contours of the power of the Court to grant bail in the face of the interdict contained in Section 21(4) of the Maharashtra Control of Organized Crime Act, 1999 arose for consideration. The interdict against grant of bail under Section 21(4) of the MCOCA Act is pari materia the bar contained in Section 45(1) of the Prevention of Money Laundering Act. In Ranjitsingh Sharma the Supreme Court postulated the approach to be adopted in arriving at the satisfaction as to whether the accused is not guilty of such offence and that the accused is not likely to commit any offence while on bail. \Presumption of innocence is a human right. Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be a reasonable restriction but Clause (b) of Sub‑section (4) of Section 21 must be given a proper meaning. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to record such a finding? Would there be any machinery available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever? Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on record only for grant of bail and for no other purpose. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. The wording of Section 21(4) does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub‑section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby.
id_1233	1	Conversely, it is not peremptory that the Supreme Court of India must arrive at a positive finding that the Applicant has not committed an offence under the Act. Likewise, a satisfaction that the accused is not likely to commit an offence while on bail is qua the offence of the kind with which the accused is charged and not any other offence. On the aforesaid touchstone, reverting to the facts of the case, it has to be seen whether the aforesaid twin tests can be said to have been satisfied. To this end, the nature of evidence or material pressed into service against the Applicant is required to be appraised to arrive at a tentative finding of existence or otherwise of reasonable grounds for believing that the Applicant is not guilty of the offence, nor he is likely to commit an offence, if released on bail., On the basis of the material on record, the prosecution case can be conveniently considered in three parts. The Applicant instructed Mr. Sachin Waze to collect money from bar owners or establishments, and, accordingly, the money was collected and handed over to Mr. Kundan Shinde, the co‑accused, by Mr. Sachin Waze on the instructions of the Applicant. The Applicant was instrumental in influencing the transfers and postings of the police officials and gave instructions to the members of the Police Establishment Board to make favourable recommendations which were finally approved by him. The Applicant generated several proceeds of crime out of the above scheduled offences and indulged in several activities connected with the proceeds of crime, including possession, concealment and projection as untainted property., The offence of money laundering, in the context of dealing with the proceeds of crime, is sought to be established by pressing into service the material to show that the funds were transferred to the account of Shri Sai Shikshan Sanstha from the shell companies by a complex process of placing, layering and integration. In the supplementary prosecution complaint, the money trail has been further divided into three parts. Out of the amount which was allegedly paid by Mr. Sachin Waze during the period February/March 2021, a sum of Rs 1.71 crores was transferred to the account of Shri Sai Shikshan Sanstha, Nagpur by initially transferring cash through Havala operators to Mr. Surendra and Virendra Jain, the co‑accused, who, in turn, infused the said tainted money into the banking channel and eventually transferred the amount to the account of Shri Sai Shikshan Sanstha through the shell companies operated by them. The Applicant during his tenure as Home Minister has laundered his unaccounted cash money to the tune of Rs 1.12 crores by employing the aforesaid modus operandi during the period 19 September 2020 to 28 November 2020. The Applicant had been actively integrating his unaccounted cash into the banking system since April 2011, by likewise transferring the amounts into the account of Shri Sai Shikshan Sanstha. It is also alleged that during the period 23 July 2011 to 13 May 2019 an unaccounted amount of Rs 10.42 crores was accordingly integrated., In substance, the Applicant allegedly laundered a sum of Rs 13.25 crores since the year 2011, out of which Rs 2.83 crores were laundered during his tenure as Home Minister, which also comprised a sum of Rs 1.71 crores out of Rs 4.70 crores collected from the orchestra bar owners through Mr. Sachin Waze (paragraph 8.9 of the Supplementary Prosecution Complaint)., Mr. Chaudhari strenuously submitted that the aforesaid allegation of money laundering in respect of the alleged transfer of Rs 1.12 crores during the period the Applicant was holding the office of Home Minister (second component) and a sum of Rs 10.42 crores during the period 2011‑19 (third component) cannot be termed as proceeds of crime. The charge is thus totally misconceived. Those amounts, in the absence of any predicate offence in relation thereto, can never be termed as proceeds of crime., To bolster this submission, Mr. Chaudhari placed heavy reliance on the exposition of the term proceeds of crime by the Supreme Court of India in the case of Vijay Choudhary. It was urged that to be proceeds of crime, the property must be derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence. The mere fact that the investigating agency could locate certain transactions in the account of Shri Sai Shikshan Sanstha is not sufficient to draw an assumption that the said property forms part of the proceeds of crime., The Supreme Court observed that the definition of proceeds of crime in Section 2(1)(u) of the Prevention of Money Laundering Act, 2002 is common to all actions under the Act, namely attachment, adjudication and confiscation as well as prosecution. The original provision, prior to amendment by the Finance Act 2015 and Finance (No. 2) Act 2019, took within its sweep any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. Subsequent amendments included property taken or held outside the country and clarified that the definition covers any property derived or obtained directly or indirectly as a result of criminal activity relating to the scheduled offence. The Court held that the expression ‘proceeds of crime’ must be construed strictly; not all property recovered or attached in connection with criminal activity relating to a scheduled offence can be regarded as proceeds of crime. Property must be derived or obtained as a result of criminal activity relating to the scheduled offence to qualify. The Court further noted that the definition includes property derived indirectly, such as property obtained in exchange for property that was directly derived from criminal activity. The explanation added in 2019 is clarificatory and does not expand the width of the definition. The Court emphasized that dealing with proceeds of crime by any process or activity constitutes the offence of money laundering under Section 3 of the Act., The Court noted that the definition clause includes any property derived or obtained indirectly, which would include property derived from the sale proceeds of property directly derived from criminal activity. The 2019 explanation does not go beyond the intent of tracking property derived directly or indirectly as a result of criminal activity relating to a scheduled offence. The definition of property also contains an explanation that the term includes property of any kind used in the commission of an offence under the 2002 Act or any of the scheduled offences. While not every crime property is proceeds of crime, any property purchased or derived from proceeds of crime must be regarded as tainted property and actionable under the Act. The Court stated that only property derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence can be regarded as proceeds of crime. Authorities under the 2002 Act cannot initiate prosecution for money laundering unless such proceeds of crime exist. If the person alleged to be involved in the scheduled offence is acquitted or discharged, there can be no action for money laundering against that person., The Supreme Court has postulated in explicit terms that only property derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence can be regarded as proceeds of crime. Possession of unaccounted property acquired by legal means may be actionable for tax violations, yet will not be regarded as proceeds of crime unless it constitutes an offence included in the Schedule. The authorities under the 2002 Act cannot resort to action against any person for money laundering on an assumption that the property recovered must be proceeds of crime unless the scheduled offence is registered with the jurisdictional police or pending inquiry before the competent forum., Mr. Anil Singh, learned Additional Solicitor General, submitted that in the judgment of Vijay Choudhary the Supreme Court further expounded that the offence of money laundering is not dependent on or linked to the date on which the scheduled offence or predicate offence was committed. The relevant date is the date on which the person indulges in the process or activity connected with such proceeds of crime. He also submitted that the Supreme Court held that the offence under Section 3 is a standalone offence. Therefore, according to Mr. Singh, the fact that the unaccounted money was transferred to the account of Shri Sai Shikshan Sanstha before the alleged dates of the commission of the predicate offence is of no significance., The Supreme Court observed in paragraph 270 of the judgment in Vijay Choudhary that the offence of money laundering is not dependent on or linked to the date on which the scheduled offence is committed and the date that assumes significance is the date on which the person indulges in the process or activity connected with such proceeds of crime. Further observations in paragraphs 281 to 283 make clear that the existence of proceeds of crime within the meaning of Section 2(1)(u) is quintessential. The Court explained that the offence under Section 3 is dependent on the wrongful and illegal gain of property as a result of criminal activity relating to a scheduled offence, and the property must qualify as proceeds of crime under Section 2(1)(u). If a person is acquitted or absolved of the scheduled offence, property that is rightfully owned cannot be termed proceeds of crime. The authority of the Authorized Officer under the 2002 Act to prosecute for money laundering is triggered only if proceeds of crime exist and the person is involved in any process or activity. Mere existence of undisclosed income does not attract the definition of proceeds of crime unless the property is derived as a result of criminal activity relating to a scheduled offence. The authorized officer may refer information to the jurisdictional police for registration of a scheduled offence; only if such offence is registered does the recovered property partake the colour of proceeds of crime, enabling further action under the Act. In the absence of proceeds of crime, the authorities cannot initiate prosecution., In the case at hand, with respect to the second and third components of transfer to the account of Shri Sai Shikshan Sanstha, it appears that for the transfer during the period 2011‑19 (third component) there is no allegation that the property was derived or obtained as a result of criminal activity relating to a scheduled offence. Similarly, for the amount of Rs 1.12 crores transferred during September 2020 to November 2020 (second component), there does not seem to be any allegation that the property was derived or obtained as a result of any criminal activity relating to the scheduled offence. On the contrary, what is alleged is that the Applicant laundered unaccounted cash amounting to Rs 1.12 crores to the account of Shri Sai Shikshan Sanstha during his tenure as Home Minister (paragraph 8.7 of the Supplementary Prosecution Complaint)., Money trail is sought to be established in respect of the amount of Rs 1.71 crores only, which allegedly forms part of the amount of Rs 4.70 crores allegedly extorted from the orchestra bar owners (paragraphs 8.9 and 8.10 of the Supplementary Prosecution Complaint)., In view of the aforesaid nature of the allegation and the material in support thereof, I am inclined to agree with the submission of Mr. Chaudhary that the prosecution case does not project the second and third components of alleged unaccounted cash as proceeds of crime. Whether the third component of Rs 1.71 crores, prima facie, appears to be proceeds of crime will be considered later, while dealing with the primary accusation that the Applicant instructed Mr. Sachin Waze to collect money from bar owners or establishments, as that constitutes an integral part of the gravamen of indictment against the Applicant., To lend support to the allegation that the Applicant exercised influence over the transfers and postings of police officials and thereby obtained undue advantage, the prosecution has relied upon the statements of Mr. Sachin Waze, Mr. Sanjeev Palande (co‑accused), Mr. Ravi Vhatkar (Personal Assistant of the Applicant), Mr. Param Bir Singh (then Commissioner of Police) and Mr. Sitaram Kunte (then Additional Chief Secretary). Mr. Sanjeev Palande, the then Private Secretary to the Applicant, stated under Section 50 of the Prevention of Money Laundering Act that another Cabinet Minister representing a constituent party used to send recommendations for transfers and postings of police officials to the Applicant and a list for recommending the transfers and postings was made final without any record being maintained in the office of the Home Minister. Mr. Ravi Vhatkar, then Officer on Special Duty in the office of the Applicant, stated that the Applicant, in consultation with another Cabinet Minister, used to prepare the list and forward it to the concerned Police Establishment Board for necessary action. Mr. Sitaram Kunte, the then Additional Chief Secretary (Home) and chairperson of the Police Establishment Board, stated that the Applicant used to hand over an unofficial list containing suggestions regarding certain police officers and posts, conveyed orally to the other members of the Board, and that most of the suggestions were included in the final order. At times, on the directions of the Applicant, Mr. Palande handed over such a list to him. Mr. Param Bir Singh, also a member of the Board, stated that the list of names of police officials to be transferred and posted was prepared in the office of the Applicant and given to Mr. Kunte, and that the proceedings of the committee were a mere formality where members, despite reservations, had to agree and sign the recommendations., Mr. Anil Singh submitted that the fact that the Applicant prepared and forwarded an unofficial list of police officers for transfers and postings to the concerned Police Establishment Board is acknowledged by all. This modus operandi was resorted to by the Applicant to make a farce of acceptance of all the recommendations of the Board, as the recommendations were, in fact, engineered by the Applicant himself. The exercise of undue influence in the matter of transfers and postings is thus evident., Mr. Chaudhari, learned Senior Advocate, argued that under the provisions of the Maharashtra Police Act, the Applicant in the capacity of Home Minister was the authority to make the transfers and postings. The mere fact that the Applicant made certain suggestions which were considered by the Board may not, by itself, amount to exercise of undue influence, much less an offence. He further submitted that even if the statements of the witnesses are taken at face value, there is no element of criminality involved. None of the witnesses or any of the persons who were transferred, posted, or denied the desired posting, have stated that the exercise was done for illegal gratification. Consequently, there is no element of generation of proceeds of crime for the alleged predicate offence. Only Mr. Sachin Waze makes a bald allegation that money exchanged hands., From the statement of Mr. Sachin Waze recorded on 19 June 2021, it becomes evident that with regard to the transfers and postings of Deputy Commissioners of Police in July 2020, Mr. Waze stated that after three to four days of the transfer orders being reversed, he learned that a sum of Rs 40 crores had been collected from the police officers and out of that, Rs 20 crores were given to the Applicant. Mr. Param Bir Singh, in his statement recorded under Section 50 of the Prevention of Money Laundering Act, also referred to the incident of transfers and postings of DCPs in July 2020 and asserted that he had heard that huge consideration was paid to the Applicant through some intermediary for favourable transfers and postings. Evidently, both deponents claimed to have learned or heard that money changed hands. These statements ex‑facie cannot bear the weight of the allegation of generation of proceeds of crime out of the alleged predicate offence of exercising influence over the transfers and postings of police officials. The statements lack certainty as to the source, time and place and appear to be hearsay., It is pertinent to note that there is no categorical allegation in the supplementary prosecution complaint that a particular property has been derived or obtained as a result of criminal activity relating to the scheduled offence of exercising undue influence over transfers and postings. Instead, what is alleged is that the Applicant laundered unaccounted cash during the period he was holding the office of Home Minister., This takes me to the crux of the allegations against the Applicant of instructing Mr. Sachin Waze to collect money from the orchestra bar owners or establishments. The statements of Mr. Sachin Waze, Mr. Sanjay Patil (then Assistant Commissioner of Police, Social Service Branch), Mr. Mahesh Shetty, Mr. Rameshwar Ramgopal Yadav and other bar owners, and Mr. Param Bir Singh are pressed into service to buttress this allegation. Primary reliance appears to be on the statement of Mr. Sachin Waze recorded under Section 50 of the Prevention of Money Laundering Act and the confession in the Central Bureau of Investigation case recorded before the learned Magistrate., In the statement recorded on 19 June 2021, Mr. Sachin Waze stated that in October 2020, after a meeting at the Applicant’s official residence Dnyaneshwari, a Mr. Karankumar Shetty gave a list of 1,750 bars and restaurants and asked him to collect Rs 3 lakhs from each bar and restaurant in lieu of favouring them for operating beyond prescribed time and without any restriction as to occupancy. The Applicant asked Mr. Shetty to arrange a meeting of bar and restaurant owners with Mr. Waze. A meeting was arranged with the orchestra bar owners in December 2020, and representatives were asked to pay a sum of Rs 3 lakhs each. Another meeting was held on 16 December 2020, attended by Mr. Sanjay Patil, ACP. Mr. Waze claimed to have collected approximately Rs 4.70 crores between December 2020 and February 2021. In January 2021, the Applicant called and instructed him to hand over the cash to Mr. Kundan Shinde, his Personal Assistant and co‑accused. Mr. Waze handed over approximately Rs 1.60 crores to Mr. Shinde outside Sahayadri Guest House. In February 2021, the Applicant again called him and instructed him to hand over cash to Mr. Shinde. Mr. Waze then handed over eleven bags containing cash amounting to Rs 3 crores to Mr. Shinde., Mr. Waze further stated that he had informed Mr. Param Bir Singh about the Applicant’s instructions to collect money and that Mr. Singh advised him against following the instructions. In the confession before the learned Magistrate in the CBI case, Mr. Waze stated that after Diwali 2020, the Applicant told him that there were 1,750 bars in Mumbai and that an average of Rs 3 lakhs per bar should be collected and given to him. When Mr. Waze expressed disinclination, the Applicant threatened to suspend him again. He then informed Mr. Param Bir Singh, the then Commissioner of Police. Upon insistence of the Applicant, Mr. Waze claimed to have met the bar owners in mid‑December 2020 and asked them to collect money and hand it over to him to be paid to ‘No. 1’, a code word for the Applicant. An initial amount of Rs 40 lakhs was paid by bar owners Mahesh Shetty and Jaya Poojari. After collections in January and February 2021, the cash was given to the Applicant through Mr. Shinde. The first installment was in the last week of January 2021, about Rs 1.70 crores, handed over near Sahyadri Guest House. The second installment of Rs 3 crores was handed over near Raj Bhavan signal square., Mr. Ramesh Kumar Yadav, Mr. Mahesh Shetty and other bar owners, whose statements have been recorded under Section 50 of the Prevention of Money Laundering Act, stated that meetings were held with Mr. Sachin Waze in his office and in the premises of the Commissioner of Police Office. The amounts to be paid as per category of the bar were decided, and Mr. Waze informed them that the money collected would go to ‘No. 1’ and to the Crime Branch and Social Service Branch of Mumbai Police. The monies were collected and paid to Mr. Sachin Waze.
id_1233	2	Param Bir Singh, on his part, stated that Mr. Sachin Waze had briefed him about the expectation of the Applicant of collection of Rs.100 Crores including Rs.40-50 Crores from restaurants and bars, in the second half of February, 2021 and he had advised him not to succumb to the pressure and not to indulge in such illegal activities. Similarly, Mr. Sanjay Patil, Assistant Commissioner of Police, had also briefed him and Mr. Patil was also advised against indulging in any such activities. As to who is Number One, referred to by Mr. Sachin Waze, Mr. Param Bir Singh stated that the Commissioner of Police was never called or referred to as Number One., It is necessary to note a material deviation from the aforesaid version in the form of statement of Mr. Sanjay Patil. In his statement recorded by the Enforcement Directorate under Section 50 of the Prevention of Money Laundering Act, Mr. Patil referred to the meetings in the office of Mr. Sachin Waze with the orchestra bar owners, wherein Mr. Sachin Waze, after the bar owners left the office, allegedly informed him that he was collecting money from the orchestra bar owners for allowing them to run the bars without any restrictions. Subsequently, in the month of March, 2021 Mr. Waze informed him that the Applicant had asked him to collect Rs.3 Lakhs each from 1,750 bars across Mumbai. Upon being enquired, Mr. Sachin Waze informed him that he had already appraised the Commissioner of Police about the said demand., On 4th March, 2021 according to Mr. Patil, when he visited Dnyaneshwari, the then official residence of the Applicant, along with Mr. Raju Bhujbal, the then Deputy Commissioner of Police, Mr. Sanjeev Palande asked both of them as to whether the collection of Rs.3 Lakhs each from 1,750 bars and restaurants across Mumbai was being made, to which he replied that the figure of number of bars was false and he and his branch were not indulging in any such collection. Mr. Patil claimed to have informed the said fact about the conversation with Mr. Palande to Mr. Param Bir Singh, the then Commissioner of Police., Mr. Patil in his statement under Section 161 of the Code before the Investigating Officer in Central Bureau of Investigation case, claimed to have enquired with Mr. Waze as to why he was collecting the amount from the orchestra bar owners. Mr. Waze replied that he was doing it for Number One. When he asked as to who was Number One, Mr. Waze informed him that it was the Commissioner of Police. In another statement recorded by the learned Metropolitan Magistrate under Section 164 of the Code in Criminal Revision No. 71 of 2021 registered with Goregaon Police Station, Mr. Sanjay Patil reiterated that after the meeting with the orchestra bar owners, he had enquired with Mr. Sachin Waze as to why he was collecting the amount, the latter replied that it was for Number One. Upon being further questioned as to who was Number One, Mr. Waze told that it was the Commissioner of Police., Banking upon the aforesaid statements of Mr. Sanjay Patil, and Mr. Mahesh Shetty, Uday Kumar Shetty and Jaya Poojari, owners of the bar recorded under Section 164 of the Code, wherein they asserted that in common parlance, the Commissioner of Police was considered to be Number One in the police hierarchy, it was submitted that the person for whom Mr. Waze was allegedly collecting money from the orchestra bar owners was not the Applicant, but the then Commissioner of Police. These statements which were recorded before the learned Magistrate stand on a higher footing than the statements extracted by the Enforcement Directorate under Section 50 of the Prevention of Money Laundering Act. The situation which thus obtains is that the allegation of collection of a sum of Rs.4.70 Crores from the bar owners by Mr. Sachin Waze is borne out by the statements of Mr. Waze as well as the persons who claimed to have paid the said amount to Mr. Waze. The said amount in the context of the allegation would satisfy the description of proceeds of crime. For whom or at whose behest the said amount was collected is the pivotal question., Mr. Anil Singh canvassed a submission that there is material to indicate that the proceeds of crime were delivered to the Applicant either directly or indirectly. The said factum of possession itself would constitute an offence punishable under Section 3, even if there is no material to indicate that the said proceeds of crime were subsequently layered or integrated. In addition, according to Mr. Singh, in the case at hand, there is material to indicate that the proceeds of crime found their way to the accounts of Shri Sai Shikshan Sanstha through a complex process of layering and integration., At this stage, the statements of Mr. Surendra Jain, co‑accused and Mr. Sudhir Baheti, Chartered Accountant, assume significance. Mr. Jain stated that he and his family members operate around 40 shell companies. Mr. Sudhir Baheti, Chartered Accountant, would convey the requirement of credit in lieu of cash. At the instructions of Mr. Sudhir Baheti, the amounts were credited to the account of Shri Sai Shikshan Sanstha through Real Time Gross Settlement/cheque. Since the year 2013, he had been crediting the amounts to the account of Shri Sai Shikshan Sanstha. He claimed to have transferred approximately Rs.4 Crores to the account of Shri Sai Shikshan Sanstha through Messrs. V.A. Realcom Private Limited, Messrs. Reliable Finance Company Private Limited and Messrs. Utsav Securities Private Limited., Mr. Sudhir Baheti, Chartered Accountant, states that he had known Mr. Surendra and Virendra Jain, co‑accused and Mr. Hrishikesh Deshmukh, son of the Applicant, who was managing the affairs of Shri Sai Shikshan Sanstha. At Mr. Hrishikesh's instance, he had coordinated transfer of credit to the account of Shri Sai Shikshan Sanstha during the period 2013‑2021. A sum of Rs.4,18,67,782 was thus credited to the account of Shri Sai Shikshan Sanstha in the aforesaid fashion. After receipt of the credit, Mr. Hrishikesh Deshmukh used to pass the required amount in cash through the Jain brothers to Havala operators., As enunciated in the case of Vijay Choudhary (supra), in the context of the allegation of money laundering, it has to be seen whether there is material to show that the aforesaid amounts, especially a sum of Rs.1.71 Crores transferred to the account of Shri Sai Shikshan Sanstha, partakes the character of proceeds of crime. In other words, whether the said amount was derived or obtained directly or indirectly as a result of criminal activity relating to the scheduled offences for which the Applicant and others are arraigned. In the Supplementary Prosecution Complaint, the prosecution has advanced a positive case that the said amount of Rs.1.71 Crores transferred during February and March 2021 (first component) forms part of the amount of Rs.4.70 Crores allegedly extorted by Mr. Sachin Waze from the bar owners and handed over to Mr. Kundan Shinde. This part of the allegation primarily rests on the claim of Mr. Sachin Waze., Mr. Chaudhary, learned counsel for the Applicant, urged that the statement of Mr. Sanjay Patil that Mr. Sachin Waze told him that the money was being collected for the then Commissioner of Police, and the owners of the bars, who categorically stated that in their estimation Number One in the police force was the Commissioner of Police, indicate that there is no link between the alleged criminal activities of Mr. Sachin Waze and the Applicant and the alleged proceeds of crime so collected by Mr. Sachin Waze and the amount credited to the account of Shri Sai Shikshan Sanstha., The statements of the bar owners do not appear to carry the matter any further as it is their assessment as to who the Number One was in the common parlance. Mr. Sanjay Patil, however, asserted that upon being inquired, Mr. Sachin Waze told him that Number One was the then Commissioner of Police. This statement of Mr. Sanjay Patil, in my view, is required to be considered in the context of the sequence of events. As it emerges from the record, Mr. Sanjay Patil's presence in the meeting of Mr. Sachin Waze with the representatives of the bar owners is stated to both by Mr. Sachin Waze and those representatives. He was the in‑charge of the Social Service Branch, which monitored the functioning of bars. The inquiry by Mr. Sanjay Patil as to for whom the amount was being collected was, in a sense, natural. At that point of time, when the extortion of money from the bar owners allegedly commenced, according to Mr. Patil, Mr. Sachin Waze disclosed that the money was being collected at the instance of the then Commissioner of Police., In the aforesaid view of the matter, the credibility of the accusation entirely hinges on the statements of Mr. Sachin Waze, the co‑accused, on both the points, as to at whose instance the money was collected and to whom the money, so collected, was allegedly delivered. The latter aspect, it appears, solely rests on the claim of Mr. Sachin Waze., During the course of the submissions, on instructions, the Special Court under the Prevention of Money Laundering Act, Mumbai was informed that Mr. Sachin Waze has been declared an approver by the Central Bureau of Investigation in the predicate offences, and in the instant case also, an application has been preferred by Mr. Sachin Waze to declare him as an approver and the Enforcement Directorate has given its no‑objection to the grant of the said prayer., As of now, the status of Mr. Sachin Waze is a co‑accused. The statements of Mr. Sachin Waze, banked upon by the prosecution, are but statements of a co‑accused. To what extent, even at this stage, the statements of a co‑accused can be used against another may warrant consideration. Even if it is assumed that the confession of a co‑accused can be used against another co‑accused, in the event of a joint trial, under Section 30 of the Indian Evidence Act, 1872, or in the event of grant of pardon, the co‑accused Mr. Sachin Waze deposes as an approver in favour of the prosecution; the question of reliability may arise in the light of the well‑recognised principles of law. Undoubtedly, that would be a matter for trial. But the character in which the statements are made by Mr. Sachin Waze and the credibility of the accusation therein qua the Applicant, in the light of the material on record, does bear upon the exercise of discretion while considering the prayer for bail., I propose to consider the credibility of the statements of Mr. Sachin Waze from two perspectives: (i) in the light of the multiple statements made by him, and (ii) whether any support or sustenance can be drawn to the statements of Mr. Sachin Waze from other quarters., As the starting point of the alleged demand to collect money from the bars and restaurants was allegedly in the meeting in October 2020 in which Mr. Karunakar Shetty had given the list of 1,750 bars and restaurants, the Special Court under the Prevention of Money Laundering Act, Mumbai inquired as to whether the statement of Mr. Karunakar Shetty was recorded. Mr. Anil Singh fairly tendered a copy of the statement of Mr. Karunakar Shetty which was recorded on 8th November 2021. It would be sufficient to note that Mr. Karunakar Shetty had a different tale to tell. He claimed to have met Mr. Sachin Waze once and, in the said meeting, the latter demanded Rs.10 Lakhs for unhindered functioning of his restaurants and bar till late hours. On the aspect of the delivery of the cash amount, there is a significant difference in the version of Mr. Sachin Waze in the confession made before the learned Magistrate. In the statement before the Enforcement Directorate, Mr. Sachin Waze claimed that he had received calls from the Applicant to deliver the cash amount to Mr. Kundan Shinde and the latter, thereafter, called him and collected the cash. In the confession before the learned Magistrate, Mr. Sachin Waze stated that he received a call from Mr. Kundan Shinde and, thereupon, went to the designated places and delivered the cash. No call was thus attributed to the Applicant before the delivery of the cash amount. This omission, prima facie, cannot be said to be innocuous. In a sense this runs against the claim of Mr. Sachin Waze of direct instructions by the Applicant to Mr. Sachin Waze, immediately before the alleged delivery of cash to Mr. Kundan Shinde., On the second aspect, as noted above, Mr. Sanjay Patil's statements run counter to the version of Mr. Sachin Waze as to the identity of the person for whom the amount was allegedly collected. As far as support sought to be drawn from the statement of Mr. Param Bir Singh, it is imperative to note that Mr. Sachin Waze claimed to have appraised Mr. Param Bir Singh that there was instruction from the Applicant to collect money from the bars/restaurants in February 2021, but he did not disclose that he was already collecting the amount. The claim that Mr. Sanjeev Palande had also asked Mr. Sanjay Patil and Mr. Raju Bhujbal to collect a sum of Rs.3 Lakhs per month from 1,750 bars/restaurants in a meeting of 4th March 2021, prima facie, does not seem to have been borne out by the statement of Mr. Sanjay Patil. A perusal of the statement of Mr. Sanjay Patil indicates that, in the said meeting, Mr. Sanjeev Palande inquired with Mr. Sanjay Patil as to whether such amount was being collected from the bars/restaurants., Without delving into the aspect of the alleged inconsistent statements made by Mr. Sachin Waze before other forums including the Justice Chandiwal Commission of Enquiry, where Mr. Sachin Waze allegedly disowned everything, the aforesaid material, prima facie, renders it unsafe to place reliance on the statement of Mr. Sachin Waze, a co‑accused, that cash amount was collected and delivered to Mr. Kundan Shinde at the instructions of the Applicant., Mr. Chaudhary's criticism of the credentials of Mr. Sachin Waze, in the light of the situation in which Mr. Sachin Waze finds himself, borne out by the material on record, may carry some substance. In the least, the tenure of Mr. 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 Criminal Revision No. 35 of 2021 for the alleged murder of a person in connection with the occurrence of a gelatin‑laden SUV. His statements were recorded by the Enforcement Directorate whilst he remained in the custody of the jurisdictional Court., All these factors, if considered on the anvil of the test enunciated in the case of Ranjitsingh Sharma (supra), may persuade the Special Court under the Prevention of Money Laundering Act, Mumbai to hold that, in all probabilities, the Applicant may not be ultimately convicted., The aforesaid consideration impels me to hold that the Applicant has succeeded in crossing the first hurdle. Satisfaction regarding the Applicant not committing the offence, while on bail, can be legitimately arrived at on the basis of the fact that there are no antecedents to the credit of the Applicant. Secondly, the substratum of the prosecution case is that it was the office of the Home Minister, which the Applicant abused to indulge in predicate offences. The Applicant has long been divested of the said office., There is another facet which deserves consideration. Inviting the attention of the Special Court under the Prevention of Money Laundering Act, Mumbai to the medical record, Mr. Chaudhary submitted that the Applicant is even otherwise entitled to be released on bail by invoking the first proviso to Section 45 of the Prevention of Money Laundering Act. Mr. Anil Singh, learned Additional Solicitor General, endeavoured to resist the prayer on the count that the application is not preferred on medical grounds. I am afraid it may not be proper to construe the first proviso to Section 45 in such a constricted way. The proviso can be taken into account even when the Court is considering the application for bail on merits and not necessarily only when the accused seeks bail on the grounds mentioned in the proviso., The first proviso to Section 45 reads as follows: 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 aforesaid proviso to Section 45 of the Prevention of Money Laundering Act appears to have been inserted by the legislature to mollify the rigour of the restrictions envisaged by the main part of sub‑section (1) of Section 45 of the Prevention of Money Laundering Act. It is pertinent to note that such a provision is not found in other statutes which contain identical restrictions, such as the Maharashtra Control of Organised Crime Act, the Narcotic Drugs and Psychotropic Substances Act and the Unlawful Activities (Prevention) Act. The intent of the legislature to vest discretion in the Court to grant bail despite the existence of the bar in the main part of sub‑section (1) of Section 45 is required to be given effect to. In my view, the proviso is required to be construed in such a manner that effect can be given to the main part of Section 45(1) as well as the discretion which the proviso vests in the Court., As a general rule, the proper function of a proviso is that it qualifies the generality of the enacting part by providing an exception and takes out, from the main enactment, a portion which, but for the proviso, would fall within the ambit of the enacting part. Normally a proviso is not construed in such a fashion as to completely nullify the main enactment. If it is held that the proviso can be resorted to only after the accused fully satisfies the twin conditions, then the proviso would be rendered otiose. Conversely, if it is held that if the personal attributes of an accused satisfy the requirement of the proviso, the accused can be released on bail, de hors the nature of the accusation and material in support thereof, e.g., in case of a woman accused, the main part of Section 45(1) would be rendered nugatory and the very object of insertion of twin conditions would be defeated. Steering clear of these two extremes, the exercise of judicious discretion, depending on the facts of the given case, appears to be the correct approach., In the case at hand, pursuant to the directions of the Special Court under the Prevention of Money Laundering Act, Mumbai, the Chief Medical Officer, Mumbai Central Prison, Mumbai submitted a report on 8th July 2022 wherein the Applicant was diagnosed as suffering from: irritable bowel with accelerated hypertension, known case of ischemic heart disease with bradycardia, chronic obstructive pulmonary disease, hyperlipidaemia, psoriasis, insomnia, recurrent bilateral shoulder dislocation and right lower‑limb radiculopathy., The health status as of that day of the Applicant was as follows: the patient is suffering from frequent episodes of loose motion, severe headache, chest‑pain episodes, high blood pressure, flared psoriasis, pain over the shoulder joint post‑dislocation, and tingling sensation over the right lower limb. At present he is managed conservatively on medications., Mr. Chaudhary further submitted that the Applicant had recent episodes of health scare. On 14th July 2022 the Applicant had a fall and shoulder dislocation and was advised a CT scan of the brain. On 26th August 2022 the Applicant was rushed to JJ Hospital as he had chest pain and a fall and was advised an MRI brain angiogram. Copies of the medical reports and certificates are placed on record in support of the submissions., The material on record indicates that the Applicant has been suffering from multiple ailments. He is 73 years of age. Few of the ailments may be classified as degenerative. The medical reports and certificates also show that the Applicant is suffering from chronic ailments. In the light of the material on record, it would be audacious to observe that the Applicant is not a sick person., Mr. Anil Singh submitted that all the necessary treatment has been provided to the Applicant and there is no material to show that the Applicant is suffering from a disease which cannot be treated at the prison hospital and, therefore, the Applicant does not deserve to be released on bail on medical grounds. Reliance was placed on the judgments of the Supreme Court in the cases of State of Uttar Pradesh v. Gayatri Prasad Prajapati and Pawan @ Tamatar v. Ram Prakash Pandey and Anr. to bolster the aforesaid submission., Evidently, the exercise of discretion on medical ground is rooted in the facts of a given case. In the case at hand, the Special Court under the Prevention of Money Laundering Act, Mumbai has considered the entitlement of the Applicant for bail on merits as well and found a prima facie case for the exercise of discretion. As the proviso empowers the Court to exercise discretion in favour of an accused who is otherwise sick or infirm, the Court has considered the material on record and finds, in the totality of the circumstances, a case for the exercise of discretion under the proviso as well., The Applicant appears to have roots in society. The possibility of fleeing away from justice seems remote. The apprehension on the part of the prosecution of tampering with evidence and threatening the witnesses can be taken care of by imposing appropriate conditions., The application, therefore, deserves to be allowed. Hence, the following order: (i) The application stands allowed. (ii) The Applicant, Anil V. Deshmukh, be released on bail on 62020 Supreme Court Cases online SC 843 furnishing a personal recognizance bond in the sum of Rs.1 Lakh and one or two sureties in the like amount to the satisfaction of the learned Judge, Prevention of Money Laundering Act, Mumbai. (iii) The Applicant shall report to the Office of the Enforcement Directorate on every Monday between 10.00 a.m. and 12.00 noon for a period of two months from the date of his release; thereafter, the Applicant shall report to the said office on every alternate Monday from 10.00 a.m. to 12.00 noon for the next four months. (iv) The Applicant shall attend each and every date of the proceedings before the Prevention of Money Laundering Act Court, Mumbai. (v) The Applicant shall remain within the jurisdiction of the Prevention of Money Laundering Act Court, i.e., Greater Mumbai, till the trial is concluded and shall not leave the area without prior permission of the Prevention of Money Laundering Act Court. (vi) The Applicant shall surrender his passport before the Prevention of Money Laundering Act Court, if not already surrendered. (vii) The Applicant shall not, either himself or through any other person, tamper with the prosecution evidence and give threats or inducement to any of the prosecution witnesses. (viii) The Applicant shall not indulge in any activities similar to the activities on the basis of which the Applicant stands prosecuted. (ix) The Applicant shall not try to establish communication with the co‑accused or any other person involved directly or indirectly in similar activities, through any mode of communication. (x) The Applicant shall cooperate with the expeditious disposal of the trial and, in case the delay is caused on account of any act or conduct of the Applicant, the bail shall be liable to be cancelled. (xi) In the event the Applicant violates any of the aforesaid conditions, the relief of bail granted by this Court shall be liable to be cancelled. (xii) After release of the Applicant on bail, he shall file an undertaking within two weeks before the Prevention of Money Laundering Act Court stating therein that he will strictly abide by the aforesaid conditions. (xiii) By way of abundant caution, it is clarified that the observations made in the order are limited to the consideration of the question of grant of bail and they shall not be construed as an expression of opinion which bears on the merits of the matter in this case as well as the prosecution for the predicate offences., At this stage, Mr. Anil Singh, learned Additional Solicitor General, seeks a stay to the execution and operation of this order as a number of issues were raised by the Respondent based on the judgments of the Supreme Court. It is further submitted that in view of the current holidays, it may not be possible to immediately move the Supreme Court. Mr. Nikam, learned counsel for the Applicant, resisted the prayer for stay. It is submitted that after a full‑fledged hearing, this Court has passed an order and there is no justification to stay the order of grant of bail. Since this Court has considered, inter alia, the aspect of proceeds of crime and the effect of the proviso to Section 45(1) of the Prevention of Money Laundering Act, the request for stay seems justifiable. As the Supreme Court will reopen on 10th October 2022, it would be expedient in the interest of justice to direct that the bail order shall become effective from 13th October 2022.
id_1234	0	Item No. 3 19 October 2020 (Video Conference) Writ Petition (Civil) Application 8520 of 2020 Ajay Kumar De v. The State of West Bengal & Ors. Petitioners: Bikash Ranjan Bhattacharyya, Sabyasachi Chatterjee for the petitioner. Respondents: Kishore Dutta, Ld Sayan Sinha for the State. The matter pertains to the bandobast during the Durga Puja celebrations that begin in right earnest later this week., The petitioner, who has applied in public interest, is concerned that the COVID‑19 protocol, particularly the physical‑distancing norm, may not be maintained at the Puja pandals in the State. If free access is permitted to the Puja pandals, particularly the more famous pujas in and around the city, the distancing norm can never be maintained. The petitioner apprehends that such a breach may lead to an uncontrollable spurt in COVID‑19 cases across the State. Ideally, strict restrictions on the conduct of Durga Puja should be placed by the State Government to ensure that there is no crowding. The petitioner claims that if the pujas were permitted to be low‑key affairs, with visitors not being permitted at the public pujas, there would be no fear of overcrowding or of the COVID‑19 protocol not being maintained. Photographs of crowds at marketplaces and at some of the Puja pandals have already been published in newspapers. The malaise extends to towns all over the State, where policing is much more diluted than in Kolkata. In district headquarters and sub‑divisional towns, where there is a nominal presence of police personnel, crowds have been building up over the last several days. Doctors across the State have expressed serious concern regarding the situation after the pujas if such uncontrolled gatherings are allowed and the COVID‑19 protocol is not followed., The State says that several special measures have been put in place. It refers to a Government memorandum of 28 September 2020 entitled General Guidelines for Durga Puja, 2020. All aspects have been covered in such guidelines and express directions have been issued in detail as to how entry and exit arrangements have to be made at Puja pandals, floor markings have to be placed and wearing of the mask is mandatory. Volunteers have been asked to be deployed at all pandals for ensuring compliance of physical‑distancing norms among visitors and advisories have also been issued regarding Anjali, Prasad Bitoran and Sindoor Khela, which are traditionally conducted during the puja. Cultural programmes have been altogether prohibited and inaugurations and immersions have been directed to be conducted on a low‑key. The State also refers to a book released by the Kolkata Police detailing the police arrangements during the Durga Puja and Lakshmi Puja, 2020., The Kolkata Police manual outlines the following measures: ensure proper physical distancing among viewers; maintain an adequate stock of face masks and hand sanitizers at the entry points of each pandal; all members, volunteers and police personnel on duty must wear face masks and face shields and maintain proper physical distancing while moving in the crowd; deploy an adequate number of volunteers, including females, for crowd control, queue management and traffic management; make round markings with permanent paint indicating where to stand in the queue; no one may gain access to the Puja pandals without a mask and must undergo hand sanitisation before entry; encourage wearing of face masks by donating masks to viewers who arrive without them; all police personnel will wear face masks, face shields, use hand sanitizer and maintain physical distance as per health guidelines; place barricades or guard rails in front of large gatherings or restrict free entry to maintain physical distancing; if possible, hold visitors in nearby open areas, roads or streets to minimise gathering inside the pandals., Notwithstanding the exemplary guidelines issued by the State and by Kolkata Police, there is no blueprint prepared for the implementation of the relevant measures. According to the State, there are around 3,000 pujas organised within the jurisdiction of Kolkata Police. Kolkata Police has about 25,000 personnel on its rolls and civic volunteers in Kolkata add up to another 12,000. Assuming 75 to 80 per cent of the entire staff are ordinarily available on any given day, about 30,000 to 32,000 personnel may be present on duty during the pujas. In some major pujas more than 200 police personnel have been proposed to be deployed and elsewhere the deployment ranges between 20 and 100. It is inconceivable that Kolkata Police will have enough personnel to man more than 3,000 pujas held within its jurisdiction, to meaningfully control the massive crowds expected, to manage traffic, attend to other law‑and‑order problems and continue the usual investigation work. Even if personal security officers allotted for VVIP security are withdrawn during the pujas, VIP security cannot be completely absent. If Kolkata Police does not have adequate personnel to manage more than 3,000 pujas, the State Police can scarcely be expected to control the crowds at the 31,000 other pujas in the districts across the State. The State had submitted that Rupees 170 crore had been distributed to 34,000 puja organisers in the State, including the 3,000 puja organisers within the jurisdiction of Kolkata Police., In public interest, all pandals where Durga Puja is being celebrated this year are made no‑entry zones for members of the public. For smaller pandals, a five‑metre zone beyond the extremities of the pandal on all sides, and for larger pandals, a ten‑metre zone beyond the extremities of the pandal on all sides, will be part of the no‑entry zone. The only exception will be for named personnel, including the priest, who will be identified by the puja organisers in advance and whose names will be displayed for checks at any point of time. At the smaller pandals, fifteen persons will be named in the list who may have access to the no‑entry zone at all times; the number will be twenty‑five to thirty for the bigger pandals. These directions will apply to all public puja pandals all over the State, including the 34,000 pujas which have obtained grants from the State. The local police administration will identify which pandals are to be regarded as small pandals for the restricted zone of five metres and which are larger pandals requiring a ten‑metre distance., The Commissioner of Kolkata Police and the Director General of Police, West Bengal will file affidavits indicating compliance with the directions contained herein. Such affidavits should be emailed to the Registrar‑General by 5 November 2020. The State seeks a stay of operation of this order; the prayer is unhesitatingly declined. Writ Petition (Civil) Application 8520 of 2020 is disposed of without any order as to costs. An urgent certified website copy of this order, if supplied for, shall be made available to the parties upon compliance with all requisite formalities.
id_1236	0	Serial No. 01 Regular List Public Interest Litigation No. 6/2021 Date of Order: 23 June 2021 Registrar General versus State of Meghalaya High Court of Meghalaya Coram: Honorable Mr. Justice Biswanath Somadder, Chief Justice Honorable Mr. Justice H. S. Thangkhiew, Judge Appearance: For the Petitioner/Appellant(s): Mr. A. Kumar, Advocate General with Mr. A. H. Kharwanlang, Government Advocate, Mr. Chetan Joshi, Advocate, Mr. Shaurya Sahay, Advocate, Mr. Aditya Shankar Pandey, Advocate Whether approved for reporting in law journals etc.: No Whether approved for publication in press: Yes Judgment (per Biswanath Somadder, the Honorable, the Chief Justice), It has been brought to the notice of this High Court that the State of Meghalaya, through various orders of the Deputy Commissioners, has made it mandatory for shopkeepers, vendors, local taxi drivers and others to get themselves vaccinated before they can resume their businesses. Whether vaccination can at all be made mandatory and whether such mandatory action can adversely affect the right of a citizen to earn his or her livelihood is an issue which requires consideration. At the outset, it must be stated clearly and unequivocally that vaccination is need of the hour, an absolute necessity in order to overcome this global pandemic which is engulfing our world. However, the issue, as stated in the earlier paragraph, requires to be clearly answered. In order to answer the issue, at first, we need to look at certain fundamental principles which govern the field. Article 21 encompasses within its fold the right to health as a fundamental right. By that same analogy, the right to health care, which includes vaccination, is a fundamental right. However, vaccination by force or being made mandatory by adopting coercive methods vitiates the very fundamental purpose of the welfare attached to it. It impinges on the fundamental right(s) as such, especially when it affects the right to means of livelihood which makes it possible for a person to live. As held in Olga Tellis & Ors. vs. Bombay Municipal Corporation & Ors. reported at AIR 1986 SC 180 = (1985) 3 SCC 545, the right to life includes the right to the means of livelihood. Any action of the State which is in absolute derogation of this basic principle is squarely affected by Article 19(1)(g). Although Article 19(6) prescribes reasonable restrictions in the interest of the general public, the present instance is exemplary and clearly distinguishable. It affects an individual's right, choice and liberty significantly more than affecting the general public as such or, for that matter, the latter's interests being at stake because of the autonomous decision of an individual human being of choosing not to be vaccinated. It is more about striking the right balance between an individual's right vis‑vis the right of the public at large. However, in substantiation of Mill's theory of the liberty to exercise one's right until it impinges on the right of another, here the welfare state is attempting to secure the rights of others, which though legitimate is palpably excessive owing to the procedure adopted by it. Another pivotal question emerges as to whether any notification or order published by the State Government and/or its authority can be understood as a prescription by law for the purposes of prohibiting a greater degree of rights, i.e., fundamental rights. In other words, can a State Government and/or its authority issue any notification or order which is likely to have a direct effect on the fundamental rights of its citizens especially on a subject matter that concerns both public health and the fundamental rights of the individual person. The issue here essentially centres around a question on the law‑making power of the State Government, which, even though permitted by Entry 6, List II of the Seventh Schedule, has to be in consonance with the fundamental right to life and livelihood of an individual. In this case, there is a clear lack of legitimacy in prohibiting freedom of carrying on any occupation, trade or business amongst a certain category or class of citizens who are otherwise entitled to do so, making the notification or order ill‑conceived, arbitrary and/or a colourable exercise of power. A notification or order of the State certainly cannot put an embargo and/or fetter on the fundamental right to life of an individual by stripping off his or her right to livelihood, except according to the procedure established by law. Even that procedure is required to be reasonable, just and fair (see Olga Tellis, supra). Till now, there has been no legal mandate whatsoever with regard to coercive or mandatory vaccination in general and the Covid‑19 vaccination drive in particular that can prohibit or take away the livelihood of a citizen on that ground., In the frequently asked questions (FAQs) on Covid‑19 vaccine prepared and uploaded by the Ministry of Health and Family Welfare, Government of India, on its official website, the question which appears under serial number 3 reads, \Is it mandatory to take the vaccine?\ The potential response provided on the official website reads, \Vaccination for Covid‑19 is voluntary. However, it is advisable to receive the complete schedule of Covid‑19 vaccine for protecting oneself against this disease and also to limit the spread of this disease to close contacts including family members, friends, relatives and co‑workers.\ In this context, around one hundred and seven (107) years ago, in Schloendroff v. Society of New York Hospitals reported at (1914) 211 NY 125 = 105 NE 92; 1914 NY Justice Cardozo ruled that every human being of adult years and sound mind has a right to determine what shall be done with their body. Thus, by use of force or through deception if an unwilling capable adult is made to have the flu vaccine it would be considered both a crime and a tort or civil wrong, as was ruled in Airedale NHS Trust v. Bland reported at 1993 AC 789 = (1993) 2 WLR 316 = (1993) 1 All ER 821, around thirty (30) years ago. Thus, the coercive element of vaccination has, since the early phases of the initiation of vaccination as a preventive measure against several diseases, been time and again not only discouraged but also consistently ruled against by the Courts for over more than a century., There are several ambiguities on the procedural and substantive aspects of the concerned notification or order. Doubts are cast on whether coercive assertion of one’s fundamental right can tend to abrogate another’s equally placed fundamental right. A question also arises whether a fundamental right can be forcefully imposed even if the beneficiary is not inclined to its exercise, because if the latter is undertaken there is a risk of infringing on the fundamental right to privacy and exercise of personal liberty. Furthermore, whether to subject oneself to an intrusion of his or her body, even if of minor intensity, e.g., through a needle, concerns issues of personal and bodily autonomy and bodily integrity, similar to abortion rights or non‑sterilisation rights or even sex reassignment surgeries, irrespective of what consequences the individual might be inviting. This finds mention in decisions of the European Commission and Court of Human Rights (X vs. Netherlands of 1978 (decision rendered on 4 December 1978); X vs. Austria of 1979 (decision rendered on 13 December 1979)) which has become truer in the present times across the world than ever before. Compulsory administration of a vaccine without hampering one’s right to life and liberty based on informed choice and informed consent is one thing. However, if any compulsory vaccination drive is coercive by its very nature and spirit, it assumes a different proportion and character. In our view, the burden lies on the State to disseminate and sensitize the citizens of the entire exercise of vaccination with its pros and cons and facilitate informed decision‑making particularly in a situation where the beneficiaries are skeptical, susceptible and belonging to vulnerable/marginalised sections of the society, some of whom are also gullible members of the indigenous communities who are constantly being fed with deliberate misinformation regarding the efficacy of vaccination by some persons or organisations with oblique motives., The welfare nature of the State is not for coercive negative reinforcement by seizing the right to livelihood, proscribing individuals to earn from their occupation or profession without any justification in the garb of public interest, but lies in walking together with concerted efforts attempting to effectuate a social order as mandated under Article 38 by approaching the people directly through one‑to‑one dialogues and dwelling on the efficiency and the positive aspects of administering the vaccine without compromising its duty under Article 47 nor abrogating its duty to secure adequate means of livelihood under Article 39(a). Therefore, the right to and the welfare policy for vaccination can never affect a major fundamental right, i.e., the right to life, personal liberty and livelihood, especially when there exists no reasonable nexus between vaccination and prohibition of continuance of occupation or profession. A harmonious and purposive construction of the provisions of law and principles of equity, good conscience and justice reveals that mandatory or forceful vaccination does not find any force in law leading to such acts being liable to be declared ultra vires ab initio., At this stage, the learned Advocate General draws our attention to certain guidelines issued by the Principal Secretary to the Government of Meghalaya, Health and Family Welfare Department, on 22 June 2021, to all the Deputy Commissioners of the districts of Meghalaya on the measures required to be taken by the districts for addressing the issue of vaccine hesitancy. The Principal Secretary has observed that for public health administration, indigenous states like Meghalaya pose distinct challenges while mobilising people and introducing any new interventions. In such situations, the approach towards effecting any kind of behavioural change needs to be adaptive in nature, meaning thereby that the people need to be mobilised and convinced to see the impact of the new intervention for greater acceptance among the communities. It has also been advised that the orders in the districts have to be seen as a persuasive advisory and not as a coercion with regard to the issue of vaccination. The Principal Secretary, while issuing the guidelines dated 22 June 2021, has laid down seven points that are required to be considered for effecting change in Covid‑19 vaccine compliance in the respective districts of Meghalaya. The Principal Secretary has clearly stated that the existing orders on vaccine compliance may be modified in the light of the new policy directions as spelt out in the guidelines dated 22 June 2021 and the requirement of vaccination should be directory and not mandatory. This, in our view, is a step in the right direction. The learned Advocate General has further placed an order issued by the Deputy Commissioner, East Khasi Hills District, Shillong, on 22 June 2021, following the new guidelines. A plain reading of this order reveals the same to be quite in sync with the observations made hereinbefore by this High Court read with the new guidelines issued yesterday by the Principal Secretary, Government of Meghalaya, Health and Family Welfare Department. We are of the view that this order is required to be complied with by all shops, establishments, local taxis, auto‑rickshaws, maxi cabs and buses forthwith., In addition thereto, we issue the following directions so that the public at large are provided with an option of making an informed choice: (i) All shops, establishments, local taxis, auto‑rickshaws, maxi cabs and buses should display prominently at a conspicuous place a sign, VACCINATED, in the event all employees and staff of the concerned shop or establishment are vaccinated. Similarly, in the case of local taxis, auto‑rickshaws, maxi cabs and buses where the concerned driver or conductor or helper(s) are vaccinated. (ii) All shops, establishments, local taxis, auto‑rickshaws, maxi cabs and buses should display prominently at a conspicuous place a sign, NOT VACCINATED, in the event all the employees and staff of the concerned shop or establishment are not vaccinated. Similarly, in the case of local taxis, auto‑rickshaws, maxi cabs and buses where the concerned driver or conductor or helper(s) are not vaccinated. The actual dimension of the signs, VACCINATED or NOT VACCINATED, and the conspicuous place where such sign is required to be affixed or displayed shall be decided by the concerned authority of the State. In the event any shop, establishment, local taxi, auto‑rickshaw, maxi cab or bus flouts the above directions, the concerned authority of the State shall immediately direct its closure or stoppage of plying., So far as the vaccine hesitation issue is concerned, the same is required to be dealt with by the State Government in the manner specified in its new guidelines issued yesterday by the Principal Secretary, Health and Family Welfare Department, Government of Meghalaya, read with the observations made by us hereinbefore. This High Court shall monitor this issue closely so that the State Government is able to overcome the vaccine hesitation problem at the earliest and all eligible persons in the State of Meghalaya are vaccinated well within the timeframe as may be specified by the State. In the event there is any attempt made by any person or organisation to spread misinformation regarding the efficacy of vaccination amongst the people of this State, the concerned authority of the State shall immediately step in and proceed against such person or organisation in accordance with law. The concerned authority of the State shall also bring such instances to the notice of this High Court. So far as the other issue with regard to the method of implementation of the Government Welfare Schemes meant for the marginalised section of the society is concerned, the learned Advocate General has placed an order dated 22 June 2021, issued by the Chief Secretary to the Government of Meghalaya. We request the learned Registrar General to intimate the Member Secretary of the Meghalaya State Legal Services Authority, Shillong, with regard to the said order dated 22 June 2021. The Member Secretary of the Meghalaya State Legal Services Authority, Shillong, shall bring the said order to the notice of all the Secretaries of the District State Legal Services Authorities in the State of Meghalaya who shall enquire and find out as to whether the concerned departments are actually taking steps to ensure that the Government Welfare Schemes for the marginalised section of the society are being properly and effectively implemented in a time‑bound manner in accordance with the guidelines of the respective schemes. The Secretaries of all the District State Legal Services Authorities shall submit their respective reports to the Member Secretary, Meghalaya State Legal Services Authority, Shillong, within a period of four weeks from date so that the Member Secretary can compile the same and place the compilation before this High Court through the learned Registrar General. List this matter next Wednesday, i.e., 30 June 2021, for further consideration.
id_1238	0	Shailaja / Uday Jagtap Venugopal Nandlal Dhoot, lodged at Arthur Road Jail, is the petitioner. The Central Bureau of Investigation, Banking Securities and Fraud Branch, is respondent 1. The State of Maharashtra is respondent 2. Mr. Sandeep S. Ladda, along with Ishani Khanwilkar, Viral Babar, Adnan A. Ansari, Adesh Jadhav and Sarvesh Dixit, appear for the petitioner. Mr. Raja Thakare, Senior Advocate, along with Mr. Kuldeep Patil, Ms. Saili Dhuru, Akash Kavade and Siddharth Jagushte, appear for the respondent. Ms. P. P. Shinde, A.P. P., appear for respondent No.2 – State., By this petition, under Article 226 of the Constitution of India and under section 482 of the Code of Criminal Procedure, 1973 (CrPC), the petitioner has made the following prayers: (a) That the Hon'ble High Court of Bombay be pleased to quash and/or set aside the FIR RCBD1/2019/E/001 dated 22nd January 2019 under sections 7 and 13(2) read with 13(1) and (d) of the Prevention of Corruption Act, sections 420 and 120B of the Indian Penal Code, being investigated by the Central Bureau of Investigation, and that further investigation be stayed; (b) That the Hon'ble High Court of Bombay be pleased to issue a writ of certiorari or a writ in the nature of certiorari, or any other appropriate writ, order or direction under Articles 226/227 of the Constitution of India, quashing and/or setting aside the orders of the City Civil and Sessions Court, Central Bureau of Investigation Special Judge dated 26th December 2022, 28th December 2022 and 29th December 2022 in FIR RCBD1/2019/E/001 dated 22nd January 2019 under sections 7 and 13(2) read with 13(1) and (d) of the Prevention of Corruption Act, sections 420 and 120B of the Indian Penal Code, being investigated by the Central Bureau of Investigation; (c) That the Hon'ble High Court of Bombay be pleased to declare that the arrest and remand to custody of the petitioner was arbitrary, illegal, without following due procedure of law and in gross violation of Sections 41 and 41A of the Code of Criminal Procedure and Articles 14, 19(1)(d) and 21 of the Constitution of India; (d) That pending hearing and final disposal of the present petition, the Hon'ble High Court of Bombay be pleased to stay the operation of the orders of the City Civil and Sessions Court, Central Bureau of Investigation Special Judge, Mumbai dated 26th December 2022, 28th December 2022 and 29th December 2022 in R.A. No.1271/2022 pursuant to FIR RCBD1/2019/E/001 dated 22nd January 2019 under sections 7 and 13(2) read with 13(1) and (d) of the Prevention of Corruption Act, sections 420 and 120B of the Indian Penal Code, being investigated by the Central Bureau of Investigation, against the petitioner and release the petitioner on bail on such terms and conditions as the Hon'ble High Court of Bombay may deem fit, necessary and/or proper in the facts and circumstances of the present case., By way of interim relief, the petitioner seeks his release from custody, pending the hearing and final disposal of the petition. Learned counsel for the petitioner, Mr. Sandeep S. Ladda, and learned Special Public Prosecutor, Mr. Raja Thakare, have restricted their arguments only to prayer clause (c) of the petition. A few facts germane for considering grant of interim relief are as follows., The petitioner is the former Chairman and Managing Director of the Videocon Group of Companies. On 22nd January 2019, a case was registered against Videocon International Electronics Limited, Videocon Industries Limited, the petitioner Venugopal Nandlal Dhoot, Smt. Chanda Kochhar, Shri Deepak Virendra Kochhar, M/s. NuPower Renewables Limited, M/s. Supreme Energy Private Limited, along with some unknown private persons and unknown public servants under section 120B read with section 420 of the Indian Penal Code and under sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act., An FIR was registered on the basis of a preliminary inquiry conducted by the Central Bureau of Investigation, bearing PEBD1/2017/E/0001 dated 8th December 2017 at New Delhi against the accused persons on the premise that during the year 2011-2012, credit facilities of about Rs. 3,250 crore were sanctioned by ICICI Bank in violation of banking regulations and the bank's credit policy to M/s. Trend Electronics Limited, M/s. Century Appliances Limited, M/s. Kail Limited, M/s. Value Industries Limited and M/s. Evan Fraser & Co., India Limited. All companies belonging to the Videocon Group were promoted by the petitioner., On 31st January 2019, ECIR/02/HIU of 2019 was registered by the Directorate of Enforcement, New Delhi against the petitioner, Smt. Chanda Kochhar and Shri Deepak Virendra Kochhar. The petitioner was summoned by the Directorate of Enforcement and the Central Bureau of Investigation. In February 2021, the Directorate of Enforcement completed its investigation and filed a prosecution complaint without arresting the petitioner., On 12th March 2021, the Sessions Court granted bail to the petitioner in the PMLA Special Case No.915 of 2020. The petitioner was summoned by the Central Bureau of Investigation repeatedly since 2017 for the purpose of investigation. On 15th December 2022, the Central Bureau of Investigation issued a notice under section 41A of the Code of Criminal Procedure calling upon the petitioner to appear at its office in New Delhi on 19th December 2022 for questioning in the matter of the aforesaid FIR. The petitioner sent a WhatsApp message to the investigating officer, Mr. Nitesh Kumar, informing him of his correct email ID and requested to send a summons to attend the office on 21st December 2022 instead of 19th December 2022 due to his medically pre‑scheduled appointments., The petitioner attended the office of the Central Bureau of Investigation at New Delhi on 21st December 2022. However, he was asked to attend the office on 22nd December 2022, which he did. He was again summoned on 23rd December 2022, but since he was already called by the Directorate of Enforcement on that date, he informed the investigating officer of the Central Bureau of Investigation via WhatsApp to that effect., Meanwhile, on 23rd December 2022, other accused named in the FIR, namely Smt. Chanda Kochhar and Shri Deepak Virendra Kochhar, were arrested by the Central Bureau of Investigation pursuant to an order of the City Civil Court. On 24th December 2022, the Central Bureau of Investigation issued a notice under section 41A of the Code of Criminal Procedure summoning the petitioner to appear before its office in Mumbai on 25th December 2022. A notice was pasted on the wall of the petitioner's office building in Mumbai. The petitioner resides in Aurangabad. Upon learning of the notice, he addressed an email to the Central Bureau of Investigation in response to the notice dated 24th December 2022, informing that he had learned about the notice under section 41A for his appearance on Sunday, 25th December 2022., On 25th December 2022, the Central Bureau of Investigation issued a notice under section 41A of the Code of Criminal Procedure calling upon the petitioner to appear at its office in Mumbai on 26th December 2022 at 9.00 a.m. for questioning in the subject FIR. When the petitioner appeared at the Central Bureau of Investigation office in Mumbai on 26th December 2022 at 9.00 a.m., he was made to undergo an RTPCR test. After that, the petitioner was arrested by the Central Bureau of Investigation. He was produced before the Special Judge, Central Bureau of Investigation, City Civil and Sessions Court, Mumbai on the same day., The petitioner's advocate moved two applications for declaring the arrest of the petitioner illegal and to grant ad‑interim bail for non‑compliance of due procedure under section 41A of the Code of Criminal Procedure and to provide the petitioner necessary medication. The learned Special Judge, Central Bureau of Investigation, however, declared the petitioner's arrest legal by remanding him to the custody of the Central Bureau of Investigation till 29th December 2022. By an order dated 29th December 2022, the Special Judge, Central Bureau of Investigation, Mumbai extended the petitioner's remand till 10th January 2023. The Special Judge, Central Bureau of Investigation, City Civil and Sessions Court, Mumbai, on 5th January 2023 considered the petitioner's application challenging the arrest under sections 41 and 41A of the Code of Criminal Procedure and rejected the same, stating that the application had become infructuous., We have heard Mr. Sandeep S. Ladda, learned counsel for the petitioner, and Mr. Raja Thakare, learned Special Public Prosecutor, for respondent No.1., Learned counsel for the petitioner has invited our attention to the application seeking police (Central Bureau of Investigation) custody remand of the petitioner by the respondent, particularly paragraph 9 of the application, which reads: “That today FIR named accused Shri V.N. Dhoot, Managing Director of Videocon Group (A‑3), has been arrested, as he has not been cooperating with the investigation and despite issue of notices under section 41A of the Code of Criminal Procedure, he did not appear before the investigating officer on 23.12.2022 and 25.12.2022. Further, there is inconsistency in his statement (Arrest Memo and personal search memo enclosed). Medical examination of Shri V.N. Dhoot (A‑3) has been conducted through a Government Medical Officer (Medical Report enclosed). He is produced before this Hon'ble High Court of Bombay.”, The counsel would submit that the application does not indicate that the petitioner failed to appear before the respondent. The investigating officer had merely stated that the petitioner had not been cooperating with the investigation, without providing detailed particulars of any non‑co‑operation. There are no particulars regarding the alleged inconsistencies in the statements. The learned Special Judge, Central Bureau of Investigation, according to the counsel, has grossly erred in not adhering to the mandate of the Supreme Court in the cases of Arnesh Kumar v. State of Bihar and Satender Kumar Antil v. Central Bureau of Investigation. The arrest and consequent remand of the petitioner to the custody of respondent No.1 is in total violation of the tenets of the Code of Criminal Procedure and the procedure prescribed in sections 41 and 41A of the Code of Criminal Procedure. The counsel would argue that the impugned orders passed by the Special Judge, Central Bureau of Investigation, are mechanical, lacking application of mind and in violation of principles of natural justice. The counsel would also submit that the remand application dated 26th December 2022 does not give particulars as to what full and true facts were not disclosed by the petitioner for the purpose of proper investigation and for taking the case to its logical end. The counsel would emphasize that since the notice under section 41A of the Code of Criminal Procedure was issued, which indicates that the respondent did not intend to arrest the petitioner, the counsel prays for the grant of interim bail to the petitioner., Mr. Raja Thakare, learned Special Public Prosecutor appearing for respondent No.1, would submit that the cases investigated by the Directorate of Enforcement are altogether on a different footing, being only in respect of money laundering, whereas the investigation by the Central Bureau of Investigation is on a larger canvass, especially when section 120B of the Indian Penal Code and the sections under the Prevention of Corruption Act are invoked. According to Mr. Thakare, the magnitude and dimensions of the offences and their investigation require sufficient time and the investigating agency is required to unearth and investigate each financial aspect in a meticulous manner. There are innumerable transactions in the case. It is therefore obvious that the investigating agency would require considerable time to collect the entire material, which had already started in the year 2019. Accordingly, he justified the arrest of the petitioner after three years. Mr. Thakare further states that had the petitioner been arrested in 2019, the investigating agency could not have completed its investigation effectively and meaningfully within ninety days, resulting in the petitioner securing default bail., Mr. Raja Thakare would further submit that during investigation, evidence is required to be collected. During interrogation, a series of questions are put to the accused who are placed in custody for a considerable period of time and they are subjected to questioning in an aggressive manner. Mr. Thakare has invited our attention to the impugned order dated 26th December 2022 justifying the observations made by the learned judge who had carefully gone through the case diary and rightly remanded the petitioner in the custody of respondent No.1 till 28th December 2022 in view of the fact that he had not been cooperating with the investigating agency despite receiving several notices to attend the investigation. The learned judge, inter alia, observed that there was due compliance with the provisions of sections 41 and 41A of the Code of Criminal Procedure. Mr. Thakare has placed reliance upon a judgment of the Supreme Court in the case of State represented by the Central Bureau of Investigation v. Anil Sharma. He invited our attention to paragraph 6 of the said judgment, which is extracted below:, We find force in the submission of the Central Bureau of Investigation that custodial interrogation is qualitatively more elicitation‑oriented than questioning a suspect who is well ensconced with a favorable order under section 438 of the Code. In a case like this, effective interrogation of the suspected person is of tremendous advantage in uncovering many useful informations and materials which would have been concealed. Such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre‑arrest bail during the time he is interrogated. Very often, interrogation in such a condition would reduce to a mere ritual. The argument that custodial interrogation is fraught with the danger of the person being subjected to third‑degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of uncovering offences would not conduct themselves as offenders., It is submitted that on 22nd December 2022, the petitioner could not be confronted before the other accused, namely Smt. Chanda Kochhar and Shri Deepak Kochhar, since the petitioner remained absent on 23rd December 2022 and also on 25th December 2022. However, on 26th and 27th December 2022, the petitioner and the Kochhars were confronted before each other. Accordingly, Mr. Thakare strongly objected to granting any interim relief to the petitioner., As noted earlier and as agreed between the learned counsel for the parties, this petition is heard only on the limited point of interim relief sought, i.e., for interim bail on the premise that the petitioner's arrest and detention with respondent No.1 is in contravention of the statutory provisions and the guidelines enunciated in the judgments of Arnesh Kumar and Satender Kumar Antil., Before we proceed to decide whether the petitioner's arrest and consequent remand is in consonance with sections 41 and 41A of the Code of Criminal Procedure, it is apposite to reproduce the relevant provisions. Section 41. When police may arrest without warrant – (1) Any police officer may, without an order from a Magistrate and without a warrant, arrest any person (a) who commits, in the presence of a police officer, a cognizable offence; (b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine, if the following conditions are satisfied, namely: (i) the police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence; (ii) the police officer is satisfied that such arrest is necessary (a) to prevent such person from committing any further offence; or (b) for proper investigation of the offence; or (c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) to prevent such person from making 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 the police officer; or (e) unless such person is arrested, his presence in the Court whenever required cannot be ensured; and the police officer shall record, while making such arrest, his reasons in writing. Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub‑section, record the reasons in writing for not making the arrest. (ba) against whom credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term which may extend to more than seven years, whether with or without fine or with death sentence, and the police officer has reason to believe on the basis of that information that such person has committed the said offence; (c) who has been proclaimed as an offender either under this Code or by order of the State Government; (d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; (e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; (f) who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; (g) who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in any act committed at any place outside India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in India; (h) who, being a released convict, commits a breach of any rule made under sub‑section (5) of section 356; or (i) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Subject to the provisions of section 42, no person concerned in a non‑cognizable offence or against whom a complaint has been made or credible information has been received or reasonable suspicion exists of his having so concerned shall be arrested except under a warrant or order of a Magistrate., Section 41A. Notice of appearance before police officer – (1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub‑section (1) of section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested. (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent court in this behalf, arrest him for the offence mentioned in the notice., Section 46. Arrest how made – (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there is a submission to custody by word or action. Provided that where a woman is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest shall be presumed and, unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the woman for making her arrest. (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life. (4) Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made., Section 60A. Arrests to be made strictly according to the Code – No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest., The Apex Court in the case of Satender Kumar Antil has issued certain directions to investigating agencies and the courts; discussed arrest in cognizable offences, the mandate of Section 41, the effect of its non‑compliance while considering bail applications; issued directions to ensure that police officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically; held that Sections 41 and 41A are facets of Article 21 of the Constitution; and issued certain guidelines for avoiding unwarranted arrest, amongst other observations., The relevant paragraphs of Satender Kumar Antil, with which we are concerned, are reproduced herein: This provision mandates the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty‑bound to record the reasons for arrest in writing. Similarly, the police officer shall record reasons when he/she chooses not to arrest. There is no requirement of the aforesaid procedure when the offence alleged is punishable with imprisonment of more than seven years, among other reasons., The consequence of non‑compliance with Section 41 shall certainly enure to the benefit of the person suspected of the offence. Consequently, while considering an application for enlargement of bail, courts will have to satisfy themselves on the due compliance of this provision. Any non‑compliance would entitle the accused to a grant of bail. Section 41A deals with the procedure for appearance before the police officer who is required to issue a notice to the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, and arrest is not required under Section 41(1). Section 41B deals with the procedure of arrest along with the mandatory duty on the part of the officer., On the scope and objective of Sections 41 and 41A, it is obvious that they are facets of Article 21 of the Constitution. In light of the judgment of this Court in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, with or without fine, cannot be arrested by the police officer solely on his satisfaction that such person had committed the offence. The police officer, before arrest, must be further satisfied that such arrest is necessary to prevent the person from committing any further offence; for proper investigation of the case; to prevent the accused from causing the evidence of the offence to disappear or tampering with such evidence; to prevent the person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless the accused is arrested, his presence in court whenever required cannot be ensured. The law mandates the police officer to state the facts and record the reasons in writing which led him to the conclusion covered by any of the provisions, while making such arrest, and also to record reasons for not making the arrest. In essence, before arrest the police officer must ask himself why arrest, whether it is really required, what purpose it will serve, and what object it will achieve. Only after these questions are addressed and one or more conditions enumerated above are satisfied, the power of arrest may be exercised. The police officer should have reason to believe, on the basis of information and material, that the accused has committed the offence, and must be further satisfied that the arrest is necessary for one or more of the purposes envisaged by sub‑clauses (a) to (e) of clause (1) of Section 41 CrPC., An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57 of the Code of Criminal Procedure to be produced before the Magistrate without unnecessary delay and in no circumstances beyond twenty‑four hours, excluding the time necessary for the journey. Before a Magistrate authorises detention under Section 19 of Chapter XVII of the Code of Criminal Procedure, he must first be satisfied that the arrest made is legal and in accordance with law and that all constitutional rights of the person arrested are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, the Magistrate is duty‑bound not to authorise further detention and must release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish the Magistrate with the facts, reasons and conclusions for the arrest, and the Magistrate must be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied before authorising detention., The Magistrate, before authorising detention, will record his own satisfaction, which may be brief but must be reflected in his order. It shall never be based upon the ipse dixit of the police officer; for example, if the police officer considers the arrest necessary to prevent further offence, for proper investigation, or to prevent tampering with evidence or inducement, the police officer shall furnish the Magistrate with the facts, reasons and material on the basis of which the conclusion was reached. The Magistrate will peruse these before authorising detention and will record his satisfaction in writing before authorising detention of the accused., The aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) CrPC, the police officer is required to issue a notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and further mandates that if the accused complies with the terms of the notice he shall not be arrested, unless for reasons to be recorded the police officer is of the opinion that arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC must be complied with and shall be subject to the same scrutiny by the Magistrate., Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and magistrates do not authorise detention casually and mechanically. In order to ensure the above, we give the following directions: (1) All State Governments shall instruct their police officers not to automatically arrest when a case under Section 498A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down in Section 41 of the Code of Criminal Procedure; (2) All police officers shall be provided with a checklist containing the specified sub‑clauses under Section 41(1)(b); (3) The police officer shall forward the checklist duly filled and furnish the reasons and material which necessitated the arrest while forwarding/producing the accused before the Magistrate for further detention; (4) The Magistrate, while authorising detention of the accused, shall peruse the report furnished by the police officer as aforesaid and, only after recording his satisfaction, shall authorise detention; (5) The decision not to arrest an accused shall be forwarded to the Magistrate within two weeks from the date of institution of the case, with a copy to the Magistrate, which may be extended by the Superintendent of Police of the district for reasons to be recorded in writing; (6) Notice of appearance in terms of Section 41A of the Code of Criminal Procedure shall be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for reasons to be recorded in writing.
id_1238	1	Failure to comply with the directions aforesaid shall, apart from rendering the police officers concerned liable for departmental action, also make them liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court., The directions aforesaid shall not only apply to the cases under Section 498-A of the Indian Penal Code or Section 4 of the Dowry Prohibition Act, but also to cases where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine., We reiterate that the directions aforesaid ought to be complied with in letter and spirit by the investigating and prosecuting agencies, while the view expressed by us on the non‑compliance of Section 41 and the consequences that flow from it has to be kept in mind by the Supreme Court of India, which is expected to be reflected in the orders., Despite the dictum of the Supreme Court of India in Arnesh Kumar (supra), no concrete step has been taken to comply with the mandate of Section 41A of the Code. The Supreme Court of India has clearly interpreted Section 41(1)(b)(i) and (ii) inter alia holding that, notwithstanding the existence of a reason to believe qua a police officer, the satisfaction for the need to arrest shall also be present. Thus, sub‑clause (1)(b)(i) of Section 41 has to be read along with sub‑clause (ii) and therefore both the elements of reason to believe and satisfaction qua an arrest are mandated and accordingly are to be recorded by the police officer., We also expect the courts to come down heavily on the officers effecting arrest without due compliance of Section 41 and Section 41A. We express our hope that the Investigating Agencies would keep in mind the law laid down in Arnesh Kumar (supra), the discretion to be exercised on the touchstone of presumption of innocence, and the safeguards provided under Section 41, since an arrest is not mandatory. If discretion is exercised to effect such an arrest, there shall be procedural compliance. Our view is also reflected by the interpretation of the specific provision under Section 60A of the Code which warrants the officer concerned to make the arrest strictly in accordance with the Code., In conclusion, we issue certain directions meant for the investigating agencies and also for the courts, subject to State amendments. The investigating agencies and their officers are duty‑bound to comply with the mandate of Section 41 and Section 41A of the Code and the directions issued by this Supreme Court of India in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action., The courts will have to satisfy themselves on the compliance of Section 41 and Section 41A of the Code. Any non‑compliance would entitle the accused to the grant of bail., In Arnab Manoranjan Goswami v. State of Maharashtra, the Supreme Court of India in paragraph 67 held that human liberty is a precious constitutional value, which is undoubtedly subject to regulation by validly enacted legislation. Section 482 of the Code of Criminal Procedure recognises the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of the CrPC or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The High Court must exercise this power with circumspection and restraint, ensuring that the due enforcement of criminal law is not obstructed by the accused taking recourse to artifices and strategies., The Supreme Court of India further observed that the public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. The recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty. The need to ensure the fair investigation of crime protects both the rights of the victim and the societal interest in ensuring that crime is investigated and dealt with in accordance with law. The courts, including the district judiciary, the High Courts and the Supreme Court, must be alive to the need to safeguard the public interest and to prevent the criminal law from becoming a weapon for selective harassment of citizens., In Santosh v. State of Maharashtra, the Supreme Court of India observed that the Investigating Officer was of the view that custody of the appellant was required for recording his confessional statement, but the purpose of custodial interrogation is not merely for confession. The right against self‑incrimination is provided for in Article 20(3) of the Constitution, which enjoys an exalted status as an essential safeguard against torture and coercive methods used by investigating authorities. Therefore, the appellant's failure to confess does not imply non‑cooperation, and lack of cooperation may only lead to cancellation of bail if justified., In Joginder Kumar v. State of Uttar Pradesh, the Supreme Court of India noted that an arrest during the investigation of a cognisable case may be justified in circumstances such as a grave offence (murder, dacoity, robbery, rape, etc.), likelihood of the accused absconding, violent behaviour, or habitual offending. The police officer making an arrest should record the reasons in the case diary, and arrest is not mandatory except in heinous offences. The officer must have reasonable satisfaction after investigation as to the genuineness of the complaint and the necessity of the arrest, as arrest and detention can cause incalculable harm to reputation and self‑esteem., In Mohd. Zubair v. State (NCT of Delhi), the Supreme Court of India held that police officers are vested with the power to arrest at various stages of the criminal justice process, but this power is not unbridled. Under Section 41(1)(b)(ii) of the Code of Criminal Procedure, the officer must be satisfied that the arrest is necessary to prevent further offence, ensure proper investigation, prevent tampering with evidence, prevent intimidation of witnesses, or when it is not possible to ensure the person's presence in court without arrest. The Court reiterated the importance of applying the mind to the case and complying with the conditions laid down in Section 41, as emphasized in Arnesh Kumar v. State of Bihar., The conditions which necessitate arrest are stipulated in Section 41(1)(b)(ii) clauses (a) to (e) of the Code of Criminal Procedure. A police officer is expected to record reasons for arrest in writing, and even when he chooses not to arrest, he must assign reasons. It is incumbent upon the courts to satisfy themselves that there is compliance with Section 41 and Section 41A of the Code of Criminal Procedure; failure to do so entitles the person suspected of the offence to be released on bail. Arrest is not mandatory where the provisions of sub‑section (1) of Section 41 are not satisfied; in such cases the officer must issue a notice directing the person to appear before him for answering certain queries., On 15 December 2022, Respondent No.1 issued a first notice under Section 41A of the Code of Criminal Procedure to the petitioner, calling upon him to appear in its office at New Delhi on 19 December 2022 for questioning qua the subject FIR. The notice was not served at the petitioner’s proper address; it was received by a person named Rohit Das, who endorsed it in Hindi. The petitioner subsequently sent a WhatsApp message to the Investigating Officer, Mr. Nitesh Kumar, providing his correct e‑mail ID and requesting to be summoned on 21 December 2022 instead of 19 December 2022 due to pre‑scheduled medical appointments., The petitioner attended the office of Respondent No.1 at New Delhi on 21 December 2022 but was not allowed to enter and was asked to attend on 22 December 2022. He attended on 22 December 2022 for the whole day, but was again called on 23 December 2022. Since the petitioner had already been summoned by the Enforcement Directorate on 23 December 2022, he informed the Investigating Officer via WhatsApp and could not attend the office of Respondent No.1. The petitioner attended the office of the Enforcement Directorate on 23 December 2022 in connection with an E.C.I.R.; a copy of the gate pass is annexed., On 24 December 2022, Respondent No.1 issued another notice under Section 41A of the Code of Criminal Procedure calling upon the petitioner to appear before it in its office in Mumbai on 25 December 2022 for questioning. Instead of serving the notice personally or by e‑mail, the notice was pasted on the wall of the petitioner’s former office building in Mumbai. The petitioner, who resides at Aurangabad, promptly responded by e‑mail on 25 December 2022, explaining his health condition (fever and high sugar level) and stating that he had previously complied with the notice dated 15 December 2022, had handed over all documents, and was willing to cooperate. He requested the rescheduling of the appearance to 26 December 2022., A further notice under Section 41A of the Code of Criminal Procedure was issued by Respondent No.1 on 25 December 2022, calling upon the petitioner to appear before its Mumbai office on 26 December 2022 at 9:00 a.m. for questioning. The petitioner, on his own volition, appeared on 26 December 2022, underwent a Reverse Transcription Polymerase Chain Reaction (RTPCR) test and was arrested. No inquiry in relation to the investigation was conducted nor were any questions asked to the petitioner., Respondent No.1 attempted to justify the arrest by stating that the petitioner had appeared on 22 December 2022 but could not be confronted with co‑accused Mrs. Chanda Kochhar and Mr. Deepak Kochhar. No material was placed on record to substantiate this claim, and the petitioner had duly appeared before Respondent No.1 on 22 December 2022. The argument that the petitioner deliberately avoided appearance to evade confrontation is not credible, as the petitioner had already been summoned by the Enforcement Directorate on the same day and attended its office, as evidenced by the gate‑pass., The arrest memo records: Case No. RCBD1/2019/E/0001 dated 22 January 2019 (Videocon Case); Sections 120‑B r/w 420 IPC and Section 7 r/w Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988; Date, time and place of arrest 26 December 2022, 10:30 a.m., Office of Head of Branch & DIG of Police, CBI, Bandra Kurla Complex, Mumbai; Arrestee Shri Venugopal Nandlal Dhoot, S/o Late Nandlal Dhoot; Officer effecting arrest Dy. Superintendent Nitesh Kumar; Grounds of arrest: the petitioner is an accused in the FIR and has been inconsistent in his statements before the Investigating Officer/CBI, thereby not cooperating with the investigation. Witnesses: Sh. Jeevan Hamal and Ms. Anitha Satish. The memo states that the grounds of arrest have been explained in vernacular and that the petitioner’s daughter‑in‑law was notified., A bare look at the grounds of arrest indicates that the petitioner has been described as inconsistent in his statements and non‑co‑operative, without any specific particulars as to how his statements were inconsistent or how his alleged non‑co‑operation justified arrest. The arrest was not shown to be necessary to prevent further offence, tampering with evidence, intimidation of witnesses, or to ensure his presence in court, as required under Section 41(1)(b)(ii) of the Code of Criminal Procedure. Consequently, the grounds of arrest are casual and do not satisfy the mandate of Section 41(1)(b)(ii) (a) to (e)., In Arnesh Kumar (supra) and Satender Kumar Antil (supra), the Supreme Court of India interpreted Section 41(1)(b)(i) and Section 41(1)(b)(ii) of the Code of Criminal Procedure, holding that the elements of reason to believe and satisfaction for an arrest must be read together and recorded by the concerned officer while arresting an accused. The officer cannot arrest the accused at his whims and fancies., Even the remanding courts appear to have not adhered to the ratio laid down by the Supreme Court of India in Arnesh Kumar (supra) and Satender Kumar Antil (supra) by ignoring compliance with Section 41 and Section 41A of the Code of Criminal Procedure. Merely stating in the arrest memo that the petitioner has been inconsistent in his statements and has not cooperated with the investigation is insufficient and contrary to the mandate of Section 41(1)(b)(i) and (ii) (a) to (e). This is in light of the fact that a person cannot be compelled to give a self‑incriminating statement under Article 20(3) of the Constitution., In Selvi v. State of Karnataka, the Supreme Court of India reiterated that Article 20(3) is an essential safeguard in criminal cases and is meant to be a vital safeguard against torture and other coercive methods used by the investigating agency. Hence, merely because an accused does not confess, it does not ipso facto mean that the accused is not cooperating with the investigation. The courts have time and again reiterated their role in protecting personal liberty and ensuring that investigation is not used as a tool of harassment., Now, again turning to the impugned orders dated 26 December 2022, 28 December 2022 and 29 December 2022 passed by the remanding courts.
id_1238	2	After his arrest when the petitioner was first produced before the Sessions Court, Mumbai (Court No.53) on 26 December 2022, the learned Judge, after considering the submissions made by the Investigating Officer and the counsel for the petitioner, recorded his satisfaction and observed: I have heard both the sides and the Investigating Officer at length for a considerable time. I have also carefully gone through the case diary. It is seen that the accused is arrested today in the alleged crime for want of non‑cooperation on his part. The objection pointed out by the learned Advocate for the accused appears to be not proper regarding his illegal arrest. The Investigating Officer submitted that instead of receiving multiple notices to join the investigation, the accused all the time non‑cooperated. The remand paper and the document attached with it and the conduct of the accused of non‑cooperation reflect that the Investigating Officer did nothing wrong while arresting the accused in respect of the alleged offence. Consequently, it appears the compliance of mandatory provisions 41 and 41A of the Criminal Procedure Code on the part of the Investigating Officer. It is not disputed that the present accused is arrested today itself and produced before the Court. Therefore, obviously, it is a first production of the accused with remand report, which certainly required time for interrogation with the accused. The nature and gravity of the offence appears to be very serious in respect of a huge economic offence involving multiple crores. It is seen that investigation is at the initial stage; thus, this Court is of the considered opinion that custodial interrogation of the present accused with the Investigating Officer is certainly required. In view of the above facts and circumstances, whatever objections raised by the learned Advocate regarding illegal arrest of the accused deserve non‑consideration. The accused therefore is required to be remanded to Central Bureau of Investigation custody., Order: Accused Venugopal Nandlal Dhoot is remanded to Central Bureau of Investigation custody till 28 December 2022. Application for seeking permission for home food, medicines and attendant doctor/helper to administer medicines and food and others for accused Shri Dhoot filed by Advocate Ladda. Order: Learned Special Public Prosecutor to say. Matter adjourned for hearing on Exhibit 5 to 27 December 2022. Matter adjourned for hearing on ad‑interim bail (Exhibit 3) to 28 December 2022. Authenticated copy of this order is to be given to both sides., Surprisingly, it can be seen from the order that the learned remanding Judge observed that whatever objections raised by the learned Advocate regarding illegal arrest of the accused deserve non‑consideration. The observations of the learned Judge that there was due compliance of the mandate of Sections 41 and 41A of the Criminal Procedure Code are casual and appear to be based upon ipse dixit of the Investigating Officer. It is apparent that the remanding Court had not recorded its satisfaction as to what persuaded him to authorize the detention of the petitioner after going through the case diary produced by respondent No.1., When the petitioner was again produced before the Special Judge, Central Bureau of Investigation on 28 December 2022, the learned Judge observed: Police custody of the accused for two days is sought by the Investigating Officer on the grounds that on 26 August 2009 the sanctioning committee headed by Mrs. Chanda Kochhar sanctioned the term loan of Rupees 300 crore to Videocon International Electronics Limited in contravention of rules and policies of the bank and abused her official position as a public servant dishonestly. On the very next day the Videocon company transferred Rupees 64 crore to M/s NRL managed by Deepak Kochhar, husband of Chanda Kochhar. Therefore, she committed criminal breach of trust punishable under section 409 of the Indian Penal Code by sanctioning the loan of Rupees 300 crore and later converting the funds of Rupees 64 crore for her own use by the investment in the company of the accused No.5. Prosecution prayed for grant of Central Bureau of Investigation custody of the accused for two days as accused Venugopal Dhoot, who was arrested on 26 December 2022, is required to be confronted with the co‑accused Chanda Kochhar and Deepak Kochhar. According to prosecution the custodial interrogation of the accused is necessary, considering the seriousness and gravity of the offence., It appears that extension of custody was sought for the purpose of confrontation of the petitioner with the co‑accused Chanda Kochhar and Deepak Kochhar. There is no satisfactory answer from the Investigating Agency as to why for a period of three years the Investigating Agency has neither confronted all the accused before one another nor demonstrated the progress of the investigation by placing the case diary before the remanding Court. Non‑compliance of Sections 41 and 41A of the Criminal Procedure Code is therefore apparent., The learned Judge in an order dated 28 December 2022 observed that he had perused the case diary and found that the offence is of serious nature. He further observed that earlier orders passed by his predecessors indicate that the Investigating Officer had complied with the requirements before effecting the arrest of the petitioner. This cannot be countenanced in light of the mandate of law. Merely stating in the order that there is due compliance of Sections 41 to 41A of the Criminal Procedure Code is not sufficient in view of the guidelines of Arnesh Kumar (supra) and Satender Kumar Antil (supra). It is not an empty formality. It is manifest from the impugned orders passed by the remanding Courts that no serious efforts have been made to scrutinise the application seeking detention of the petitioner as well as the case diary tendered before the Court, particularly in view of the settled guidelines by the Honorable Supreme Court. The onus of recording satisfaction, as already stated, not only lies on the Investigating Officer but also on the remanding Judge., For the reasons stated hereinabove, the petitioner needs to be released on bail, pending the hearing and final disposal of the petition., Order: (i) The petitioner be released on furnishing cash security in the sum of Rupees 1,00,000 for a period of two weeks; (ii) The petitioner shall execute a personal bond in the sum of Rupees 1,00,000, with one or more sureties in the like amount, to the satisfaction of the Special Judge, Central Bureau of Investigation on or before completion of two weeks as above; (iii) The petitioner shall co‑operate in the investigation conducted by respondent No.1 and shall attend the office of respondent No.1 as and when summoned; (iv) The petitioner shall not tamper with the evidence or attempt to influence or contact the complainant, witnesses or any person concerned with the case; (v) The petitioner shall not leave the country without permission of the trial Court., Writ petition be listed on 6 February 2023. All concerned to act on the authenticated copy of this order., At this stage, learned counsel for the intervenor appearing in the interim application seeks stay of the order granting interim bail to the petitioner. Request is rejected.
id_1240	0	This appeal is at the instance of the Union of India and others being the unsuccessful respondents before the Gauhati High Court and is directed against the judgement and order dated 15 May 2019 passed by the Gauhati High Court in Writ Petition (C) No. 7876 of 2015 by which the High Court allowed the writ petition filed by the respondent herein (original petitioner) and thereby set aside the order of penalty of withholding of 50 percent pension for all times to come, imposed upon the respondent herein in connection with the disciplinary proceedings initiated on the allegations of sexual harassment., We are dealing with a litigation relating to sexual harassment. Sexual harassment in any form at the workplace must be viewed seriously and the harasser should not be allowed to escape from the clutches of law. We say so because the same humiliates and frustrates a victim of sexual harassment, more particularly when the harasser goes unpunished or is let off with a relatively minor penalty. However, at the same time, it should be kept in mind that the charge of this nature is very easy to make and is very difficult to rebut. When a plea is taken of false implication for extraneous reasons, the courts have a duty to make deeper scrutiny of the evidence and decide the acceptability or otherwise of the accusations. Every care should be taken to separate the chaff from the grain. The veracity and genuineness of the complaint should be scrutinised to prevent any misuse of such laudable laws enunciated for the upliftment of the society and for equal rights of people without gender discrimination by anybody under the garb of sexual harassment, lest justice rendering system would become a mockery. In such circumstances, we have decided to look into this matter closely and in details., The respondent herein was serving as the Area Organizer, i.e., the Local Head of Office of the Service Selection Board (SSB), Rangia, State of Assam between September 2006 and May 2012. In the same office, a lady employee was serving as the Field Assistant (Lady) (hereinafter referred to as the complainant). She lodged a complaint (hereinafter referred to as the first complaint) addressed to the Inspector General (IG), Frontier Headquarters, Guwahati, with one copy each forwarded to the Director General, SSB, New Delhi, Deputy Inspector General, SSB, Sector Headquarters, Tezpur and the Chairperson of the National Women Rights Commission, New Delhi, inter alia, alleging sexual harassment at the hands of the respondent. The first complaint dated 30 August 2011 reads thus: \The Inspector General, Frontier Headquarters, SSB Guwahati. Subject: Regarding information of personal grievances thereof. Honorable Sir, With due respect and humility, I, the undersigned, draw your kind attention to the following matter. 1. I have joined the office of the Area Organizer Rangia in March 2009. Since my joining I have been entrusted the task of receiving telephones and mobiles in the Control Room, CAP, Training, Sports. I was the only female employee in the office. 2. Having just started discharging my duties devotedly, the Area Organizer Mr. Dilip Paul started teasing me tactically. He started making phone calls to me sometimes at night using unofficial and multi‑meaninged words. He even went to the extent of visiting my residence where I stay alone with two of my children as my husband is a state Government employee in Manipur. 3. Sometimes CAP work needs close working with the officers. Taking advantage he used to call me in his room and started teasing indirectly and unnecessarily, making me sit for hours. One day he went to the extent of saying, “If you want to work happily in my office, then agree to my saying.” 4. I have been tolerating his acts for the last two and a half years. I could neither inform my husband nor lodge any written complaint against such acts as it would be difficult to give evidence. Unable to bear the situation I verbally complained to the then Deputy Inspector General Shri S. C. Katoch over telephone in May 2010 about Mr. Paul’s uncivilized attitude. The Deputy Inspector General did a favour and warned Mr. Paul of severe consequences if he did not stop misbehaving. 5. Since then, he stopped teasing but instead began torturing me mentally. I have not been entrusted any work and have been excommunicated in the office. Throughout the day all I have to do is sit silently in the office. If any of my colleagues talk with me, Mr. Paul would immediately call them and scold them bitterly. Sir, I am now so much depressed and mentally disturbed I have visited doctors many times for which I have taken many medical leaves. Now, I am not in a position to work even for a day under him. It also began affecting my family life. In view of the above, I request your kind honour to look into the matter sympathetically and it is also requested to take necessary action against Shri Dilip Paul, Area Organizer Rangia to get rid of this problem as soon possible, for which I shall remain ever grateful to you. Yours faithfully, Signed, 30 August 2011\, The Deputy Inspector General, SSB, Sector Headquarters, Tezpur held a common on‑the‑spot fact‑finding inquiry in relation to the first complaint dated 30 August 2011 and recorded the statements of the employees working in the office of the respondent. The respondent was given an opportunity to file his reply to the allegations levelled in the complaints. On 13 December 2011, the on‑the‑spot fact‑finding inquiry was concluded, and two reports in that regard were submitted to the Inspector General, Frontier Headquarters, Guwahati., On the first complaint of sexual harassment, the staff members stated that they had not seen anything in the office which could be termed as indirect teasing or harassment to the complainant. The report reads as follows: \The Inspector General, Frontier Headquarters, SSB Guwahati. Sub: Inquiry on complaints lodged by Shrimati X, Field Assistant (Lady), against Shri Dilip Paul, Area Organizer, SSB Rangia. Sir, With reference to Frontier Headquarters Guwahati letter No. FG‑II/VC VIG/08(Part)/15293 dated 01‑09‑11, I visited the Office of the Area Organizer, SSB Rangia on 1 November 2011 and enquired into the matter. All the staff available in the office on the date were summoned one after another individually, but none of them stated to have seen or known Shri Dilip Paul, Area Organizer misbehaving with Shrimati X, Field Assistant (Lady) in the office. Further, most of them stated that due to reasons best known to Shri Paul, the Area Organizer, she was not allotted any work for about three months before her release to Frontier Headquarters Guwahati and hence she was often seen depressed. On the other hand, in his written statement Shri Dilip Paul, Area Organizer pointed out that she was found even unfit for any kind of assignment, and therefore, she was not assigned any work just before her transfer, i.e., from 18‑08‑11. It is also the duty of the supervisory officer as administrator and manager to motivate his subordinate staff and give them work. In the case of Shrimati X, Field Assistant (Lady), Shri Dilip Paul, Area Organizer, is found to have failed to motivate her and give her work. Regarding the allegation of tactical and indirect teasing and making her sit in the office chamber of the Area Organizer for hours together, none of the staff have stated to have ever seen such a situation in the office. Hence the allegation of direct/indirect teasing and harassment to Shrimati X, Field Assistant (Lady) by Shri Dilip Paul could not be ascertained. However, since Shrimati X referred the case to the National Women Rights Commission, New Delhi, the matter may be under investigation by them. Yours faithfully, Deputy Inspector General\, Similarly, as per the report on the anonymous complaints, nothing substantive was found as regards the allegations. The report further noted that during the inquiry the only thing that surfaced was the occasional rudeness and uncordial interpersonal relations of the respondent with three of his subordinate employees. Accordingly, the respondent was advised to improve his personnel management and administration of the office. The report reads as follows: \The Inspector General, Frontier Headquarters, SSB Guwahati. Sub: Enquiry report on Anonymous Complaint against Shri Dilip Paul, Area Organizer, SSB, Rangia. Sir, With reference to Frontier Headquarters Guwahati letter No. FG‑II/VC VIG/08(Part)/5660 dated 08‑09‑11, I visited the Office of the Area Organizer, SSB, Rangia on 1 November 2011 and enquired into the matter. All the staff present in the office on the date were summoned one after another individually. I obtained their statements individually and, on the basis of the interaction with each of them, I opine as follows: 1. From the statements of the staff it is observed that Shri Dilip Paul, Area Organizer sometimes shouts to some of the staff in the office for the purpose of official work only. No proof has been found regarding use of unofficial language. One or two officials stated that the Area Organizer used to be rude and shouted at them on some occasions on matters of official work only. 2. Regarding passing of TA/DA, MR Bills etc., it is found that these works are going smoothly. There has been no occasion when he took interest in passing his own bill by neglecting that of others. 3. Regarding granting of leave to staff and passing of bills etc., it is found that no refusal or delay occurred. However, while granting leave sometimes staff position and administrative convenience has been taken into account. 4. It is observed that the Area Organizer is using his own vehicle to attend office. 5. On the basis of statements given by each staff and from the paragraph‑wise reply given by the Area Organizer, it is observed that there is no evidence regarding use of unnecessary slang language by the Area Organizer to his subordinate staff, but at times he used to be rude to get the work done within the time limit. It is further observed that there is no cordial interpersonal relation between Shri P. B. Gohain, SAO, Shri K. Siga, SAO, Shri J. Singh, UDC and the Area Organizer, Shri Dilip Paul. Therefore, these officers/officials may be shifted out in order to bring back a cordial working atmosphere in the Area Office. At the same time, Shri Dilip Paul, Area Organizer may be advised to improve his man‑management, administration and other official dealings, skills and tactics with his subordinate staff to bring back a congenial atmosphere in the office. Yours faithfully, Deputy Inspector General, Sector Headquarters, SSB, Tezpur\, Simultaneously, a Frontier Complaints Committee comprising three women members was constituted by the Inspector General, Frontier Headquarters, Guwahati to inquire into the allegations of sexual harassment levelled by the complainant in her first complaint dated 30 August 2011. The Frontier Complaints Committee, upon completion of the inquiry, submitted its report dated 17 January 2012 to the Frontier Headquarters, SSB, New Delhi through the Inspector General, Guwahati, stating that the allegations lodged by the complainant could not be said to have been fully established or proved. The Committee further observed that the complainant had lodged her first complaint after a delay of more than two years and had also failed to produce any documentary evidence in support of her allegations. The relevant observations of the Frontier Complaints Committee's Inquiry Report are reproduced below: \Finding of the inquiring authority: The inquiry committee assembled at Frontier Headquarters, Guwahati on 25 January 2012 to ascertain the facts of the case. The committee has gone through the statements of the complainant, the charged officer, and the statements of prosecution and defence witnesses but the points raised in the complaint could not be fully established or proved. The statements given by all the prosecution witnesses are not enough to prove the complaint. She lodged a complaint after a gap of more than two years. The complainant failed to produce any documentary evidence based on the allegations levelled against the charged officer.\, While the Frontier Complaints Committee's report dated 17 January 2012 was pending for consideration, the Ministry of Home Affairs, as the Competent Authority, constituted another inquiry committee on 6 August 2012, the Central Complaints Committee, to conduct an appropriate inquiry into the complainant's allegations of sexual harassment. Prima facie, it appears from the materials on record that the Central Complaints Committee had to be constituted in view of Clause 9 of the 2006 Standing Order. Clause 9 of the 2006 Standing Order envisages two levels of complaints committee: a Frontier Complaints Committee for the combatised and in‑field officers, and a Central Complaints Committee for the non‑combatised officers. At the time of lodging of the complaint, the respondent was serving as a non‑combatised officer, i.e., Area Organizer. For this reason, the decision to constitute the Central Complaints Committee had to be taken., On 18 September 2012, the complainant through fax submitted a second complaint containing additional allegations against the respondent (hereinafter referred to as the second complaint) along with a few other documents including the anonymous complaints made against the respondent in October 2011., Accordingly, the Central Complaints Committee undertook the inquiry, and in the preliminary hearing held on 27 September 2012, it decided to treat the complaint as the charge‑sheet in view of the fact that no specific charges were framed against the respondent. The respondent was provided with all the relevant documents including the original copy of the first complaint dated 30 August 2011. After confirming with the respondent regarding receipt of all relevant documents, the Central Complaints Committee inquired with the respondent whether he pleaded guilty to the charges or not. The respondent pleaded not guilty and categorically denied the charges levelled against him. The relevant portion of the Central Complaints Committee's Report reads as follows: \Shri Dilip Paul, the charged officer, did not plead guilty to any of the allegations made by Shrimati X, Field Assistant (Lady) in the complaint dated 30 August 2011 framed against him.\, The Central Complaints Committee, in the course of its inquiry, examined a total of twenty witnesses produced by the complainant (including five witnesses who were earlier examined by the Frontier Level Complaints Committee) and six witnesses on behalf of the respondent (including one witness earlier examined by the Frontier Level Complaints Committee). The Committee delineated the charges to be inquired into ten distinct points. The points of determination framed by the Committee are as follows: The Committee is aware that aspects of this complaint are implicated in the FIR that Shri Dilip Paul lodged on 26 August 2011 at Police Station Rangia, concerning an allegedly threatening message sent to him on his mobile phone by Shrimati X's husband. In the counter‑case filed by Shrimati X's husband, similar allegations of sexual harassment have been raised. The Committee has ascertained from the Superintendent of Police, Kamrup, that both cases are still pending investigation. Nevertheless, pursuant to the Central Civil Services (CCS) and Central Civil Accounts (CCA) Rules 14(3), which state that prosecution in a court and departmental proceedings can proceed simultaneously, the Committee decided to proceed with the enquiry and submit its findings. The specific allegations are: Point 1: Shri Dilip Paul would use the pretext of summoning the complainant into his room with work‑related files to make sexually loaded and personal remarks, including comments about her appearance, stating he wanted to marry a Manipuri girl like her, boasting about his sexual prowess, and making double‑meaning remarks, detaining her in his office for inordinately long periods. Point 2: Shri Dilip Paul would stare at the complainant in the workplace, repeatedly entering the room where she was sitting on the pretext of drinking water. Point 3: Shri Dilip Paul would attempt to touch the complainant in an unwelcome sexually determined manner in the workplace, for example, on the pretext of teaching her to operate a laptop, he came close and touched her shoulder and body. Point 4: Shri Dilip Paul would often make the complainant work beyond office hours, often after 2000 hours, and would then offer to drop her in his vehicle to her home, pressuring her to travel with him. Point 5: On a railway station visit in March 2010 for a study tour to South India, Shri Dilip Paul made an unwelcome sexual advance by putting his arm around the complainant's shoulder and attempting to hug her, stating he was sending her on the study tour to make her “mind fresh” so that she may forget her previous life and return as Mrs. Paul. Point 6: At the railway station after the luggage was loaded onto the train, Shri Dilip Paul entered the train compartment and said to the complainant, “tum jaa rahe ho to meri jaan jaa rahi hai. Ham ka saath jaana hi acchaa hota. Koi baat nahi, tum study tour se waapas aa jao, to tum Mrs Paul banogi.” Point 7: Shri Dilip Paul made unwelcome sexual advances outside the workplace, propositioning the complainant to leave her husband and marry him with the assurance that he would adopt her children. Since July 2009, he habitually visited her uninvited, even late at night, making unsolicited phone calls frequently at night, sometimes up to half an hour, and insisting on speaking for long durations. On one occasion, he came to her home at around 4.45 a.m. and insisted she accompany him for a morning walk. On another occasion, he arrived with a bottle of alcohol and tried to pressure her to drink; when she tried to escape to the kitchen, he followed and attempted to force himself upon her by embracing her, after which she managed to extricate herself and ran out of the house. He also showed an unhealthy interest in her daughter, calling the child and attempting to hold her in a dirty manner, releasing the child only when the mother intervened in Manipuri. In April 2010, after her return from the study tour, he made unwelcome advances, stating they would become one in a few days and that she should stop resisting, attempting to forcibly embrace her, after which she escaped to the room where her children were sleeping. During an official trip to Nagrijuli for the Civic Action Programme, he made her sit next to him and tried to hold her hand and touch her, with no eyewitnesses as only they were in the middle seat of the car. Point 8: After the complainant reported her complaint to Shri S. C. Katoch, Deputy Inspector General, Shri Dilip Paul victimised her by withdrawing all work assigned to her and assigning it to another employee, making her sit idle in the office for the next three months. Point 9: In late August 2010, the complainant approached Inspector General S. K. Singhal with a written complaint of sexual harassment and an application for transfer to Frontier Headquarters Guwahati. The Inspector General asked her to separate the two complaints and issued an order transferring her to Frontier Headquarters Guwahati on 1 September 2011, without directions for payment of travel allowance or a joining time. Point 10: The complainant also complained that the enquiry into her complaint of sexual harassment in November 2011 did not provide her sufficient time or opportunity to submit additional documents or produce additional witnesses, that she was not afforded the right of cross‑examination of Shri Dilip Paul, nor a chance to rebut his alleged false statements, and that she was not provided a copy of the enquiry report. She further pleaded that, as a woman employee of the SSB, she was unaware of the Complaints Committee mechanism for dealing with complaints of sexual harassment, and queried whether the promotion of Shri Dilip Paul on 11 September 2012 to the rank of Deputy Inspector General was maintainable when a complaint of sexual harassment was pending., While the Central Complaints Committee's inquiry was still pending, the Ministry of Home Affairs, as the Competent Authority, by its order dated 30 November 2012 annulled the Frontier Level Complaints Committee's inquiry report on the ground that the Chairperson of the Frontier Level Complaints Committee was of an equivalent rank to that of the respondent, violating the statutory provisions, particularly Standing Order No. 1 of 2006 (Grievances Redressal Mechanism: To Redress Grievances of Women/Sexual Harassment at Workplace)., Clause 9(1) of the 2006 Standing Order mandates that the chairperson of the inquiry committee must be senior in rank to the delinquent or charged officer and reads as follows: \Chairman of the committee should be senior to the officer or official against whom the complaint is made.\, The Central Complaints Committee submitted its inquiry report on 28 December 2012 to the Ministry of Home Affairs, wherein after recording its findings on the ten points, it held the charges of sexual harassment against the respondent to have been proved. The Committee concluded its report with the following recommendations: The Complaints Committee finds that the charges of sexual harassment in the workplace have been well proven. Moreover, a perusal of the charged officer's defence statement, in which Shri Dilip Paul attempts to slander and assassinate the complainant, alone speaks volumes about his respect for women. In view of its findings, the Complaints Committee makes the following recommendations: 1. Shri Dilip Paul be given exemplary punishment for his sustained sexual harassment of Shrimati X in the form of dismissal from service, and he be stripped of promotion to Deputy Inspector General and the police medal awarded to him. 2. Shrimati X be reimbursed for the Travel Allowance/Dearness Allowance that was denied to her in her transfer to Frontier Headquarters Guwahati. 3. Shrimati X be provided a copy of the Complaints Committee report. 4. The Service Selection Board implement, with urgency, its Standing Order 1/2006 by organizing regular workshops for women employees to sensitize them about the nature of sexual harassment and their rights as women employees, as well as the procedures detailed by the order. Members of the Complaints Committees instituted by the SSB should regularly tour the various divisions and area offices of the SSB for such meetings. 5. Further, regular workshops must be held for senior officers of the SSB to sensitize them regarding their role and responsibilities in implementing Standing Order 1/2006., On 16 January 2013, the respondent was provided with the Central Complaints Committee's Inquiry Report and was asked by the Disciplinary Authority to submit his reply or written representation, which he submitted on 30 January 2013. The Inquiry Report, along with the written representation of the respondent, was forwarded by the Ministry of Home Affairs in accordance with the relevant rules to the Union Public Service Commission for the purpose of seeking advice on the penalty that was proposed to be imposed.
id_1240	1	The order imposing penalty passed by the Disciplinary Authority reads thus: Date 05.01.2016. WHEREAS, a complaint of sexual harassment at workplace was made by Smt. X, Female Assistant (Lady) vide her complaint dated 30.08.2011 against Shri Dilip Paul, Area Organiser who had superannuated from government service on 31.03.2013 as Deputy Inspector General. AND WHEREAS, Ministry of Home Affairs being the disciplinary authority in respect of Group A Officers vide their Union Order No.20/SSB/Pers.III/11 (4)/Pers.III dated 06.08.2012 had appointed Smt. B. Radhika, Joint Director, Crime and Criminal Tracking Network & Systems - II, National Crime Records Bureau, New Delhi as Chairman of the Complaint Committee to enquire into the said complaint of sexual harassment against Shri Dilip Paul. AND WHEREAS, the Chairman of the complaint committee had handed over the complaint of sexual harassment dated 30.08.2011 submitted by the Complainant to Shri Dilip Paul, Deputy Inspector General during the course of first hearing of enquiry held on 26.09.2012 at New Delhi. Shri Dilip Paul denied the allegations of sexual harassment levelled against him by the complainant. AND WHEREAS, the complainant had levelled various allegations of sexual harassment against the said Shri Dilip Paul, Area Organiser (now retired Deputy Inspector General), which are summarised here as under: (a) That the said Shri Dilip Paul started teasing her tactically. He started making phone calls at night using unofficial and multi‑meaning words. At times, he would visit her residence when she was alone. Further, he would summon her into his room in his official capacity and would make her sit for hours. That the said Shri Paul on one pretext or the other used to make personal contact with her body. (b) That repeatedly, he used to tell the complainant that if she kept him satisfied by cooperating with the sexual activities, she shall be protected from all corners. (c) That in one of the incidents, when he had visited her residence, he had entered the kitchen and embraced her. (d) That he repeatedly proposed marriage to her. (e) That the said Shri Paul had many times tried to outrage her modesty. (f) That she had complained against the Officer to the then Deputy Inspector General Shri S.C. Katoch, who had also warned the officer to desist from doing such activities. (g) That during the course of the proceedings, some additional allegations were also levelled., On these allegations, the Complaint Committee examined all the relevant witnesses in presence of the accused. The accused was afforded all the opportunities of defence. The Chairman of the complaint committee submitted the inquiry report dated 28.12.2012 to the disciplinary authority i.e. Ministry of Home Affairs. The Inquiry Officer in its findings has proved all the charges levelled against the Charged Officer. As per the Central Civil Services (Classification, Control and Appeal) Rules, 1965, the report of the Complaint Committee is to be treated as the enquiry report and the disciplinary authority is to take action on that report as per the procedure prescribed in Rule 14 of the CCS (CCA) Rules., A copy of the enquiry report after its acceptance was served upon the Charged Officer, Shri Dilip Paul, Deputy Inspector General for making his representation vide Memorandum No.14/SSB/Pers I/2013(1)/437‑39 dated 16.01.2013. The Charged Officer submitted his reply vide letter dated 30.01.2013 denying all the charges levelled against him., The representation of the accused officer on the inquiry report was examined and considered by the Disciplinary Authority, whereafter the advice of the Union Public Service Commission regarding quantum of punishment to be imposed upon the Charged Officer vide letter No.14/SSB/Per.I/2013(1)/Pers‑III dated 26.04.2013 was sought., The Union Public Service Commission vide its letter dated 22.08.2013 has advised imposition of penalty of withholding of fifty percent of monthly pension on permanent basis. The gratuity amount, if not otherwise required, may be released to him., Charged Officer Shri Dilip Paul, ex‑Deputy Inspector General filed Original Application No. 181/2013 before the Central Administrative Tribunal, Guwahati challenging the constitution of the Central Complaint Committee and its report dated 28.12.2012. The Tribunal vide its interim judgment dated 28.06.2013 had imposed a stay on operation of the enquiry report dated 28.12.2012 of the Central Complaint Committee. The said Original Application was disposed by the Tribunal, Guwahati vide its judgment dated 03.07.2015 directing therein to complete the disciplinary proceedings within four months from the date of receipt of the order., After the disposal of the case by the Tribunal and vacation of the interim directions of the Tribunal, a copy of the UPSC advice dated 22.08.2013 was served upon the Charged Officer vide Memorandum No.14/SSB/Pers‑1/2013(1)/9923‑24 dated 04.08.2015, which was duly acknowledged by the Charged Officer. The Charged Officer vide his letter dated 25.08.2015 had submitted representation against the UPSC advice. All the relevant issues have been accordingly examined by the Ministry of Home Affairs being the Competent Disciplinary Authority. The issues agitated by the Charged Officer were found devoid of merit by the Disciplinary Authority. Accordingly, the charge of sexual harassment of a woman at workplace levelled against the Charged Officer has been proved beyond shadow of doubt by a Committee headed by Joint Director, National Crime Records Bureau, which has been upheld by the Disciplinary Authority., NOW, THEREFORE, after careful consideration of the findings of the inquiry report, UPSC advice, written submission of the Charged Officer and other related records of the case, the President of India has concluded that justice would be met if the penalty of withholding fifty percent of monthly pension on permanent basis is imposed upon the Charged Officer Shri Dilip Paul, the then Area Organiser, now ex‑Deputy Inspector General, Sashastra Seema Bal. Accordingly, the aforesaid penalty is hereby imposed upon Shri Dilip Paul, ex‑Deputy Inspector General who had superannuated on 31.03.2013. The gratuity amount, if not otherwise required, may be released to him. (By order and in the name of the President) (Vandan Saxena) Assistant Director (Personnel‑I)., It appears that during the pendency of the disciplinary proceedings, the respondent superannuated on 31.03.2013 as Deputy Inspector General, Frontier Headquarters, Sashastra Seema Bal, Ranidanga, Siliguri, Darjeeling, West Bengal, and subject to the final outcome of the disciplinary proceedings, he was granted provisional pension without retirement gratuity., Defence of the Respondent: It is the case of the respondent that the complainant had preferred one application in August 2011 with a request to transfer her from the Rangia Office to the Frontier Headquarters, Guwahati. The request for transfer was made on the ground that the complainant needed to look after her ailing mother‑in‑law. However, her application was rejected by the Inspector General, Frontier Headquarters on 24.08.2011 on the ground of non‑availability of a corresponding vacant post. It is the case of the respondent that on the very next day, he received a message on his mobile phone which read as follows: 'I am hubby of one of your lady staff, wait and watch the end of your career.' According to the respondent the message was forwarded by the husband of the complainant as she harboured a grudge on the misconception that it was the respondent who was instrumental in getting her transfer application rejected., It is also the case of the respondent that he lodged First Information Report at the Rangia Police Station being Case No. 348 of 2011 in connection with the threats administered to him by way of a telephonic message., Proceedings before the Central Administrative Tribunal: The respondent preferred Original Application No. 181 of 2013 before the Central Administrative Tribunal, Guwahati assailing (i) the constitution of the Central Complaints Committee vide order dated 06.08.2012 (received via fax dated 03.09.2012), (ii) cancellation of the Frontier Complaints Committee's Inquiry Report vide order dated 30.11.2011 (received via Memorandum dated 10.12.2012 of the Frontier Headquarters, Sashastra Seema Bal, Guwahati) and (iii) the Central Complaints Committee's Inquiry Report dated 28.12.2012. The reliefs prayed for by the respondent in the captioned Original Application are reproduced below: Relief(s) sought for: The Tribunal be pleased to set aside and quash the impugned (i) fax message dated 03.09.2012 (Annexure‑11) and the constitution of the Central Legal Complaint Committee under the Chairperson Smt. B. Radhika, IPS; (ii) Memorandum dated 10.12.2012 (Annexure‑16) and cancellation of the enquiry report of the Frontier Level Complaint Committee; and (iii) the enquiry report dated 28.12.2012 (Annexure‑17) of the Central Complaint Committee., The Central Administrative Tribunal, Guwahati vide its final judgment and order dated 03.07.2015 dismissed the Original Application No. 181 of 2013 observing that the Frontier Complaints Committee had not been constituted as per the 2006 Standing Order, and as the disciplinary proceedings were still pending, it refrained from expressing any opinion in regard to the Central Complaints Committee's Inquiry (except expressing some reservations on the issue of penalty recommended therein) and directed that the disciplinary proceedings be completed within four months., The Tribunal observed: (i) The Chairperson of the Frontier Level Complaint Committee was junior in rank to the applicant, as the applicant was promoted to the rank of Area Organizer on 22.12.2005, whereas the Chairperson was promoted to the rank of complainant, which is not prescribed as per the Standing Operating Procedure of the department. (ii) Procedural irregularities, even if accrued unknowingly, could not be encouraged. (iii) The Central Complaint Committee conducted a thorough enquiry, giving opportunity to the applicant and others with due examination and cross‑examination of witnesses, and arrived at its opinion., The Tribunal directed the respondents to complete the departmental proceedings within four months from the date of receipt of the order., Proceedings before the Guwahati High Court: Aggrieved with the aforesaid, the respondent preferred writ petition WP (C) No. 7876 of 2015 before the Guwahati High Court challenging the judgment and order dated 03.07.2015 passed by the Central Administrative Tribunal, Guwahati. During the pendency of the writ petition, the Ministry of Home Affairs vide its order dated 05.01.2016 held that the charges of sexual harassment levelled against the respondent stood duly proved and, after due consideration of the respondent's representation and the advice of the UPSC, imposed a penalty of withholding fifty percent of the monthly pension on permanent basis., In such circumstances, the respondent amended his writ petition pending before the Guwahati High Court and challenged the final order of penalty dated 05.01.2016 in addition to the original reliefs prayed for before the Central Administrative Tribunal, Guwahati., The impugned judgment of the High Court is in three parts. The High Court allowed the writ petition and set aside the order of penalty on three grounds: (i) The Central Complaints Committee was constituted to inquire into only the first complaint dated 30.08.2011, but during its inquiry it also looked into allegations in the second complaint dated 18.09.2012, which it could not have. (ii) The Central Complaints Committee, while conducting the inquiry, assumed the role of a prosecutor by putting questions to the witnesses, which vitiated the inquiry proceedings. (iii) The Central Complaints Committee based its findings on surmises and conjectures, and the case was one of no evidence., The High Court accordingly allowed the writ petition and set aside the penalty of permanently withholding fifty percent of the pension imposed upon the respondent., Mr. K. Parmeshwar, learned counsel for the appellant, submitted that there was no violation of the principles of natural justice as the respondent was given an opportunity to defend himself at every stage. He stated that the Central Complaints Committee was constituted to look into the allegations made against the respondent as prescribed under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Committee conducted its first hearing on 26.09.2012 at 10:00 a.m. The respondent was served with all relevant documents including the complaint dated 20.08.2011. The list of witnesses submitted by the complainant on 18.09.2012 was also supplied to the respondent. The respondent appeared and requested time to engage counsel; the Committee granted one week. The next hearing was fixed for 26.11.2012. The respondent later chose to represent himself and cross‑examine eleven witnesses. The respondent was therefore afforded adequate opportunity to defend himself., Counsel further submitted that the allegation that the complainant submitted a list of witnesses later on 18.09.2012, which the Committee could not consider, is misconceived. The complainant cannot be denied the right to produce witnesses to support her claim, even before the preliminary hearing conducted on 26.09.2011., Counsel also argued that the respondent was supplied with copies of all complaints and relevant documents, and therefore was well acquainted with the nature of the allegations. The non‑framing of articles of charge could not be said to be detrimental to the appellant's interest., Counsel cited State of U.P. v. Sudhir Kumar Singh, 2020 SCC OnLine SC 847, stating that a few infirmities would not vitiate the entire proceedings unless prejudice is shown. He contended that adequate opportunity was afforded to the appellant by the Committee, the Disciplinary Authority and the Appellate Authority before imposing the penalty of withholding fifty percent of the pension., Counsel for the respondent submitted that no prejudice was caused by non‑supply of the reports submitted in pursuance of an on‑spot enquiry and Frontier Level Complaint Committee. He explained that the first alleged inquiry dated 13.12.2011 was a summary on‑spot enquiry and not a disciplinary enquiry as envisaged in Vishaka v. State of Rajasthan, (1997) 6 SCC 241 and the Sashastra Seema Bal Standard Operating Procedure on sexual harassment., He further noted that before the report of the on‑the‑spot enquiry was submitted, the Frontier Level Complaint Committee was already constituted and submitted its report on 17.01.2012, which was later cancelled by Memorandum dated 10.12.2012 on the ground that the Chairperson of the FLCC was not senior to the petitioner as required under Rule 9(b)(a) of the Departmental Standard Operating Procedure on Sexual Harassment. The decision was conveyed to the respondent vide Memo dated 10.12.2012., Counsel argued that even if the FLCC report found no allegations proved, it would not have material bearing as the report was subsequently annulled and a fresh committee was constituted as per the rules., Counsel submitted that the punishment imposed is proportionate to the offence. He cited several judgments stating that the High Court would not interfere with the quantum of punishment unless it shocks the conscience, and that judicial review is limited to the decision‑making process, not the decision itself. He referred to Aureliano Fernandes v. State of Goa, 2023 SCC OnLine SC 621, noting that the Disciplinary Authority is the sole judge of facts and the High Court should not interfere with factual findings unless they are based on no evidence or are wholly perverse., He further stated that the respondent, as a member of the disciplined force holding a significant post, harassed the complainant continuously for more than two years despite a warning issued by his superior, and that the penalty of withholding fifty percent of the monthly pension is proportionate., Mr. Avijit Roy, learned counsel for the respondent, stated that the scope of judicial review in cases of misconduct and imposition of penalty under service jurisprudence is circumscribed to examining whether the charges have been established on the basis of a fair enquiry. He referred to Rule 15 of the CCS (CCA) Rules, 1965, which imposes a categorical restriction on holding a second statutory enquiry. He noted that, despite three successive enquiries—Fact Finding enquiry, the statutory enquiry by the Frontier Level Committee, and a second statutory enquiry by the Central Complaint Committee—on the same set of allegations, the second enquiry was held impermissible by the Supreme Court in Vijay Shankar Pandey v. U.O.I. and another, (2014) 10 SCC 589, and K.R. Deb v. The Controller, Central Excise, Shillong, [1971 (2) SCC 102]., He argued that the Central Complaint Committee extrapolated the two allegations of the complaint dated 30.08.2011 to as many as ten, incorporating newly added exaggerated versions, thereby overstepping its jurisdiction., He reiterated that the High Court correctly observed that a complaint dated 18.09.2012 with five annexures was submitted to the Chairperson of the Central Complaint Committee, but the enquiry report did not mention this fact, nor was the complaint brought to the notice of the disciplinary authority, and therefore the Committee could not have entertained such a complaint for disciplinary proceedings in absence of entrustment under the Standing Order.
id_1240	2	The requirement that the officer be formally asked whether he pleads guilty or not, according to the understanding of the Honourable High Court, is not merely an opportunity for the officer to answer in a monosyllable. The Honourable High Court held that to give meaning to the word 'formally', a real and effective opportunity must be granted to the officer concerned to make his comment in writing in response to the complaint. Apparently, no such opportunity was afforded. There is no indication that, with respect to the complaint dated 18 September 2012, the officer was even asked whether he pleads guilty to the allegations made therein., The Honourable High Court, at paragraph 43 of its judgment (pages 70‑71 of the Supreme Court of India), rightly held that a few points of allegation are in no way connected to the complaint dated 30 August 2011. The Court held that two inquiries had taken place and, more than a year after the lodging of the complaint dated 30 August 2011, another complaint with many allegations was submitted to the Chairperson of the Central Complaints Committee on 18 September 2012. Accordingly, the Court rightly held that the Central Complaints Committee could not have entertained such a complaint for the purpose of a disciplinary proceeding in the absence of entrustment in terms of the Standing Order., The Honourable High Court, at paragraphs 44 and 45 of its judgment (pages 71‑74 of the Supreme Court of India), rightly held that the orders dated 26 November 2012, 27 November 2012, 28 November 2012 and 10 December 2012 show that the Committee asked questions to the prosecution witnesses and examination‑in‑chief was done by the Committee. Prosecution witness Mr S C Katoch, who was cross‑examined by the complainant, stated that the complainant had made only one call on his mobile and that she had mentioned that the sole respondent is harsh in his office work and had given her duty in the control room for which she is to sit after office hours. In other words, he negated the assertions made in the complaint that she had informed about sexual harassment meted out by the sole respondent. The Central Complaints Committee, however, noted that it appeared that Shri Katoch had pre‑judged the complaint as untrue. When his evidence was that there was no complaint of sexual harassment, there was no occasion for the Committee to opine that he pre‑judged the complaint. He was also put fifteen questions by the Committee, which was styled as examination‑in‑chief., The Honourable High Court, at paragraph 46 of its judgment (page 74 of the Supreme Court of India), rightly held that the prosecution witnesses were also put questions by the Central Complaints Committee, as evident from the Committee’s report under the heading 'Examination of witnesses', wherein the Committee recorded that it had conducted the examination‑in‑chief whenever it felt necessary. Thus, it is evident that the Committee also played the role of prosecutor, which vitiates the proceeding., The Honourable High Court, at paragraph 47 of its judgment (pages 75‑76 of the Supreme Court of India), rightly held that the Central Complaints Committee recorded that no witness examined by it had specific knowledge of the events listed. The Court observed that the alleged events pertain to unsolicited phone calls at unearthly hours and for long duration, and no call records were produced. However, the Committee accepted the allegations by merely holding that it saw no reason for the complainant to fabricate the allegations and that it is understandable that no woman would be expected to confide matters of sexual nature even to her female colleagues. In this regard, the Court correctly held that the Central Complaints Committee ought to have recorded its finding based on evidence on record and not on surmises and conjectures., It may be mentioned that the sole respondent was the most decorated officer in his cadre in the Sashastra Seema Bal. He was awarded by the President of India for his exemplary services. He was a recipient of the Indian Police Medal, Director General’s Disc with Commendation (twice), Best Performing Officer in SSB (Best Area) for four consecutive years from 2009 to 2012, and received various appreciations each month from senior controlling officers including the Director General of SSB. After putting in thirty‑five glorious years of service in SSB, he has been victimised and forced to proceed on superannuation without a single penny from the department. Even his personal accumulation under different heads has not been sanctioned to him. The sole respondent is still deprived of his retirement benefits such as gratuity, as the gratuity due to him cannot be withheld because the nature of the allegation is not related to any financial issue and there was no order by any authority about withholding his retirement benefit. Moreover, the punishment order dated 5 January 2016 (pages 447‑453 of Volume II of the present Supreme Court of India proceedings) passed by the concerned authority clearly directed that the gratuity amount shall be released to the sole respondent and the said order of release of gratuity is not opposed or assailed by the petitioner authority. However, to date no gratuity amount has been released to the sole respondent. Due to such order, the commutation value of pension has also not been paid till date., The sole respondent is the victim of circumstances as there was never any blemish in his entire service career and he was exonerated in all first three inquiries on the same allegation, with a type of punishment not recommended by the Central Complaints Committee. Surprisingly, the authority, on the same allegations, instituted a fourth inquiry and imposed a penalty just to victimise the sole respondent for reasons best known to them. The sole respondent was the unfortunate victim of interdepartmental rivalry and was traumatised due to unproved allegations; his innocence was upheld time and again by the first three inquiries, as discussed in detail by the Honourable High Court at paragraphs 40, 43, 46 and 47 of the impugned judgment while rightly setting aside the impugned order of penalty (pages 54, 70‑74, 75‑76 of the Supreme Court of India)., The petitioner authority contended that the penalty of withholding fifty percent of pension is just and sufficient. In this regard, the sole respondent submits that when all three inquiry reports exonerated him and even the Honourable High Court acquitted him of all charges and set aside the impugned order of penalty, the sole respondent has proved his honesty and is agitating his case for his reputation and honour as a decorated retired officer, Director General of SSB, apart from the unjustified penalty of withholding fifty percent of pension., Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following four questions fall for our consideration: I. Whether the Central Complaints Committee committed any egregious error in looking into the second complaint dated 18 September 2012? II. Whether the Central Complaints Committee committed any egregious error in putting questions to the witnesses in the course of the departmental enquiry and thereby vitiating the disciplinary proceedings? III. Whether the Central Complaints Committee could be said to have based its findings on mere conjectures and surmises? Whether the case on hand is one of no evidence? IV. Whether the Honourable High Court committed any egregious error in passing the impugned judgment and order?, Relevant Statutory Scheme and Case Law. Before adverting to the rival contentions canvassed on either side, we must look into the statutory scheme relating to complaints of sexual harassment., Sexual harassment is a pervasive and deeply rooted issue that has plagued societies worldwide. In India, it has been a matter of serious concern, and the development of laws to combat sexual harassment is a testament to the nation's commitment to addressing this problem. Sexual harassment has existed in India for centuries, but it was only in the latter half of the twentieth century that it began to gain legal recognition., The turning point against the growing social menace of sexual harassment of women in the workplace could be traced back to the path‑breaking decision of this Court in Vishaka and Others v. State of Rajasthan and Others reported in (1997) 6 SCC 241, whereby this Court recognized sexual harassment at the workplace as a violation of a woman's fundamental right to equality and dignity. The relevant observations are as follows: 1. This writ petition has been filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With increasing awareness and emphasis on gender justice, there is an increase in the effort to guard against such violations; and the resentment towards incidents of sexual harassment is also increasing. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focusing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of gender equality; and to prevent sexual harassment of working women in all workplaces through judicial process, to fill the vacuum in existing legislation. 2. The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of a social worker in a village of Rajasthan. That incident is the subject‑matter of a separate criminal action and no further mention of it is necessary. The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate; and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfil this felt and urgent social need. 3. Each such incident results in violation of the fundamental rights of gender equality and the right to life and liberty. It is a clear violation of the rights under Articles 14, 15 and 21 of the Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Article 19(1)(g) to practice any profession or to carry out any occupation, trade or business. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. A writ of mandamus in such a situation, if it is to be effective, needs to be accompanied by directions for prevention, as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a 'safe' working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum., In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the contents of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for implementing the international conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in the Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is therefore available till Parliament enacts legislation to expressly provide measures needed to curb the evil., This Court in Vishaka further embarked on an innovative judicial process for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse by laying down the essential principles for preventing and redressing sexual harassment, including the creation of internal complaints committee at workplaces, awareness programmes, and punitive measures against the offenders. These guidelines, now popularly known as the Vishaka Guidelines, set a foundation for the development of comprehensive legislation on sexual harassment. The relevant observations are as follows: 16. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasized that this would be treated as the law declared by this Court under Article 141 of the Constitution. 17. The guidelines and norms prescribed herein are as follows: HAVING REGARD to the definition of human rights in Section 2(d) of the Protection of Human Rights Act, 1993. TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in workplaces and that enactment of such legislation will take considerable time, it is necessary and expedient for employers in workplaces as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women: 1. Duty of the Employer or other responsible persons in workplaces and other institutions: It shall be the duty of the employer or other responsible persons in workplaces or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required. 2. Definition: For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as: a) physical contact and advances; b) a demand or request for sexual favours; c) sexually coloured remarks; d) showing pornography; e) any other unwelcome physical, verbal or non‑verbal conduct of sexual nature. Where any of these acts is committed in circumstances where the victim has a reasonable apprehension that in relation to the victim's employment or work whether she is drawing salary, honorarium or voluntary, whether in Government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment. Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto. 3. Preventive Steps: All employers or persons in charge of workplace whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps: (a) Express prohibition of sexual harassment as defined above at the workplace should be notified, published and circulated in appropriate ways. (b) The rules/regulations of government and public sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender. (c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946. (d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at workplaces and no woman employee should have reasonable grounds to believe that she is disadvantaged in connection with her employment. 4. Criminal Proceedings: Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law, the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. In particular, it should ensure that victims, or witnesses are not victimised or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer. 5. Disciplinary Action: Where such conduct amounts to misconduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules. 6. Complaint Mechanism: Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer's organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time‑bound treatment of complaints. 7. Complaints Committee: The complaint mechanism referred to in (6) above should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality. The Complaints Committee should be headed by a woman and not less than half of its members should be women. Further, to prevent the possibility of any undue pressure or influence from senior levels, such Complaints Committee should involve a third party, either an NGO or other body familiar with the issue of sexual harassment. The Complaints Committee must make an annual report to the Government Department concerned of the complaints and action taken by them. The employers and person‑in‑charge will also report on compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department. 8. Workers’ Initiative: Employees should be allowed to raise issues of sexual harassment at workers' meetings and in other appropriate forums and it should be affirmatively discussed in employer‑employee meetings. 9. Awareness: Awareness of the rights of female employees in this regard should be created, in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in a suitable manner. 10. Third‑party Harassment: Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in‑charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action. 11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by employers in the private sector. 12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993., The Court in Medha Kotwal Lele and Others v. Union of India and Others reported in (2013) 1 SCC 297, decided on 19 October 2012, expressed anguish at the failure of the Union and State Governments in complying with the Vishaka guidelines, particularly the constitution of the complaints committee, and issued a writ of continuing mandamus to ensure due compliance of the guidelines., The relevant observations are reproduced below: 43. As the largest democracy in the world, we have to combat violence against women. We are of the considered view that the existing laws, if necessary, be revised and appropriate new laws be enacted by Parliament and the State Legislatures to protect women from any form of indecency, indignity and disrespect at all places (in their homes as well as outside), prevent all forms of violence, domestic violence, sexual assault, sexual harassment at the workplace, etc., and provide new initiatives for education and advancement of women and girls in all spheres of life. After all they have limitless potential. Lip service, hollow statements and inert and inadequate laws with sloppy enforcement are not enough for true and genuine upliftment of our half most precious population, the women. 44. In what we have discussed above, we are of the considered view that guidelines in Vishaka should not remain symbolic and the following further directions are necessary until legislative enactment on the subject is in place: 44.1. The States and Union Territories which have not yet carried out adequate and appropriate amendments in their respective Civil Services Conduct Rules shall do so within two months from today by providing that the report of the Complaints Committee shall be deemed to be an inquiry report in a disciplinary action under such Civil Services Conduct Rules. In other words, the disciplinary authority shall treat the report/findings of the Complaints Committee as the findings in a disciplinary inquiry against the delinquent employee and shall act on such report accordingly. The findings and the report of the Complaints Committee shall not be treated as a mere preliminary investigation or inquiry leading to disciplinary action but shall be treated as a finding/report in an inquiry into the misconduct of the delinquent. 44.2. The States and Union Territories which have not carried out amendments in the Industrial Employment (Standing Orders) Rules shall now carry out amendments on the same lines, as noted above in paragraph 44.1 within two months. 44.3. The States and Union Territories shall form an adequate number of Complaints Committees so as to ensure that they function at taluka level, district level and State level. Those States and/or Union Territories which have formed only one committee for the entire State shall now form an adequate number of Complaints Committees within two months from today. Each such Complaints Committee shall be headed by a woman and, as far as possible, an independent member shall be associated. 44.4. The State functionaries and private and public sector undertakings/organizations/bodies/institutions shall put in place sufficient mechanism to ensure full implementation of Vishaka guidelines and further provide that if the alleged harasser is found guilty, the complainant victim is not forced to work with/under such harasser and, where appropriate and possible, the alleged harasser should be transferred. Further provision should be made that harassment and intimidation of witnesses and the complainants shall be met with severe disciplinary action. 44.5. The Bar Council of India shall ensure that all Bar Associations in the country and persons registered with the State Bar Councils follow Vishaka guidelines. Similarly, the Medical Council of India, Council of Architecture, Institute of Chartered Accountants, Institute of Company Secretaries and other statutory institutes shall ensure that the organisations, bodies, associations, institutions and persons registered/affiliated with them follow the guidelines laid down by Vishaka. To achieve this, necessary instructions/circulars shall be issued by all the statutory bodies such as the Bar Council of India, Medical Council of India, Council of Architecture, Institute of Company Secretaries within two months from today. On receipt of any complaint of sexual harassment at any of the places referred to above the same shall be dealt with by the statutory bodies in accordance with Vishaka guidelines and the guidelines in the present order., The relevant statutory rules applicable to the case on hand are the Central Civil Services (Conduct) Rules, 1964 (the 1964 CCS Rules) and the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (the 1965 CCS Rules) enacted in exercise of the powers conferred by the proviso to Article 309 and Clause 5 of Article 148 of the Constitution of India., Part VI of the 1965 CCS Rules contains the relevant provisions relating to disciplinary proceedings and imposition of penalties for government servants in the central civil services and posts, and Rule 14 therein stipulates the ordinary procedure and process for imposition of major penalties. Pursuant to the decisions of this Court in Vishaka and Medha Kotwal Lele, the CCS Rules underwent several amendments whereby new provisions specifically dealing with sexual harassment were inserted, more particularly Rule 3C in the 1964 CCS Rules along with a new proviso to Rule 14(2) of the 1965 CCS Rules. The said provisions conjointly made sexual harassment punishable with major penalties and specifically made the Vishaka Guidelines applicable to disciplinary proceedings in relation to complaints of sexual harassment. The provisions are enumerated below: 3C. Prohibition of sexual harassment of working women. (1) No Government servant shall indulge in any act of sexual harassment of any woman at any workplace. (2) Every Government servant who is in charge of a workplace shall take appropriate steps to prevent sexual harassment to any woman at the workplace. Explanation: (i) For the purpose of this rule, sexual harassment includes any one or more of the following acts or behaviour (whether directly or by implication) namely (a) physical contact and advances; (b) a demand or request for sexual favours; (c) making sexually coloured remarks; (d) showing pornography; (e) any other unwelcome physical, verbal or non‑verbal conduct of a sexual nature. (ii) The following circumstances, among other circumstances, if it occurs or is present in relation to or connected with any act or behaviour of sexual harassment may amount to sexual harassment: (a) implied or explicit promise of preferential treatment in employment; (b) implied or explicit threat of detrimental treatment in employment; (c) implied or explicit threat about her present or future employment status; (d) interference with her work or creating an intimidating or offensive or hostile work environment for her; (e) humiliating treatment likely to affect her health or safety. (iii) 'Workplace' includes: (a) any department, organisation, undertaking, establishment, enterprise, institution, office, branch or unit which is established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the Central Government; (b) hospitals or nursing homes; (c) any sports institute, stadium, sports complex or competition or games venue, whether residential or not used for training, sports or other activities relating thereto; (d) any place visited by the employee arising out of or during the course of employment including transportation provided by the employer for undertaking such journey; (e) a dwelling place or a house., Procedure for imposing major penalties. (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850, where such inquiry is held under that Act. (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. Provided that where there is a complaint of sexual harassment within the meaning of Rule 3C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
id_1240	3	In addition to the amendments in the Central Civil Services Rules, the Standing Order No. 1 of 2006 (Grievances Redressal Mechanism: To Redress Grievances of Women/Sexual Harassment at Workplace) was issued by the Directorate General, Sashastra Seema Bal, New Delhi, delineating the entire framework and procedure of the grievance redressal mechanism relating to sexual harassment at workplace., The Constitution of India has given women the fundamental right to equality and the right not to be discriminated against on grounds of religion, caste and sex. Article 15(3) permits the State to make special provisions in favour of women by enacting laws or provisions so as to advance their social, economic and political condition and to accord them parity., Sexual harassment of women at the workplace violates their sense of dignity and right to earn a living with dignity and is against their fundamental rights and basic human rights. The International Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted in 1979 at Beijing also recognized the right of women to equality at the workplace and states that women shall not be subjected to sexual harassment at workplaces; such harassment vitiates the working environment., The Hon’ble Supreme Court of India, in the matter of Vishaka and others v. State of Rajasthan and others (AIR 1997 SC 3011), while recognizing the International Convention and norms, interpreted gender of women in relation to work and held that sexual harassment of women at the workplace, which is against their dignity, is a clear violation of the fundamental rights of gender equality and the right to life and liberty enshrined in Articles 14, 15 and 21 of the Constitution of India. It also violates the victim’s fundamental right under Article 19(1)(g) to practice any profession or to carry out any occupation, trade or business. Gender equality includes protection from sexual harassment and the right to work with dignity., In the absence of an enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, especially at the workplace, the Hon’ble Supreme Court of India laid down guidelines and norms for compliance at all workplaces and institutions. Under Article 141 of the Constitution, these guidelines and norms of the Supreme Court of India are required to be treated as law., The National Commission for Women, a statutory and autonomous body constituted by the Government of India, works for justice for women, safeguarding their rights, and promoting women’s empowerment. The NCW consequently formulated a code of conduct for the workplace putting down the Supreme Court guidelines in a simple manner, which has been widely circulated. Arrangements at various levels have been made to ensure that women employed in departments work with utmost dignity and are free from all types of sexual harassment. Accordingly, the following scheme of arrangements has been devised for Sashastra Seema Bal., Sexual harassment includes any unwelcome sexually determined behaviour by any person, either individually or in association with others, or by any person in authority, whether directly or by implication, such as physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, eve‑teasing, unsavoury remarks, jokes causing or likely to cause awkwardness or embarrassment, innuendos and taunts, gender‑based insults or sexist remarks, unwelcome sexual overtone in any manner such as obnoxious telephone calls, touching or brushing against any part of the body, displaying pornographic or other offensive or derogatory pictures, cartoons, pamphlets or sayings, forcible physical touch or molestation, physical confinement against one’s will and other acts likely to violate one’s privacy, and any other unwelcome physical, verbal or non‑verbal conduct of a sexual nature. It also includes any act or conduct by a person in authority belonging to one sex which denies or would deny equal opportunity in pursuit of career development or otherwise, making the environment at the workplace hostile or intimidating to a person of the other sex on the ground of sex., The head of the unit shall take all necessary steps at the workplace to prevent or deter the commission of acts of sexual harassment or acts outraging the modesty of a woman employee, ensure that a woman employee is not treated as a sex object, provide a proper grievance redressal and remedial mechanism in the unit, enforce an express prohibition of sexual harassment as defined above and have it notified, published and circulated appropriately, augment suitable work conditions in respect of work, leisure, health and hygiene to ensure that there is no hostile environment towards women and that no woman employee has reasonable grounds to believe she is disadvantaged in connection with employment, ensure suitable arrangements for prevention of sexual harassment resulting from an act or omission by any third party or outsider and provide necessary and reasonable assistance to the affected person in terms of support and preventive actions. Where such conduct amounts to a specific offence under the Indian Penal Code or any other law, the head of the unit or competent authority shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer, and they must not be victimised or discriminated against while dealing with complaints., Complaint committees at two levels will exist in Sashastra Seema Bal: a Central Complaint Committee at the Directorate and a Frontier Complaint Committee at the Frontier level., The Central Complaint Committee will consist of: a Chairperson – one lady officer of the rank of Deputy Inspector General or Commandant appointed by the Inspector General (Personnel); Member I – one lady gazetted officer appointed by the Inspector General (Personnel); Member II – a nominee from a non‑governmental organisation recognised by the National Commission for Women or one counsellor from such an NGO, solicited by the Chairperson; and Member III – the Additional Director (Legal), Force Headquarters or the senior most law officer. The Frontier Complaint Committee will be constituted as follows: a Chairperson – one gazetted‑rank lady officer appointed by the Frontier Inspector General; Member I – one counsellor from an NGO recognised by the National Commission for Women, solicited by the Chairperson; and Member II – the Legal Officer of the Frontier (ex‑officio member)., The Chairman of the committee should be senior to the officer or official against whom the complaint is made. Where the Frontier Inspector General does not have a higher‑rank woman officer to appoint to the Frontier level committee, the Inspector General (Personnel) shall be contacted to seek placement of an officer from any Central Government organisation. If the required number of senior officers are not available within the organisation, members may be co‑opted from other Central Government departments. In case the complaint is against the Frontier Inspector General himself, the matter will be examined by the Central Complaint Committee. Proper safety and security of the complainant and witnesses shall be ensured by the concerned unit or office., The charter of the Central Complaint Committee and the Frontier Complaint Committee shall, inter alia, include: enquiry into any matter of sexual abuse in the organisation suo motu or on complaint, with the option to enquire at its own level or assign the task to the Frontier Committee; monitoring all such cases including reports received from Frontiers; keeping the Central Complaint Committee informed of all matters and working in close liaison with it; ensuring follow‑up action to its logical end; submitting enquiry reports to the Frontier Inspector General and soliciting further required action; submitting annual reports to the Ministry of Home Affairs and other bodies as required; submitting periodical reports to the Central Complaint Committee as prescribed; and performing any other duties assigned by the Director General or the Frontier authority., This procedure has been devised in pursuance of the Hon’ble Supreme Court of India judgment dated 26 April 2004 in the matter of Medha Kotwal Lele & Others v. Union of India & Others (Writ Petition (Criminal) No. 173‑177/1999) and the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training notification dated 01 July 2004 signed by Smt. Pratibha Mohan, Director (file No. 11012/5/2001/Estt.(A)), para 6 (Complaint Mechanism)., Any person aggrieved shall prefer a complaint before the Complaints Committee at the earliest point of time. The complaint shall contain all material and details concerning the alleged sexual harassment, including the names of the contravener, and shall be addressed to the Complaints Committee. If the complainant wishes to keep her identity confidential, she may address the complaint to the Frontier Inspector General or Inspector General (Personnel, Frontier Headquarters) and hand it over in person or in a sealed cover. Upon receipt, the Frontier Inspector General shall retain the original complaint and send a gist containing all material and relevant details, except the name of the complainant, to the Complaints Committee., As soon as an enquiry into any complaint of sexual harassment is entrusted to the Complaints Committee, the Chairperson shall open a daily order sheet to proceed with the case as envisaged in Rule 14 of the Central Civil Services (Conduct, Discipline and Appeal) Rules 1965 and maintain it throughout the enquiry. The entries in the daily order sheet are to be signed by the Chairperson of the Complaints Committee, the alleged officer or official and the witnesses as the case may be., In the preliminary hearing the Chairperson shall serve a gist of the complaint to the alleged officer or official (in the form of articles of charge) and ask whether he pleads guilty. If the charges are denied, the complainant shall be asked to produce her witnesses, if any, before the Complaints Committee for recording their statements. Cross‑examination of the witnesses shall be allowed by the complainant and the alleged officer. Cross‑examination of the complainant by the alleged officer is permissible under the Indian Evidence Act 1872, subject to directions laid down by the Supreme Court of India in Sakshi v. Union of India & Others (AIR 2004 SC 3566), which require that questions put in cross‑examination on behalf of the accused, relating directly to the incident, be given in writing to the Chairperson, who may put them to the victim or witnesses in a clear and non‑embarrassing language. The cross‑examination must be conducted with strict regard to decency and must not affront the dignity of the woman., The Committee shall decide the relevance of questions and give the aggrieved party an opportunity to be heard. A Presenting Officer may not be appointed, but a Defence Assistant shall be provided during the enquiry, and the enquiry shall be completed as per the provisions of the Central Civil Services (Conduct, Discipline and Appeal) Rules 1965 or any other applicable rules. Statements of witnesses shall be authenticated by the signatures of the witnesses, the alleged officer or official and the Chairperson. After recording the statements of witnesses, the alleged officer or official shall be given an opportunity to produce a defence, if any. The Committee shall give its findings or opinion after recording the defence and the proceedings of cross‑examination of defence witnesses and documents. The report of the Complaints Committee shall be deemed an inquiry report under the Central Civil Services (Conduct, Discipline and Appeal) Rules, and the disciplinary authority shall act on the report in accordance with the rules., The Frontier Complaints Committee shall prepare periodical reports giving a full account of its activities in the prescribed format (date of incident, place, names and ranks of complainant and respondent, brief allegation, date of receipt, FIR details if any, action taken and present status with supporting documents) and forward a copy to the Central Complaint Committee. The Central Complaint Committee will submit an annual report to the Ministry of Home Affairs and other bodies as required. The Frontiers will submit reports to the Directorate half‑yearly, in June and December. Senior officers during their visits or inspections of subordinate formations will reiterate the instruction in meetings and Sainik Sammelans, review complaints received, and ensure a proper working environment for women without discrimination. Awareness of the rights of female employees should be created by prominently notifying and displaying the guidelines at appropriate places, and women employees should be allowed to raise issues of sexual harassment through personal interviews, orderly rooms, welfare meetings, Sainik Sammelans, etc. Nothing in these standing orders shall prejudice any right available to the employee or prevent any person from seeking legal remedy under the National Commission for Women Act 1990, Protection of Human Rights Act 1993 or any other law in force., The National Commission for Women has recommended proactive steps such as meetings with women officers and members of the Complaints Committee in small groups, to facilitate informal exchange of views on handling sexual harassment matters and to build confidence for women to progress professionally. Accordingly, members of the Frontier level Complaints Committee will organise such meetings with all women employees within their operational jurisdiction as frequently as possible, include a progress report on the number of meetings, participants and outcomes in the half‑yearly report to the Central Committee, and the Inspector General concerned will monitor these visits to ensure positive results., Rule 3C of the 1964 Central Civil Services Rules and the proviso to Rule 14(2) of the 1965 Central Civil Services Rules, together with the 2006 Standing Order, encompass the entire legislative scheme for dealing with sexual harassment at the workplace in connection with the Central civil services and posts. The proviso to Rule 14(2) provides that in an inquiry into sexual harassment under the 2006 Standing Order, the general procedure laid down in the 1965 Rules shall also be applicable as far as practicable. The expression ‘as far as practicable’ was examined by this Court in Aureliano Fernandes v. State of Goa and Others (2023 SCC OnLine SC 621), where it was held that the expression provides flexibility for achieving a balance between sensitivity and fairness in an inquiry into sexual harassment, allowing a reasonable deviation from the Rules but not an unreasonable one., It is well settled that in disciplinary proceedings the inquiry authority and the disciplinary authority are the fact‑finding authorities, and courts exercising judicial review should not sit in appeal and re‑appreciate the evidence or substitute their own findings. The scope of judicial review is limited to the propriety of the decision‑making process and the fairness of the inquiry procedure, as held by this Court in B.C. Chaturvedi v. Union of India & Others (1995 6 SCC 749). Judicial review is not an appeal but a review of the manner in which the decision is made, ensuring fair treatment and that the inquiry complies with natural justice. The Court does not act as an appellate authority to re‑appreciate evidence; it may interfere only where the inquiry was conducted in violation of natural justice, statutory rules, or where the conclusion is unsupported by evidence or so unreasonable that no reasonable person could have reached it., In Apparel Export Promotion Council v. A.K. Chopra (1999 1 SCC 759), the Supreme Court observed that courts should not be swayed by insignificant discrepancies or hyper‑technicalities. Allegations must be appreciated in the context of the entire case, and courts must be cautious before showing any sympathy or leniency towards the delinquent. The courts are obliged to rely on any evidence of the complainant that inspires confidence, and such cases must be dealt with great sensitivity. Sympathy towards a superior officer in cases of sexual harassment is misplaced, and lenient action would have a demoralising effect on women employees., In Union of India & Others v. Mudrika Singh (2021 SCC OnLine SC 1173), the Supreme Court cautioned courts against invalidating inquiries into sexual harassment on specious pleas and hyper‑technical interpretations of service rules. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 penalises several misconducts of a sexual nature and mandates mechanisms for redressal. However, transformative legislation may not aid aggrieved persons if appellate mechanisms turn the process into a punishment. Courts must uphold the spirit of the right against sexual harassment, which is part of the right to life and dignity under Article 21 of the Constitution, and be mindful of power dynamics in such cases., The High Court observed that the Disciplinary Authority had constituted the Central Complaints Committee on the basis of the complaint filed by the victim. Since, at the time of its constitution, there was only one complaint – the complainant’s first complaint dated 30 August 2011 – the Central Complaints Committee was mandated and empowered to inquire only into that complaint, which gave rise to its formation., Clause 10(i) of the 2006 Standing Order prescribes the first step for making a complaint of sexual harassment: any person aggrieved shall prefer a complaint before the Complaints Committee at the earliest point of time. This provision makes it clear that the complaint mechanism begins with a complaint being made to the Complaints Committee, and any inquiry under Rule 14 of the 1965 Central Civil Services Rules read with the 2006 Standing Order begins the moment a complaint is made to a Complaints Committee specified in Clause 9, whether a Frontier Complaints Committee or a Central Complaints Committee., Thus, the complaint mechanism is activated as soon as a grievance is lodged with the appropriate Complaints Committee, and the subsequent inquiry proceeds in accordance with the applicable rules and guidelines.
id_1240	4	The use of the words Any person aggrieved shall prefer a complaint before the Complaints Committee at the earliest point of time connotes two pertinent aspects; first, that the word prefer stipulates that the said provision is an enabling provision that permits a person from making a complaint of sexual harassment directly to the complaints committee which is the designated committee for looking into such complaints and second, the said provision contains nothing which could be construed to inhibit the filing of a subsequent or additional complaint before the complaints committee. What emerges from the aforesaid is that irrespective of whether a prior complaint had already been made to any authority, a complaint regarding sexual harassment could be made under Clause 10(i) of the 2006 Standing Order to the complaints committee as well. Whether the additional or second complaint should be entertained by the complaints committee is a completely different tangent and must be ascertained on the touchstone of whether it was filed at the earliest point of time and whether the same has been mischievously filed at a belated stage to cause prejudice to the person charged. In the instant case, the Central Complaints Committee was constituted on 06.08.2012 and its first hearing took place on 25.09.2012 whereas the second complaint had been filed by the complainant before the Central Complaints Committee on 18.09.2012. Thus, the second complaint had been promptly preferred right after the Central Complaints Committee was constituted and duly before its first hearing., The High Court's reasoning that as the Central Complaints Committee was constituted on the basis of the first complaint, its scope of inquiry was restricted to its content, is completely erroneous inasmuch as the Central Complaints Committee owed its existence to the 2006 Standing Order and not to the complaint. Moreover, even if it is assumed for a moment that the complaints committee owed its existence to the complaint, Clause 10(i) of the 2006 Standing Order envisages filing of a complaint to the complaints committee, that is, it envisages a situation where after a complaints committee had come into existence, a complaint may be preferred to it., In the aforesaid context, we may refer to the decision of the Supreme Court of India in State of Haryana and Another v. Rattan Singh reported in (1977) 2 SCC 491, wherein the Court held that all material that are logically probative to a prudent mind ought to be permissible in disciplinary proceedings keeping in mind the principles of fair play. The relevant observations are reproduced below: It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The residuum rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record., In view of this unequivocal and clear proposition of law set out in Rattan Singh, it could be said that there was no legal bar on the Central Complaints Committee to look into the allegations levelled in the second complaint dated 18.09.2012. Since strict and technical rule of evidence and procedure does not apply to departmental enquiry, the connotation of evidence cannot be understood in a narrow technical sense as to include only that evidence adduced in a regular court of law when a person is examined as a witness by administering oath. There should not be any allergy to hearsay evidence provided it has reasonable nexus and credibility., In our judgment, the correct principle of law is found in the following observations of Diplock, J. in Regina v. Deputy Industrial Injuries Commissioner, Ex parte Moore reported in (1965) 1 Q.B. 456. These technical rules of evidence, however, form no part of the rules of natural justice. The requirement that a person exercising quasi‑judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non‑existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but that he must take into account any material which, as a matter of reason, has some probative value. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court of India does not entitle it to usurp this responsibility and to substitute its own view for his., From the above case law, it becomes clear that it is open to the adjudicating authority to accept, rely and evaluate any evidence having probative value and come to its own conclusion, keeping in mind judicial approach and objectivity, exclusion of extraneous material and observance of the rule of natural justice and fair play. In short, the essence of the doctrine is that fair opportunity should be afforded to the delinquent at the enquiry and he should not be hit below the belt. Moreover, the jurisdiction of the High Court of India in such cases is indeed limited. The High Court of India should not exercise appellate powers and substitute its findings for the findings recorded by the disciplinary authority. It is no doubt true that if there is no evidence or the decision is so unreasonable that no reasonable man could have ever come to it, or the decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it or that it is so absurd that one is satisfied that the decision‑maker must have taken leave of his senses, it calls for interference by a competent court of law., As discussed before, the Supreme Court of India in Apparel Export Promotion Council held that in sensitive matters such as sexual harassment and misconduct, there is an obligation to look into the entire evidence of the complainant that inspires confidence. What is discernible from the above is that in disciplinary proceedings documents and materials such as evidence or pleadings be it statement of defence or a complaint should be readily entertained by the courts and more so by the disciplinary and inquiry authorities irrespective of whether they are later actually relied upon or not in the ultimate decision making. Thus, it would be quite preposterous to hold that the complainant was precluded from making the second complaint before the Central Complaints Committee merely because she had already made one complaint to the IG, Frontier Headquarters, Guwahati., In the context of the second complaint, the only relevant aspect that requires consideration is whether any serious prejudice was caused to the respondent. It is not in dispute that the respondent was provided with a copy of the second complaint. It is also not in dispute that the respondent was aware of the nature of the allegations levelled in the second complaint. It is also not in dispute that ample opportunity was given to the respondent to meet with the allegations levelled in the second complaint. It is not as if the respondent was taken by surprise. In such circumstances, this aspect of the matter should have been looked into by the High Court of India on the anvil of the principle of test of prejudice., The test of prejudice is a well settled canon of law that may be applied where any procedural impropriety or violation of rule of audi alteram partem is alleged. The Supreme Court of India in State Bank of Patiala and Others v. S.K. Sharma reported in (1996) 3 SCC 364 held that the test is to ascertain whether the violation of such procedure or process resulted in a prejudice being caused or a loss of fair hearing. Does it mean that any and every violation of the regulations renders the enquiry and the punishment void or whether the principle underlying Section 99 CPC and Section 465 CrPC is applicable in the case of disciplinary proceedings as well? In our opinion, the test in such cases should be one of prejudice, as would be later explained in this judgment. But this statement is subject to a rider. The regulations may contain certain substantive provisions, for example, who is the competent authority to impose a particular punishment on a particular employee or officer. Such provisions must be strictly complied with. But there may be any number of procedural provisions which stand on a different footing. We must hasten to add that even among procedural provisions, there may be some provisions which are of a fundamental nature in the case of which the theory of substantial compliance may not be applicable. For example, take a case where a rule expressly provides that the delinquent officer or employee shall be given an opportunity to produce evidence or material in support of his case after the close of evidence of the other side. If no such opportunity is given at all in spite of a request therefor, it will be difficult to say that the enquiry is not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. The position can be stated in the following words: (1) Regulations which are of a substantive nature have to be complied with and in case of such provisions, the theory of substantial compliance would not be available. (2) Even among procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case, the theory of substantial compliance may not be available. (3) In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available. In such cases, complaint or objection on this score have to be judged on the touchstone of prejudice, as explained later in this judgment. In other words, the test is: all things taken together whether the delinquent officer or employee had or did not have a fair hearing., In our respectful opinion, the principles emerging from the decided cases can be stated in the following terms in relation to the disciplinary orders and enquiries: a distinction ought to be made between violation of the principle of natural justice, audi alteram partem, as such and violation of a facet of the said principle. In other words, distinction is between no notice or no hearing and no adequate hearing or, to put it in different words, no opportunity and no adequate opportunity. To illustrate, take a case where the person is dismissed from service without hearing him altogether (as in Ridge v. Baldwin (1964) AC 40; (1963) 2 All ER 66; (1963) 2 WLR 935). It would be a case falling under the first category and the order of dismissal would be invalid or void, if one chooses to use that expression (Calvin v. Carr (1980) AC 574; (1979) 2 All ER 440; (1979) 2 WLR 755, PC). But where the person is dismissed from service, say, without supplying him a copy of the enquiry officer's report (Managing Director, 1184: (1993) 25 ATC 704) or without affording him a due opportunity of cross‑examining a witness (K.L. Tripathi (1984) 1 SCC 43; 1984 SCC (L&S) 62) it would be a case falling in the latter category violation of a facet of the said rule of natural justice in which case, the validity of the order has to be tested on the touchstone of prejudice, i.e., whether, all in all, the person concerned did or did not have a fair hearing. It would not be correct in the light of the above decisions to say that for any and every violation of a facet of natural justice or of a rule incorporating such facet, the order passed is altogether void and ought to be set aside without further enquiry. In our opinion, the approach and test adopted in B. Karunakar (1993) 4 SCC 727; 1993 SCC (L&S) 1184; (1993) 25 ATC 704 should govern all cases where the complaint is not that there was no hearing (no notice, no opportunity and no hearing) but one of not affording a proper hearing (i.e., adequate or a full hearing) or of violation of a procedural rule or requirement governing the enquiry; the complaint should be examined on the touchstone of prejudice as aforesaid., We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee): (1) An order passed imposing a punishment on an employee consequent upon a disciplinary or departmental enquiry in violation of the rules, regulations or statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character. (2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case. (3) In the case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer or employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under no notice, no opportunity and no hearing categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer or employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer or government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer or employee asking for it. The prejudice is self evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle. (4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee. (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer or employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (including the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar (1993) 4 SCC 727; 1993 SCC (L&S) 1184; (1993) 25 ATC 704. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any rules, regulations or statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order or action the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between no opportunity and no adequate opportunity, i.e., between no notice or no hearing and no fair hearing. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it void or a nullity if one chooses to). In such cases, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer or employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle does not apply in the case of rule against bias, the test in which is laid down elsewhere.) (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court, Tribunal or Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them. (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public or State interest with the requirement of natural justice and arrive at an appropriate decision., In the case of State of U.P. v. Harendra Arora and Another reported in (2001) 6 SCC 392, the Supreme Court of India further expanded the applicability of the Test of Prejudice to even procedural provisions which are fundamental in nature with the following relevant observations: The matter may be examined from another viewpoint. There may be cases where there are infractions of statutory provisions, rules and regulations. Can it be said that every such infraction would make the consequent action void and/or invalid? The statute may contain certain substantive provisions, for example, who is the competent authority to impose a particular punishment on a particular employee. Such provision must be strictly complied with as in these cases the theory of substantial compliance may not be available. For example, where a rule specifically provides that the delinquent officer shall be given an opportunity to produce evidence in support of his case after the close of the evidence of the other side and if no such opportunity is given, it would not be possible to say that the enquiry was not vitiated. But in respect of many procedural provisions, it would be possible to apply the theory of substantial compliance or the test of prejudice, as the case may be. Even amongst procedural provisions, there may be some provisions of a fundamental nature which have to be complied with and in whose case the theory of substantial compliance may not be available, but the question of prejudice may be material. In respect of procedural provisions other than of a fundamental nature, the theory of substantial compliance would be available and in such cases objections on this score have to be judged on the touchstone of prejudice. The test would be, whether the delinquent officer had or did not have a fair hearing., We now proceed to consider the next question whether the respondent was asked by the Central Complaints Committee whether he pleaded guilty to the allegations levelled in the second complaint. The High Court after referring to the Central Complaints Committee's report found that, while the respondent was asked whether he pleaded guilty to the allegations made in the first complaint, there was nothing to indicate that the same exercise had been undertaken in respect of the second complaint., In the aforesaid context, we must look into Rule 14 sub‑rule (9) of the 1965 CCS Rules. The provision reads as under: 14. Procedure for imposing major penalties. (9) If the Government servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government servant thereon. The obligation on the part of the Authority to ask the delinquent whether he pleaded guilty or had any defence to make is only in the circumstances if the delinquent had not admitted any of the articles of charge in his written statement of defence or had not submitted any written statement of defence. Indisputably, in the case on hand, the respondent had filed his written statement of defence dealing with all allegations on the ten points framed for determination that were enquired into by the Committee and also cross‑examined all the witnesses on the same., In our opinion, mere violation of Rule 14(9) of the 1965 CCS Rules would not vitiate the entire inquiry. Rule 14(9) is only procedural., A similar view has been recently taken in Aureliano Fernandes wherein the Supreme Court of India rejected the delinquent's contention of prejudice, on the ground that all materials proposed to be used against him were duly furnished and that he had submitted his reply to the same as well. It is not in dispute that all the complaints received from time to time and the depositions of the complainants were disclosed to the appellant. He was, therefore, well aware of the nature of allegations levelled against him. Not only was the material proposed to be used against him during the inquiry furnished to him, he was also called upon to explain the said material by submitting his reply and furnishing a list of witnesses, which he did. Furthermore, on perusing the Report submitted by the Committee, it transpires that depositions of some of the complainants were recorded audio‑visually by the Committee, wherever consent was given and the appellant was duly afforded an opportunity to cross‑examine the said witnesses including the complainants. The charges levelled by all the complainants were of sexual harassment by the appellant with a narration of specific instances. Therefore, in the given facts and circumstances, non‑framing of the Articles of Charge by the Committee cannot be treated as fatal. Nor can the appellant be heard to state that he was completely in the dark as to the nature of the allegations levelled against him and was not in a position to respond appropriately., A four‑Judge bench of the Supreme Court of India in Managing Director, ECIL, Hyderabad and Others v. B. Karunakar and Others reported in (1993) 4 SCC 727 held that in order to determine if prejudice had been caused by a violation of a procedural rule or facet of natural justice, it must be shown that the violation had some bearing either upon the outcome or the punishment imposed. The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non‑furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an \unnatural expansion of natural justice\ which in itself is antithetical to justice. Hence, in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court or Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non‑supply of the report. If after hearing the parties, the Court or Tribunal comes to the conclusion that the non‑supply of the report would have made no difference to the ultimate findings and the punishment given, the Court or Tribunal should not interfere with the order of punishment.
id_1240	5	The Supreme Court of India should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. Applying the aforesaid dictum as laid by this Court, no prejudice could be said to have been caused to the respondent even if we believe that he was not asked to plead guilty to the second complaint. Had the respondent been asked if he pleaded guilty to the allegations levelled in the second complaint, then in such circumstances, would the result have been any different? The answer to this has to be an emphatic No. We say so because the respondent had denied all the ten charges which were framed against him. In other words, the respondent answered to all the ten points by way of his written statement of defence and even had an opportunity to cross‑examine the witnesses on each of the charges., We are of the view that the High Court completely failed to advertise itself to the principles laid down by this Court as aforesaid, and mechanically proceeded to set aside the order of punishment imposed by the disciplinary authority on the ground that there was nothing to indicate that the respondent was asked whether he pleaded guilty to the charges imputed in the second complaint without applying the principle of test of prejudice., Whether the Central Complaints Committee could have put questions to the witnesses in a departmental inquiry? Fact‑Finding Authority in Disciplinary Proceedings. The High Court observed that the Central Complaints Committee in the course of the inquiry had put questions to the prosecution witnesses, and even the examination‑in‑chief was recorded by it, and as such it played the role of a prosecutor which it could not have, thereby vitiating the inquiry proceedings., Ordinarily, in a disciplinary proceeding conducted under Rule 14 of the 1965 Central Civil Services (Conduct) Rules, the disciplinary authority as per Rule 14 sub‑rule 2 read with sub‑rule 5(c) may either conduct the inquiry itself or appoint an inquiry committee to conduct the inquiry. The inquiry committee may further appoint a presenting officer to present the case on its behalf in support of the articles of charge. It is worthwhile to note that it is the Inquiry Authority and the Disciplinary Authority who are the fact‑finding authorities in a disciplinary proceeding. Rule 14 is reproduced below: “Procedure for imposing major penalties. (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof … (5)(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the “Presenting Officer” to present on its behalf the case in support of the articles of charge.”, A perusal of the aforesaid makes it clear that, where a Presenting Officer has been appointed by the Disciplinary Authority, such Officer shall present the case in support of the articles of charge. Conversely, what logically transpires from the aforesaid is that, where no presenting officer has been appointed, the duty or role to present the case in support of the articles of charge falls back on the Disciplinary Authority or the Inquiry Authority as the case may be., This Court in Medha Kotwal Lele and Others v. Union of India and Others reported in (2013) 1 SCC 311 held that the complaints committee under the Vishaka Guidelines shall be deemed to be the Inquiry Authority. The relevant portion is reproduced below: “Complaints Committee as envisaged by the Supreme Court in its judgment in Vishaka case (1997) 6 SCC 241 … will be deemed to be an inquiry authority for the purposes of the Central Civil Services (Conduct) Rules, 1964 and the report of the Complaints Committee shall be deemed to be an inquiry report under the Rules. Thereafter the disciplinary authority will act on the report in accordance with the Rules.”, This Court in Sakshi v. Union of India and Others reported in (2004) 5 SCC 518 observed that quite often in sensitive matters, particularly those involving crime against women, the victims either due to fear or embarrassment were not able to openly disclose the entire incident. Often the victims during their testimony were put embarrassing questions by the accused with the sole purpose of confusing or suppressing out of shame. To remedy this, directions were issued by this Court that for cross‑examination of victims, the question would be given to the presiding officer who in turn would ask them in clear language which is not embarrassing. The relevant observations are reproduced below: “The mere sight of the accused may induce an element of extreme fear in the mind of the victim or the witnesses or can put them in a state of shock. In such a situation he or she may not be able to give full details of the incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement can be made where the victim or witnesses do not have to undergo the trauma of seeing the body or the face of the accused. Often the questions put in cross‑examination are purposely designed to embarrass or confuse the victims of rape and child abuse. The object is that out of the feeling of shame or embarrassment, the victim may not speak out or give details of certain acts committed by the accused. It will, therefore, be better if the questions to be put by the accused in cross‑examination are given in writing to the presiding officer of the court, who may put the same to the victim or witnesses in a language which is not embarrassing. There can hardly be any objection to the other suggestion given by the petitioner that whenever a child or victim of rape is required to give testimony, sufficient breaks should be given as and when required. The provisions of sub‑section (2) of Section 327 of the Criminal Procedure Code should also apply in inquiry or trial of offences under Sections 354 and 377 of the Indian Penal Code.”, The power and discretion of the complaints committee to put questions to the witnesses is further reflected, though implicitly, in Clause 10(viii) of the 2006 Standing Order which provides that the delinquent officer shall not cross‑examine the complainant directly and instead should hand over the questions to the chairperson of the committee who in turn would then put them to the complainant, to ensure no fear or embarrassment is caused to the complainant. The provision reads as under: “Cross examination of the witnesses should be allowed by the complainant and alleged officer. However, cross examination of complainant by the alleged officer is permissible as per Indian Evidence Act, 1872 subject to the directions as laid down by the Hon’ble Supreme Court of India in AIR 2004 SC 3566 – Sakshi vs. Union of India & Others, i.e., ‘Questions put in cross‑examination on behalf of the accused (charged officer in our case), which relate directly to the incident, should be given in writing to the Chairperson of the Complaints Committee who may put them to victim or witnesses in a language which is clear and NOT EMBARRASSING.’ The questions shall thus be vetted by the Chairperson of such Complaints Committee.”, There appears to be neither any statutory bar nor any logic to restrict the power of the complaints committee to put questions to the witnesses only to the context enumerated in the aforesaid provision. The complaints committee, being an inquiry authority and in some sense equivalent to a presiding officer of the court as inferred from Sakshi, must be allowed to put questions on its own if a proper, fair and thorough inquiry is to take place., If the observations of the High Court are accepted, it would lead to a chilling effect, whereby the complaints committee, which is deemed to be an inquiry authority, would be reduced to a mere recording machine. We fail to understand what other purpose the complaints committee, which is deemed to be an inquiry authority, would serve, if we are to hold that the complaints committee cannot put questions to the witnesses., Even otherwise, the aforesaid issue has been answered by this Court in Pravin Kumar v. Union of India and Others reported in (2020) 9 SCC 471. The very same argument was canvassed before a three‑Judge Bench that the Inquiry Officer could not have put his own questions to the prosecution witnesses and could also not have cross‑examined the witnesses. In the said case, it was argued that the same would amount to making the prosecutor the judge. This argument was negatived by the Court observing in paragraph 31 as under: “Significant emphasis has been placed by the appellant on the fact that the enquiry officer put his own questions to the prosecution witness and that he cross‑examined the witnesses brought forth by the defence. This, it is claimed, amounts to making the prosecutor the Judge, in violation of the natural justice principle of nemo judex in sua causa. However, such a plea is misplaced. It must be recognised that, under Section 165 of the Indian Evidence Act, Judges have the power to ask any question to any witness or party about any fact, in order to discover or to obtain proper proof of relevant facts. While strict rules of evidence are inapplicable to disciplinary proceedings, enquiry officers often put questions to witnesses in such proceedings in order to discover the truth. Indeed, it may be necessary to do such direct questioning in certain circumstances. Further, the learned counsel for the appellant, except for making a bald allegation that the enquiry officer has questioned the witnesses, did not point to any specific question put by the officer that would indicate that he had exceeded his jurisdiction. No specific malice or bias has been alleged against the enquiry officer, and even during the enquiry no request had been made to seek a replacement, thus evidencing how these objections are nothing but an afterthought.”, If Section 165 of the Indian Evidence Act, 1872 permits a Judge to put questions to the parties or to the witnesses in order to discover or obtain proper proof of relevant facts and this provision is widely used by the judges throughout the country, we fail to understand how the complaints committee, after being equated with a judge in a judicial proceeding, should be denied that privilege. However, it would be a different situation if a specific case of personal bias is made out against the members of the committee. After all, the very purpose of the disciplinary proceedings is to reach to the bottom of the fact while affording adequate opportunities to the affected party., Thus, the High Court was not correct in taking the view that the proceedings stood vitiated because the Central Complaints Committee put questions to the prosecution witnesses., Whether the Central Complaints Committee based its findings on conjectures and surmises? Whether the case on hand is one of no evidence? Principle of No Evidence in Service Jurisprudence. It is well settled that the findings of fact recorded in the course of any domestic inquiry, unless they are collateral or jurisdictional, are exempt from judicial review and that the court exercising writ jurisdiction should not sit in appeal over the ultimate decision based on such findings and review it on merits. However, there are two well‑known exceptions to the said rule. First, the case must not be one where there is no evidence to support the findings. Secondly, the ultimate decision based on such findings must not be perverse or unreasonable. These two concepts have affinity with each other; indeed, the no‑evidence principle clearly has something in common with the principle that perverse or unreasonable action is unauthorised and ultra vires. As pointed out by Lord Radcliffe in Edward (Inspector of Taxes, Bairstow) (1956) Appeal Cases, 14 at page 36, “I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test; in each of these cases, according to Lord Radcliffe, there would be an error in point of law requiring the court's intervention.”, We must explain the true meaning of the no‑evidence principle. The rule has been adopted in India from England and we may, therefore, ascertain, in the first instance, how the rule over there is understood. Professor H.W.R. Wade in his treatise on Administrative Law, Fourth Edition, observed as follows: “It is one thing to weigh conflicting evidence which might justify a conclusion either way. It is another thing altogether to make insupportable findings. This is an abuse of power and may cause grave injustice. At this point, therefore, the court is disposed to intervene. No evidence does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence. There is, indeed, the well‑established rule that to find facts on no evidence is to err in law.”, The learned author has pointed out that the no‑evidence rule has some affinity with the substantial evidence rule of American law which, as explained by Bernard Schwartz in his treatise on Administrative Law, 1976 Edition, at page 595, means such evidence as might lead a reasonable person to make a finding. In other words, according to the learned author, the evidence in support of a fact‑finding is substantial when from it an inference of existence of the fact may be drawn reasonably., The earliest English decision which has touched upon the concept of no evidence is that of the Court of Appeal in The King v. Carson Roberts reported in 1908 (1) K.B., 407. The question in that case was whether the superior court having the power to issue a writ of certiorari, if it appeared to it that the decision of the auditor in regard to disallowances and surcharges, under the Public Health Act, 1875, was erroneous, could review the same only when such decision was erroneous in point of law and not when the auditor had come to an erroneous conclusion in fact. Fletcher Moulton L.J. observed in that case as follows: “It is admitted by the appellant that if there was no evidence on which any tribunal could reasonably come to the conclusion to which the auditor has come, the superior Courts have a jurisdiction to quash the surcharge, and in my opinion this is the case here.”, In the Deputy Industrial Injuries Commissioner case, two learned Law Lords made certain observations on the true content of the no‑evidence rule by treating the said rule as a principle of natural justice. Willmar L.J. observed as under: “Where so much is left to the discretion of the Commissioner, the only real limitation, as I see it, is that the procedure must be in accordance with natural justice. This involves that any information on which the Commissioner acts, whatever its source, must be at least of some probative value.” Diplock L.J. made the following pertinent observations: “Where, as in the present case, a personal bias or mala fides on the part of the deputy commissioner is not in question, the rules of natural justice which he must observe can, in my view, be reduced to two. First, he must base decision on evidence, whether a hearing is requested or not. Secondly, if a hearing is requested, he must fairly listen to the contentions of all persons who are entitled to be represented at the hearing. In the context of the first rule, evidence is not restricted to evidence which would be admissible in a court of law. The requirement that a person exercising quasi‑judicial functions must base his decision on evidence means no more than that it must be based upon material which tends logically to show the existence or non‑existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue. The supervisory jurisdiction of the High Court does not entitle it to usurp this responsibility and to substitute its own view for his.”, In French Kier Developments Ltd. v. Secretary of State for the Environment reported in 1977 (1) All ER 297, the jurisdiction of the Court of Queen’s Bench Division was invoked for quashing the appellate decision of the Secretary of State confirming the refusal of permission for development. The Secretary of State accepted the findings of fact recorded by the Inspector at the conclusion of the public inquiry which followed the Borough Council’s refusal of permission but not his recommendation that the appeal should be allowed. The Secretary of State, in deciding the appeal, took into consideration the contents of a document and accepted them as correct, notwithstanding the fact that the Inspector had regarded the document as of no evidential value. The argument before Willis J. was that the Secretary of State should have ignored the document, or any reference to its contents, as the Inspector did, since it was not produced by any witness, its provenance was unexplained and it could not be tested by cross‑examination. The learned Judge observed: “It hardly needs to be said that legal rules of evidence are not applied at local inquiries, and both oral and documentary evidence is freely admitted in circumstances where even the more relaxed rules of evidence at the present time would not allow of its admission in a court of law. Nonetheless some limit must surely be imposed in fairness to an appellant on the scope of so‑called evidence which by no stretch of the imagination can be said to have the slightest evidential value. This must, I should have thought, particularly be so when if such evidence is considered, it is used to support a conclusion unfavourable to the appellant. I think the Inspector was right to ignore this document and the Secretary of State was wrong in the particular circumstances to attach any weight to it or its contents.”, The aforesaid decisions would indicate that the English courts have not construed the words no evidence narrowly. The rule of no evidence is attracted not only in cases where there is complete lack of evidence, that is to say, where there is not a shred of evidence, but also in cases where the evidence, if any, is not capable of having any probative value, or on the basis of which no tribunal could reasonably and logically come to the conclusion about the existence or non‑existence of facts relevant to the determination. According to the English decisions, although a domestic tribunal may act on evidence not admissible according to the legal rules in a court of law, yet unless such evidence has some probative value in the sense mentioned above, it would be a breach of natural justice and/or an error of law to base any adverse decision thereon., In State of Andhra Pradesh and Others v. S. Sree Rama Rao reported in AIR 1963 SC 1723, it was held that in considering whether a public officer is guilty of the misconduct charged against him the rule followed in criminal trials with regard to the establishment of charge by evidence beyond reasonable doubt was not applicable. In a proceeding under Article 226, the High Court, not being a court of appeal over the decision of the domestic tribunal, was concerned to determine whether the inquiry was held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice were not violated. The important observations were: “Where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence 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 to arrive at an independent finding on the evidence if there be some legal evidence on which their findings can be based; the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.”, This decision was approvingly referred to and relied upon in State of Andhra Pradesh and Others v. Chitra Venkata Rao reported in (1975) 2 SCC 89. In Union of India v. H.C. Goel reported in AIR 1964 SC 364, the question as to the amplitude and width of the judicial review under Article 226 fell for consideration in the context of the disciplinary proceedings against Government servants. It was observed that the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all and that there was little doubt that a writ of Certiorari can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceeding is based on no evidence. A conclusion on a question of fact, it was held, would be assailable if it is manifest that there is no evidence to support it even assuming bona fides of the disciplinary authority. The following observations made at page 369 are material: “In exercising its jurisdiction under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is 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? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence illegally the impugned conclusion follows or not.”, In R. Mahalingam v. Chairman, Tamil Nadu Public Service Commission and Another reported in (2013) 14 SCC 379, this Court laid down the scope of judicial review as regards the findings of the disciplinary proceedings with the following relevant observations: “The scope of judicial review in matters involving challenge to the disciplinary action taken by the employers is very limited. The courts are primarily concerned with the question whether the enquiry has been held by the competent authority in accordance with the prescribed procedure and whether the rules of natural justice have been followed. The court can also consider whether there was some tangible evidence for proving the charge against the delinquent and such evidence reasonably supports the conclusions recorded by the competent authority. If the court comes to the conclusion that the enquiry was held in consonance with the prescribed procedure and the rules of natural justice and the conclusion recorded by the disciplinary authority is supported by some tangible evidence, then there is no scope for interference with the discretion exercised by the disciplinary authority to impose the particular punishment except when the same is found to be wholly disproportionate to the misconduct found proved or shocks the conscience of the court.”, This Court in Aureliano Fernandes while discussing the extent to which a court can interfere with respect to the departmental proceedings conducted pursuant to the allegations of sexual harassment, made the following relevant observations: “Disciplinary Authority is the sole judge of facts and once findings of fact, based on appreciation of evidence are recorded, the High Court in its writ jurisdiction should not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The Court is under a duty to satisfy itself that an inquiry into the allegations of sexual harassment by a Committee is conducted in terms of the service rules and that the concerned employee gets a reasonable opportunity to vindicate his position and establish his innocence.”, In West Bokaro Colliery (TISCO Ltd.) v. Ram Pravesh Singh reported in (2008) 3 SCC 729, it was held that in a departmental inquiry, the standard of proof is based on preponderance of probability and not beyond reasonable doubt. The relevant observation is: “The Tribunal has set aside the report of the enquiry officer and the order of dismissal passed by the punishing authority by observing that the charges against the respondent were not proved beyond reasonable doubt. It has repeatedly been held by this Court that the acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is a well‑settled principle of law that the yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities.”, Similarly in Apparel Export case this Court held that inquiries in respect of sexual harassment must be examined on broader probabilities keeping in mind the entire background of the case. Thus, in a disciplinary inquiry, the standard of proof is preponderance of probabilities and the courts must only interfere where the findings are either perverse or based on no evidence at all., Bearing the aforesaid principles of law in mind, we must look into some relevant portion of the evidence taken into consideration by the Central Complaints Committee for arriving at the conclusion that the charges are held to be proved: Shri Mast Ram Thakur, SFA(H) (PW3) stated that the respondent used to quite often call the complainant in his chamber and made her sit for hours without any office work. He further stated that quite often on such occasions, the respondent would draw the curtains of his chamber. He also stated that the complainant had once conveyed to him that the respondent used to make proposals of marriage to her. Nothing substantial could be elicited from the cross‑examination of Mast Ram Thakur.
id_1240	6	In fact, what has been deposed by Mast Ram Thakur as referred above, has not even been remotely disputed in the cross‑examination by way of even a suggestion., Shri Rynjan Singh, peon (Petitioner Witness 8) and Shri Chandan Sarkar (Petitioner Witness 6) stated that they had seen the complainant being made to sit in the respondent’s chamber for hours. Shri Ashok Kumar, Personal Assistant (Petitioner Witness 17) further stated that the complainant had once told him that after being called into his chamber the respondent would often comment on her beauty and clothes., Shri P. K. Rawat, Upper Division Clerk (Petitioner Witness 5), Shri Ranjit Patoi, Assistant (Petitioner Witness 7) and Shri Samir Nandi, Senior Financial Assistant (General) (Petitioner Witness 14) have all stated that they had seen the respondent pour himself a glass of water in his chamber and then go to the complainant’s room five to six times a day, and while drinking he would always be looking at the complainant. Shri Rynjan Singh, peon (Petitioner Witness 8) stated that earlier the respondent used to drink water in his own chamber, but once the complainant joined the office, he started frequently visiting her room to drink water., Shri Rabi Ram Biswas, sweeper (Petitioner Witness 12) stated that he had seen the respondent touching the shoulder of the complainant while teaching her to operate a laptop. Smt. Pema Narzary, Assistant Field Officer (Women) (Petitioner Witness 9) stated that the complainant had once told her how the respondent used to call her to his chamber on the pretext of teaching her to operate the laptop. Shri Rynjan Singh, peon (Petitioner Witness 8) stated that on one occasion, the respondent shut the door of his chamber while teaching the complainant and when the complainant entered the respondent’s chamber the respondent got startled, moved away from the complainant and instructed her to knock before entering., Shri Rabi Ram Biswas, peon (Petitioner Witness 12) stated that whenever the complainant would leave the office, the respondent would also leave soon thereafter in a hurry. The other staff presumed that this hurry was due to the respondent’s desire to drive the complainant home. Shri Rynjan Singh, peon (Petitioner Witness 8) stated that he had seen the respondent offering a lift to the complainant and that it was only the complainant to whom the respondent used to offer. Smt. Pema Narzary, Assistant Field Officer (Women) (Petitioner Witness 9) stated that she had heard from other office staff that the respondent would offer lifts to the complainant in his official vehicle., Shri B. B. Sonar, chowkidar (Petitioner Witness 4) stated that once while the complainant was standing in the ladies queue for booking tickets at the railway station, the respondent approached her from behind and placed his hand on her shoulder. This made the complainant very uncomfortable and, on shrugging off his shoulder, the respondent withdrew his hand. He further stated that he saw the complainant looking upset and uncomfortable. To the aforesaid allegations, the respondent offered his explanation saying that he had done so as it was his bounden duty to protect the dignity of the complainant from the boisterous crowd and also to make people know at the railway station that the complainant was not alone., Shri Mast Ram Thakur, Senior Financial Assistant (Higher) stated that he overheard the respondent making sexually coloured remarks to the complainant at the railway station saying, “aap to jaa rehen hain, meri jaan jaa rahi hai. Aap chinta mat karo main tumhara dimag taza karne ke liye bhej raha hoon, vahaan se aane ke baad tum shrimati Paul banogi.”, Shri B. B. Sonar, chowkidar (Petitioner Witness 4), Shri A. Deben Singh, Assistant Field Officer (Male) (Petitioner Witness 13), Shri Surjit Singh, Driver (Petitioner Witness 2), and Shri Rynjan Singh, peon (Petitioner Witness 8) all stated that they had heard from other office staff that the respondent would often visit the complainant’s residence uninvited and make a proposal of marriage. Other witnesses namely Shri Shyam Dass, Section Officer DACS (retired) (Petitioner Witness 19), Shri Subhash Prasad, Upper Division Clerk (Petitioner Witness 18), Shri Ashok Gahlot, Personal Assistant (Petitioner Witness 17), Shri Jinen Singh, Upper Division Clerk (Petitioner Witness 11), Shri Ranjit Patoi, Shri Samir Nandi, Senior Financial Assistant (General) and Smt. Pema Narzary, Assistant Field Officer (Women) (Petitioner Witness 9) all supported these allegations and said that they had heard from the complainant sometime in 2009‑10 that the respondent used to visit her house at odd hours and also misbehave with her by making sexual advances and asking the complainant to leave her husband and marry him. Shri Chandan Sarkar, Senior Financial Assistant (Middle) (Petitioner Witness 6) stated that he had even heard a telephonic recording of the respondent making sexual remarks to the complainant. Shri P. K. Rawat, Upper Division Clerk (Petitioner Witness 5) stated that on many occasions he had seen the respondent sitting at the complainant’s house., Shri S. C. Katoch, Inspector General (Petitioner Witness 20) stated that the complainant had once telephoned him making a complaint against the respondent for detaining her beyond working hours. He further stated that he had then telephonically reprimanded the respondent after which the respondent assigned her no work. Shri Mast Ram Thakur, Senior Financial Assistant (Higher) (Petitioner Witness 3) and Shri Ranjit Patoi, Assistant (Petitioner Witness 7) also corroborated the aforesaid and stated that the respondent withdrew all work from the complainant after she made a complaint against him., The aforesaid would indicate that this is not a case of no evidence. Some evidence has come on record to substantiate the allegations of sexual harassment levelled by the complainant. What is most important to note at this stage is that the High Court has not gone into the sufficiency of evidence as it was aware that the law does not permit it to go into the issue of sufficiency of evidence for the purpose of holding a public servant guilty of the alleged misconduct. In such circumstances the High Court concentrated only on technical pleas raised by the respondent. It is only on the issue of point 7(a) that the High Court seems to have taken the view that the findings in that regard are based on conjecture and surmise., The High Court took the view that in respect of the allegations contained in point 7(a) which relates to the respondent making unsolicited phone calls to the complainant, although no evidence of the call recordings had been produced to substantiate the same, the Central Complaints Committee accepted the allegations as true, and therefore its findings could be said to be based on conjecture and surmise., The aforesaid in our opinion is not correct. The allegation in point 7(a) was rightly accepted by the Central Complaints Committee keeping in mind the background of the case. The Central Complaints Committee duly noted that the non‑availability of the call records was owed to the fact that the inquiry into the complainant’s grievances was undertaken after a lapse of significant time. Moreover, the said finding is fortified by the oral evidence of one of the witnesses who deposed that he was aware of the respondent making calls to the complainant. The relevant portion is reproduced below: Shri Samir Nandi has also stated that he knew that Shri Dilip Paul was calling Smt. X on her mobile. The Complaints Committee made every effort to substantiate the charge that Shri Dilip Paul often telephoned Smt. X, and that too at odd hours, but since call records for Shri Dilip Paul’s mobile phone were not available and Smt. X had a prepaid SIM card, it failed to do so. The Complaints Committee also notes that the unavailability of corroboration from call records cannot be laid at Smt. X’s door because, had the enquiry into her complaint been timely and speedy, these records would have been available as on date., Before we close this judgment, we must deal with one submission very vociferously canvassed on behalf of the respondent as regards the multiple inquiries conducted by the appellant. It was submitted on behalf of the respondent that the normal rule is that there can be only one inquiry. It was also submitted that once the on‑spot/preliminary inquiry revealed nothing incriminating against the delinquent, no further committee could have been constituted to inquire into the allegations once again., It was further submitted that even the Frontier Local Complaints Committee came to the conclusion that the charges were not held to be proved., In such circumstances, according to the learned counsel, the Central Complaints Committee could not have been constituted to probe further into the allegations. In this regard, reliance was placed on the decision of this Supreme Court in the case of Vijay Shankar Pandey v. Union of India reported in (2014) 10 SCC 101. In the aforesaid context, we may only say that the point was raised even before the High Court and the same was negatived holding as under: The report dated 13.12.2011 was submitted pursuant to conducting of an on‑the‑spot enquiry. An on‑the‑spot enquiry, by its very nature, is summary in nature. Such enquiry cannot be equated with a disciplinary enquiry. It will be relevant to note that before the report of the on‑the‑spot enquiry was submitted, the competent authority had constituted the Frontier Local Complaints Committee, which had also commenced its proceedings. In that context, even if in such an on‑the‑spot enquiry no allegation was found to have been established, the same would not have any material bearing in the facts of the instant case. It is not in dispute that the petitioner was posted at the frontier and, accordingly, in terms of Standing Order No. 1/06, the Frontier Local Complaints Committee was constituted to enquire into the allegation of sexual harassment. Though the Frontier Local Complaints Committee had submitted its report on 17.01.2012, the same was cancelled by memorandum dated 10.12.2012 on the ground that the Chairperson of the Frontier Local Complaints Committee was not an officer who was senior to the petitioner against whom the complaint was made., We are unable to subscribe to the submission of the learned counsel for the petitioner that the report of the Frontier Local Complaints Committee could not have been cancelled and the report was required to be acted upon as the Chairperson of the Frontier Local Complaints Committee being from a different stream, the question of comparison of seniority did not arise. It is not the contention of the petitioner that the Chairperson was, indeed, higher in rank than the petitioner. Therefore, the significance of appropriate constitution of the Complaints Committee, in terms of the norms laid down, cannot be lost sight of. True, the authorities themselves had constituted the Complaints Committee, but the fact by itself cannot detract the competent authority from cancelling the proceeding or the report of an improperly constituted committee. It was in this background the Central Complaints Committee had come into the picture. Though earlier the Frontier Local Complaints Committee had conducted enquiry, we find that the Central Complaints Committee can also enquire into any matter of sexual abuse in the organization which necessarily includes the frontier also and, therefore, it cannot be said that the Central Complaints Committee could not have exercised authority in the instant case. The decision in K. D. Pandey, wherein it was held that when specific findings have been given in respect of charges by the inquiry officer, the matter could not have been remitted to the inquiring authority for further inquiry as it would have resulted in a second inquiry and not a further inquiry on the same set of charges and the materials on record, will not be applicable in the facts and circumstances of the case. In K. R. Deb, the Supreme Court observed that though it may be possible in certain circumstances for the disciplinary authority to record further evidence because of some serious defects that had crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, no power is vested in the disciplinary authority to completely set aside a previous inquiry on the ground that the report does not appeal to the disciplinary authority. It was also observed that the disciplinary authority in terms of the rules had enough power to reconsider the evidence and come to its own conclusion. In Vijay Shankar Pandey, the Supreme Court followed K. R. Deb and reiterated the principle laid down therein. The said decisions are also not applicable to the facts of the present case. We also find no merit in the contention urged on behalf of the petitioner that complaint dated 30.08.2011, having not been submitted to the Complaints Committee, could not have been acted upon. Materials on record do not indicate that at the time of submission of the complaint dated 30.08.2011 there was any specific Complaints Committee in place and, on the contrary, it appears that only after the complaint was received by the authority, the Frontier Local Complaints Committee was constituted to go into the complaint. Otherwise, the Standing Order No. 1/2006 itself visualizes submission of complaint directly to the Frontier IG/IF under certain circumstances., We are in complete agreement with the aforesaid findings recorded by the High Court on the issue of multiple inquiries., For all the foregoing reasons, we have reached the conclusion that the appeal deserves to be allowed. The High Court committed an egregious error in passing the impugned judgment and order. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and order passed by the High Court dated 15.05.2019 is hereby set aside. The order of penalty imposed by the Disciplinary Authority is hereby restored. However, we clarify that the appellant shall not effect any recovery of the amount already paid so far to the respondent. Pending applications, if any, shall stand disposed of. (Dr. Dhananjaya Y. Chandrachud)
id_1241	0	Through: Mr. Raghav Awasthi, Mr. Mukesh Sharma and Mr. Kunal Tiwari, Advocates for plaintiffs No.1 and 2; Mr. Percival Billimoria, Senior Advocate with Mr. Mukesh Sharma, Mr. Archit Singh and Ms. Rachita Sood, Advocates for plaintiff No.3 versus Through: Mr. Naman Joshi, Mr. Guneet Sidhu, Mr. Yuvraj Francis and Mr. Zaheb Hussain, Advocates for defendants No.1, 2 and 6; Mr. Soutik Banerjee, Mr. Harsh Jain, Ms. Devika Tulsiani and Ms. Mannat Tipnis, Advocates for defendant No.3; Mr. Sanjay Kumar, Mr. Abishek K. Singh and Mr. Saurabh Kumar, Advocates for defendant No.5., Interim Application No.11712/2022 (for virtual hearing) – For the reasons stated in the application, arguing counsel for the plaintiffs No.1 and 2 is permitted to submit his case through virtual hearing. The application is disposed of., Interim Application No.11711/2022 (Exemption from filing certified copy, left margin copy and typed copies) – Subject to the plaintiffs filing the original or typed copies of any documents on which the plaintiff may seek to place reliance within four weeks from today, exemption is granted for the present. The application is disposed of., The present applications have been filed on behalf of the plaintiffs under Order VII Rule 14 of the Code of Civil Procedure, 1908 seeking to place on record additional documents and under Order VI Rule 17 of the Code of Civil Procedure for amendment of plaint., Counsel for defendant No.2 opposes the present applications on the ground that if the applications are allowed, the objections taken by defendant No.2 with regard to concealment of facts by the plaintiff in the original plaint shall lose its relevance. I see no merit in the aforesaid objections, as the defendants would be free to take the aforesaid objections in their Written Statements as well as in the reply to the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure., Since summons are yet to be issued in the suit, I see no reason for not allowing both the applications. Accordingly, additional documents as well as the amended plaint are taken on record. The applications are disposed of., Let the plaint be registered as a suit. Issue summons in the suit., Summons are accepted on behalf of the defendants No.1, 2, 3, 5 and 6. Summons be issued to defendant No.4 through all modes. The summons shall state that the written statement(s) shall be filed within thirty days from the receipt of summons. Along with the written statement(s), the defendants shall also file an affidavit of admission or denial of the documents of the plaintiffs., Liberty is given to the plaintiffs to file replication(s) to the written statement(s), if any, within fifteen days from the receipt of the written statement(s). Along with the replication(s) filed by the plaintiffs, an affidavit of admission or denial of the documents of the defendants shall be filed by the plaintiffs., List before the Joint Registrar on 3 November 2022 for completion of service and pleadings., The present suit has been filed on behalf of the plaintiffs seeking relief of declaration and permanent injunction, inter alia, in respect of a tweet dated 1 May 2022 (pages 21‑24 of the plaintiff's documents) by defendant No.3, and an article dated 8 May 2022 (pages 25‑29 of the plaintiff's documents) by defendant No.2, along with damages., Plaintiff No.2, who is the director of the plaintiff No.1 company, runs, manages and operates several social media accounts including YouTube, Instagram and Twitter, and has over 14 million subscribers or followers across these platforms. The plaintiffs frequently upload posts and videos on Twitter, Instagram, Reddit and YouTube and have various sponsorships and collaborations with eminent companies, which constitute the means of livelihood of plaintiff No.2., Plaintiff No.2 posted a tweet on 1 May 2022 which is reproduced below: \Hinduism is a science based way of life. On 3 Dec 1984, two families remained unaffected from Bhopal gas leak. They performed regular ( ), which is a natural antidote to pollution.\, While retweeting the original tweet of plaintiff No.2 dated 1 May 2022, defendant No.3 tweeted as follows: \Ye bewakoof hain New India ke influenza. They frequently peddle propaganda but the bright bulbs also display their idiocy with certitude. Of course, brands like @theagecoffee or @mamaearthindia, and even @GoogleIndia or @DellIN, are happy to indulge with these dodos.\, In the article dated 8 May 2022 titled \Shouldn't brands stop supporting sordid influencers?\, defendant No.2, based on videos posted by the plaintiffs, made allegations of misogyny, child abuse and abuse of their pet dog. The link to the article dated 8 May 2022 was shared by defendant No.2 on her Twitter handle and was retweeted by defendant No.3. The plaintiffs claim that the posting of the aforesaid tweet and article by the defendants has caused immense damage to their reputation with sponsors, resulting in professional loss. In this regard the plaintiffs have placed on record a letter from one of their sponsors., Counsel for defendants No.1, 2 and 6 submits that an earlier suit was filed on behalf of plaintiffs No.2 and 3 being Civil Suit No.1346/2022 before the Civil Judge, Tis Hazari Courts, which was dismissed by the Civil Judge and the application under Order XXXIX Rule 1 and 2 of the Code of Civil Procedure was rejected. Relevant observations from the order dated 6 June 2022 passed by the Civil Judge are set out below., At the outset it is to be observed that plaintiffs ought to have sought the relief of declaration from the court in order to get the said articles declared defamatory in nature. The plaintiffs, in the entire plaint, have not mentioned the portions of the said articles which are allegedly defamatory, which are required to be mentioned as per the judgment in Harvest Securities Pvt. Ltd. & Anr. Vs. B P Singapore Pvt. Ltd. & Anr. The plaintiffs have merely stated that the said articles are defamatory. It is not in dispute that the fundamental right curtailed in Article 19 of the Constitution of India is not unrestricted. However, the plaintiffs shall prove before the court that the said articles are defamatory in nature and only then Article 19(2) comes into picture. Moreover, it is difficult to segregate the private life of public figures from their public life., In view of the above discussion, the application under Order 39 Rule 1 and 2 of the Code of Civil Procedure stands dismissed. The court is of the opinion that the plaint does not disclose a cause of action as the plaintiffs have not sought the relief of declaration and the relief of mandatory and permanent injunction is dependent upon adjudication of whether the said articles are defamatory. The pleadings mandated by the Harvest Securities judgment have not been incorporated in the plaint. Therefore, the Delhi High Court is constrained to reject the plaint under Order VII Rule 11(a) of the Code of Civil Procedure., It is further submitted that defendant No.2, before publishing the article of 8 May 2022, had written an email on 5 May 2022 to plaintiff No.2 and 3 asking for their comments to be given by the next day. No comments were received from the plaintiffs., Counsel for defendants further submits that the article in question is not defamatory., Counsel appearing for defendant No.3 has submitted that the tweet of 8 May 2022 is in the nature of hyperbole and therefore no injunction may be granted in respect thereof. He further contends that where damages have been claimed in a suit for defamation, injunction cannot be granted. He relies upon the judgment of the Supreme Court in Naveen Jindal v. Zee Media Corporation Ltd. (2014) 209 Delhi Law Times 267 and the judgment of this Court in Kailash Gahlot v. Vijender Gupta and Ors. (2022) 290 Delhi Law Times 92, to contend that where plaintiffs have quantified damages on account of loss of reputation, interim injunction cannot be granted., Issue Notice. Notice is accepted on behalf of counsels for defendants No.1, 2, 3, 5 and 6. Notice be issued to defendant No.4 through all modes. Reply(ies) be filed within two weeks. Rejoinder(s) thereto, if any, be filed within ten days thereafter., Delhi High Court has heard the counsels for the parties. The Court has seen the videos posted by the plaintiffs, the links of which are given in the article dated 8 May 2022 written by defendant No.2 and which formed the basis of the said article. Piercing the ears of a girl child cannot be termed as child abuse. Allegations of child abuse are serious and cannot be made without due care and verification. They cannot be based on the opinions of the author. Undoubtedly, a person has a right to criticize the views expressed by an individual and such criticism would be covered under the right to free speech. However, vicious attacks cannot be made on the character of a person under the guise of journalistic freedom and free speech. In the Court's prima facie view, there is nothing in the aforesaid videos to substantiate allegations of child abuse., Similarly, defendant No.3 may or may not agree with the beliefs of plaintiff No.2 as put forth in the tweet dated 1 May 2022, but the use of terms such as dodo, bewakoof and idiocy, which are clearly defamatory in nature, on a public platform, cannot be permitted., Ordinarily an interim injunction order cannot be passed in a suit where there is a claim of damages, but it does not necessarily imply that a Court cannot grant a pre‑trial injunction or order removal of a published defamatory article pending trial. Reliance in this regard is placed upon the judgment of a coordinate bench of this Court in T.V. Today Network Limited v. COGNATE and Ors. (2021) 282 Delhi Law Times 246., At the first hearing of the suit on 18 July 2022, counsel for the plaintiff handed over a copy of the order dated 6 June 2022 passed in Civil Suit No.1346/2022 by the Civil Judge, Tis Hazari Courts, to the Delhi High Court, therefore there was no concealment. From the observations made in the said order, the plaint was rejected under Order VII Rule 11(a) of the Code of Civil Procedure as it did not disclose a cause of action. The grounds for rejection have been redressed by the plaintiffs while filing the present suit. Therefore, the plaintiffs are not precluded from filing a fresh plaint in respect of the same cause of action in terms of Order VII Rule 13 of the Code of Civil Procedure. The dismissal of the application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure also does not appear to be on merits, but on account of defects in the plaint., From the averments made in the plaint and the documents filed therewith, the Delhi High Court finds that the plaintiffs have made a prima facie case in their favour and that if no ad interim injunction is granted, irreparable harm and injury would continue to be caused to the plaintiffs. So long as the impugned articles and the impugned tweets continue to be in circulation and visible on social media, they are likely to cause damage to the reputation and career of the plaintiffs. The balance of convenience lies in favour of the plaintiffs., Consequently, an ad interim injunction is passed in favour of the plaintiffs and against the defendants in the following terms: (i) Defendants No.1, 2 and 6 are directed to take down the article dated 8 May 2022 (pages 25‑29 of the plaintiff's documents) from its online platform within one week of receipt of this order. The defendants No.1, 2 and 6 are further restrained from posting, circulating or publishing the aforesaid article or any other defamatory material in respect of the plaintiffs on any online or offline platforms. (ii) Defendant No.3 is directed to take down the tweet dated 1 May 2022 (pages 21‑24 of the plaintiff's documents) within one week of receipt of this order and is further directed not to post, circulate or publish any similar defamatory content against the plaintiffs on any social media or other online/offline platforms.
id_1242	0	Reportable Criminal Appeal Nos 3051-3052 of 2023 (Special Leave Petition (Criminal) Nos. 9220-21 of 2023) Pankaj Bansal Appellant versus Union of India and others Respondents. Criminal Appeal Nos 3053-3054 of 2023 (Special Leave Petition (Criminal) Nos. 9275-76 of 2023). Leave granted., The challenge in these appeals is to the orders dated 20 July 2023 and 26 July 2023 passed by a Division Bench of the Punjab and Haryana High Court dismissing Criminal Writ Petition No. 14536 of 2023 filed by Pankaj Bansal and Criminal Writ Petition No. 14539 of 2023 filed by his father Basant Bansal. By the order dated 20 July 2023, the Division Bench opined that, as the constitutional validity of Section 19 of the Prevention of Money Laundering Act, 2002 (for brevity, the Act) had been upheld by the Supreme Court of India, the challenge to the same by the writ petitioners could not be considered only because a review petition was pending before the Supreme Court of India. The prayer of the writ petitioners to that effect was accordingly rejected. By the later order dated 26 July 2023, the Division Bench rejected the prayer of the writ petitioners to quash or set aside their arrest orders along with their arrest memos and the consequential proceedings arising therefrom, including the orders dated 15 June 2023, 20 June 2023 and 26 June 2023 passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, whereby they were remanded to the custody of the Directorate of Enforcement and thereafter to judicial custody. The Division Bench further held that, keeping in view the gravity of the allegations against them, their prayer to be released from custody did not deserve acceptance and rejected the same. In consequence, the Division Bench dismissed both the writ petitions. Hence, these appeals by Pankaj Bansal and Basant Bansal., The genesis of these appeals is traceable to FIR No. 0006 dated 17 April 2023 registered by the Anti-Corruption Bureau, Panchkula, Haryana, under Sections 7, 8, 11 and 13 of the Prevention of Corruption Act, 1988, read with Section 120B of the Indian Penal Code for the offences of corruption, bribery and criminal conspiracy. The names of the accused in this FIR are: (i) Mr Sudhir Parmar (the then Special Judge, Central Bureau of Investigation and Directorate of Enforcement, Panchkula); (ii) Mr Ajay Parmar (nephew of Mr Sudhir Parmar and Deputy Manager (Legal) in M3M Group); (iii) Mr Roop Bansal (Promoter of M3M Group); and (iv) other unknown persons., Significantly, prior to this FIR, between 2018 and 2020, thirteen FIRs were registered by allottees of two residential projects of the IREO Group, alleging illegalities on the part of its management. On the strength of these FIRs, the Directorate of Enforcement recorded Enforcement Case Information Report No. GNZO/10/2021 dated 15 June 2021 (hereinafter, the first ECIR) in connection with the money laundering offences allegedly committed by the IREO Group and Lalit Goyal, its Vice-Chairman and Managing Director. Neither in the FIRs nor in the first ECIR were M3M Group or the appellants named as accused, and no allegations were levelled against them therein. On 14 January 2022, the Directorate of Enforcement filed Prosecution Complaint No. 01/2022, titled Assistant Director, Directorate of Enforcement versus Lalit Goyal and others, against seven named accused, under Section 200 of the Criminal Procedure Code read with Sections 44 and 45 of the Act. Notably, M3M Group and the appellants did not figure amongst those named accused. The number of FIRs had increased from thirteen to thirty, as per this complaint. This case was numbered as COMA/01/2022, titled Directorate of Enforcement versus Lalit Goyal and others, and was pending in the Court of Sudhir Parmar, Special Judge. At that stage, the Anti-Corruption Bureau, Panchkula, received information that Sudhir Parmar was showing favouritism to Lalit Goyal, the owner of IREO Group, and also to Roop Bansal and his brother Basant Bansal, the owners of M3M Group. This led to the registration of FIR No. 0006 dated 17 April 2023. On 12 May 2023, the Directorate of Enforcement issued summons to M3M India Private Limited, calling upon it to provide information and documents pertaining to transactions with certain companies. Thereafter, on 1 June 2023, the Directorate of Enforcement raided the properties of M3M Group and effected seizures of assets and bank accounts. Roop Bansal was arrested by the Directorate of Enforcement on 8 June 2023 apropos the first ECIR., Apprehending that action would be taken against them also in the context of the first ECIR, Pankaj Bansal and Basant Bansal secured interim protection from the Delhi High Court in Bail Application Nos. 2030 and 2031 of 2023. By separate orders dated 9 June 2023 passed therein, the Delhi High Court noted that Pankaj Bansal and Basant Bansal had not been named in the first ECIR and that the Directorate of Enforcement had not yet been able to implicate them in any of the scheduled offences under the Act. Further, the High Court noted that Pankaj Bansal had not even been summoned by the Directorate of Enforcement in that case. The High Court accordingly granted them interim protection by way of anticipatory bail, subject to conditions, till the next date of hearing, i.e., 5 July 2023. Special Leave Petition (Criminal) Nos. 7384 and 7396 of 2023 were filed by the Directorate of Enforcement assailing the orders dated 9 June 2023 before this Court and the same are stated to be pending., In the meanwhile, on the basis of FIR No. 0006 dated 17 April 2023, the Directorate of Enforcement recorded another Enforcement Case Information Report, viz., ECIR/GNZO/17/2023, on 13 June 2023 (hereinafter, the second ECIR) against: (i) Mr Sudhir Parmar; (ii) Mr Ajay Parmar; (iii) Mr Roop Bansal; and (iv) others who are named in the FIR/unknown persons. However, summons were issued by the Directorate of Enforcement to Pankaj Bansal and Basant Bansal on 13 June 2023 at 06:15 p.m. in relation to the first ECIR, requiring them to appear before the Directorate of Enforcement on 14 June 2023 at 11:00 a.m. Though the copy of the summons placed before this Court pertains to Pankaj Bansal alone, the email dated 13 June 2023 of the Assistant Director of the Directorate of Enforcement, bearing the time 06:15 p.m., was addressed to both Pankaj Bansal and Basant Bansal and required their compliance with the summons on 14 June 2023 at 11 a.m. While Pankaj Bansal and Basant Bansal were at the office of the Directorate of Enforcement at Rajokri, New Delhi, in compliance with these summons, Pankaj Bansal was served with fresh summons at 04:52 p.m. on 14 June 2023, requiring him to be present before another Investigating Officer at 05:00 p.m. on the same day. This summons was in connection with the second ECIR. There is lack of clarity as to when summons in relation to the second ECIR were served on Basant Bansal. According to the Directorate of Enforcement, he was served the summons on 13 June 2023 itself and refused to receive the same. However, it is an admitted fact that Basant Bansal was also present at the Directorate of Enforcement's office at Rajokri, New Delhi, on 14 June 2023 at 11:00 a.m. It is also not in dispute that, while he was there, Basant Bansal was arrested at 06:00 p.m. on 14 June 2023 and Pankaj Bansal was arrested at 10:30 p.m. on the same day. These arrests, made in connection with the second ECIR, were in exercise of power under Section 19(1) of the Act. The arrested persons were then taken to Panchkula, Haryana, and produced before the learned Vacation Judge/Additional Sessions Judge, Panchkula. There, they were served with the remand application filed by the Directorate of Enforcement. The learned Vacation Judge/Additional Sessions Judge, Panchkula, initially passed order dated 15 June 2023 holding that custodial interrogation of the arrested persons was required and granted their custody to the Directorate of Enforcement for five days with a direction to produce them before the Court on 20 June 2023. By the later orders dated 20 June 2023 and 26 June 2023, their remand to the custody of the Directorate of Enforcement was extended by five more days and thereafter, they were sent to judicial custody., Assailing the first remand order dated 15 June 2023, Pankaj Bansal and Basant Bansal approached the Delhi High Court, vide Writ Petition (Criminal) Nos. 1770 and 1771 of 2023. However, by order dated 16 June 2023, the Delhi High Court opined that the appropriate remedy for them would be to approach the Punjab and Haryana High Court and challenge the said order of remand. Holding so, the Delhi High Court dismissed their miscellaneous applications but ordered notice in the writ petitions. Aggrieved by the Delhi High Court's order, Pankaj Bansal and Basant Bansal filed Special Leave Petition (Criminal) Nos. 7443 and 7444 of 2023 before this Court. The Special Leave Petitions were disposed of as withdrawn on 4 July 2023, reserving liberty to approach the Punjab and Haryana High Court against the remand orders. This Court further held that Writ Petition (Criminal) Nos. 1770 and 1771 of 2023 before the Delhi High Court were rendered infructuous. Thereupon, Pankaj Bansal and Basant Bansal filed the subject writ petitions before the Punjab and Haryana High Court which came to be dismissed, vide the impugned orders of the Division Bench., Though Basant Bansal is not shown as an accused along with his brother Roop Bansal in FIR No. 0006 dated 17 April 2023 on the file of the Anti-Corruption Bureau, Panchkula, his name finds mention in the body of the FIR as one of the owners of M3M Group to whom favouritism was shown by Sudhir Parmar, Special Judge. However, the name of Pankaj Bansal does not find mention even in the contents of the FIR. It was the specific case of the father and son in their writ petitions before the High Court that their arrest under the provisions of the Act was a wanton abuse of power and an abuse of process by the Directorate of Enforcement, apart from being blatantly illegal and unconstitutional. They also asserted that the Directorate of Enforcement acted in violation of the safeguards provided in Section 19 of the Act. In this milieu, they made the following prayers: In view of the facts and circumstances mentioned above, it is, therefore, respectfully prayed that this Honorable Court may kindly be pleased to issue appropriate writs, orders and/or directions to: (a) Read down and/or read into as well as expound, deliberate upon and delineate the ambit, sweep and scope of Section 19(1) of the Prevention of Money Laundering Act in consonance with the principles, inter alia, enunciated by the Supreme Court of India in Vijay Madanlal Choudhary versus Union of India & Others, 2022 SCC OnLine SC 929 and hold that: (i) The expression “material in possession” occurring therein must be confined, circumscribed and limited to legally admissible evidence of sterling quality and unimpeachable character on the basis whereof reasons to believe could be recorded in writing that the arrestee is guilty of the offence under Section 4 of the Act; (ii) The word “guilt” occurring therein would qualify a higher yardstick than a mere suspicion and the learned Court at the stage of remand is required to apply its judicial mind to the grounds as well as necessity for arrest as, inter alia, held in Arnesh Kumar versus State of Bihar, (2014) 8 SCC 273 and as accorded imprimatur in Satender Kumar Antil versus Central Bureau of Investigation and another, 2022 SCC OnLine SC 825; (iii) The expression “communicate” occurring therein would definitely entail physical communication and furnishing the grounds of arrest to the arrestee in the context of the obligation for reason for such belief to be recorded in writing read with Rules 2(1)(g) and 2(1)(h) of the Prevention of Money Laundering Act Rules 2005 (Arrest Rules) which postulates the meaning of the word “order” to include the grounds of such arrest., It is, therefore, clear that Pankaj Bansal and Basant Bansal did not assail the constitutional validity of Section 19 of the Act but sought reading down and/or reading into the provisions thereof. Further, they asserted that the remand orders were passed in a patently routine and mechanical manner by the learned Vacation Judge/Additional Sessions Judge, Panchkula, without satisfying himself about due compliance with the mandate of Section 19 of the Act, and more particularly, whether the threshold requirements of the provision were duly satisfied. In consequence, they prayed for a direction to quash the remand orders as well as the underlying arrest orders and arrest memos., Though the appellants did not challenge the constitutional validity of Section 19 of the Act in their writ petitions and had only sought reading down and/or reading into the provisions thereof in the light of the judgment of this Court in Vijay Madanlal Choudhary and others versus Union of India and others, the Division Bench of the Punjab and Haryana High Court failed to note this distinction and disallowed their prayer under the mistaken impression that they were challenging the constitutional validity of the provision. The finer connotations and nuances of the language used in Section 19 of the Act, to the extent left uncharted by this Court in Vijay Madanlal Choudhary (supra), were still open to interpretation and resolution and, therefore, the High Court would have been well within its right to undertake that exercise. Be that as it may., Saket Singh, Indian Revenue Service, Deputy Director, Directorate of Enforcement, Gurugram Zonal Office, Rajokri, New Delhi, deposed to the replies filed by the Directorate of Enforcement before this Court. Therein, he acknowledged that the second ECIR was recorded on 13 June 2023 based on FIR No. 0006 dated 17 April 2023. He stated that the name of Pankaj Bansal and the owners of M3M Group specifically found mention in the said FIR. However, perusal of the FIR reflects that the name of Pankaj Bansal is not mentioned. Reference to the owners of M3M Group was in the context of Roop Bansal and his brother Basant Bansal, and not in a generic sense, as is now sought to be made out so as to rope in Pankaj Bansal also. Saket Singh further stated that though M3M Group, Pankaj Bansal and Basant Bansal were not named in the connected FIRs of the first ECIR, investigation therein had shown that the promoters of M3M Group were also involved in money laundering. According to him, Basant Bansal refused to accept the summons issued on 13 June 2023 in relation to the second ECIR and did not give any information relating thereto. Manual summons dated 14 June 2023 were stated to have been issued to Pankaj Bansal on 14 June 2023 for his personal appearance and for recording of his statement before the Directorate of Enforcement's Investigating Officer on the same day. He alleged that Pankaj Bansal accepted the summons but remained evasive in providing relevant information to the Directorate of Enforcement. He justified the issuance of summons on an immediate basis, by claiming that it was a necessity as the promoters/key persons of M3M Group, including Pankaj Bansal and Basant Bansal, had been deliberately avoiding investigation in the first ECIR as well and were not complying with the previously issued summons on multiple occasions. He alleged that Pankaj Bansal failed to comply with the summons in respect of the first ECIR on multiple occasions, i.e., with the summons dated 04 June 2023, 06 June 2023 and 07 June 2023. Again, this statement is factually incorrect as these summonses were issued to Basant Bansal and not to Pankaj Bansal., Saket Singh then went on to state that when Pankaj Bansal came to the Directorate of Enforcement's office on 14 June 2023, the Investigating Officer of the second ECIR served a summons upon him and as the Investigating Officer had evidence to show that Pankaj Bansal was guilty of the offence of money laundering, he arrested him after following the due procedure prescribed under the Act and the rules framed thereunder. He asserted that the arrests were made in accordance with Section 19 of the Act and the information/details regarding the arrests of Pankaj Bansal and Basant Bansal were duly communicated to Mrs Abha Bansal and Ms Payal Kanodia over the telephone immediately after their arrests. He stated that the written grounds of arrest were first read out to Basant Bansal but he refused to sign the same. Subsequently, the written grounds of arrest were read over and explained in his language, viz., Hindi, to Basant Bansal in the presence of witnesses and the witnesses signed on the same as a token of correctness. Saket Singh again asserted that issuance of summons on immediate basis was a necessity as both of them had been deliberately avoiding investigation in the other case as well and were not complying with the previously issued summons on multiple occasions. This reiteration is incorrect as the first summons issued to Pankaj Bansal was on 13 June 2023 at 06:15 p.m. requiring him to appear at 11:00 a.m. on 14 June 2023 in connection with the first ECIR, which he duly complied with, and again, while he was in the Directorate of Enforcement's office at New Delhi, he was served with the summons in connection with the second ECIR at 04:52 p.m. requiring him to be present at 05:00 p.m., which he again complied with. According to Saket Singh, during the investigation, both of them were found to be actively involved in money laundering and deliberately attempted to withhold information, that was in their exclusive knowledge, which was crucial to establish their roles and to take the money laundering investigation to its logical end. He asserted that they adopted an attitude of non-cooperation during the investigation and the fact that they had bribed the Directorate of Enforcement Judge to take benefit in the existing proceedings showed that they were capable of influencing witnesses/authorities involved in the case. He alleged that they were capable of tampering with the evidence and hence, Pankaj Bansal was arrested on 14 June 2023 around 10:30 p.m. on the basis of incriminating evidence. The written grounds of arrest were stated to have been read by Pankaj Bansal in the presence of witnesses and, thereafter, Pankaj Bansal and the witnesses signed on the same., Though much was stated and argued by both sides on the merits of the matter in terms of the involvement of the appellants in the alleged offence of money laundering, we make it clear that we are not concerned with that issue at this point. The only issue for consideration presently is whether the arrest of the appellants under Section 19 of the Act was valid and lawful and whether the impugned orders of remand passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, measure up. In that context, we may also make it clear that the mere passing of an order of remand would not be sufficient in itself to validate the appellants' arrests, if such arrests are not in conformity with the requirements of Section 19 of the Act. Though judgments were cited by the Directorate of Enforcement which held to the effect that legality of the arrest would be rendered immaterial once the competent Court passes a remand order, those cases primarily dealt with the issue of a writ of habeas corpus being sought after an order of remand was passed by the jurisdictional Court and that ratio has no role to play here. The understanding of the Directorate of Enforcement and its misplaced reliance upon that case law begs the question as to whether there was proper compliance with Section 19(1) of the Act and as to whether the learned Vacation Judge/Additional Sessions Judge, Panchkula, correctly considered that issue while passing the remand orders. Therefore, as the very validity of the remand orders is under challenge on that ground, the issue as to whether the arrest of the appellants was lawful in its inception may also be open for consideration., At this stage, it would be apposite to consider the case law that does have relevance to these appeals and the issues under consideration. In Vijay Madanlal Choudhary (supra), a three‑Judge Bench of this Court observed that Section 65 of the Act predicates that the provisions of the Criminal Procedure Code, 1973, shall apply insofar as they are not inconsistent with the provisions of the Act in respect of arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings thereunder. It was noted that Section 19 of the Act prescribes the manner in which the arrest of a person involved in money laundering can be effected. It was observed that such power was vested in high‑ranking officials and that, apart, Section 19 of the Act provided in‑built safeguards to be adhered to by the authorized officers, such as recording reasons for the belief regarding involvement of the person in the offence of money laundering and, further, such reasons have to be recorded in writing and while effecting arrest, the grounds of arrest are to be informed to that person. It was noted that the authorized officer has to forward a copy of the order, along with the material in his possession, to the Adjudicating Authority and this safeguard is to ensure fairness, objectivity and accountability of the authorized officer in forming an opinion, as recorded in writing, regarding the necessity to arrest the person involved in the offence of money laundering. The Bench also noted that it is the obligation of the authorized officer to produce the person so arrested before the Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, within twenty‑four hours and such production is to comply with the requirement of Section 167 of the Criminal Procedure Code. It was pointed out that there is nothing in Section 19 of the Act which is contrary to the requirement of production under Section 167 of the Criminal Procedure Code and being an express statutory requirement under Section 19(3) of the Act, it has to be complied by the authorized officer. It was concluded that the safeguards provided in the Act and the preconditions to be fulfilled by the authorized officer before effecting arrest, as contained in Section 19 of the Act, are equally stringent and of higher standard when compared to the Customs Act, 1962, and such safeguards ensure that the authorized officers do not act arbitrarily, by making them accountable for their judgment about the necessity to arrest any person involved in the commission of the offence of money laundering, even before filing of the complaint before the Special Court. It was on this basis that the Bench upheld the validity of Section 19 of the Act. The Bench further held that once the person is informed of the grounds of arrest, that would be sufficient compliance with the mandate of Article 22(1) of the Constitution and it is not necessary that a copy of the ECIR be supplied in every case to the person concerned, as such a condition is not mandatory and it is enough if the Directorate of Enforcement discloses the grounds of arrest to the person concerned at the time of arrest. It was pointed out that when the arrested person is produced before the Court, it would be open to the Court to look into the relevant records presented by the authorized representative of the Directorate of Enforcement for answering the issue of need for continued detention in connection with the offence of money laundering. It was, in fact, such stringent safeguards provided under Section 19 of the Act that prompted this Court to uphold the twin conditions contained in Section 45 thereof, making it difficult to secure bail., This Court had occasion to again consider the provisions of the Act in V. Senthil Balaji versus The State represented by Deputy Director and others, and more particularly, Section 19 thereof. It was noted that the authorized officer is at liberty to arrest the person concerned once he finds a reason to believe that he is guilty of an offence punishable under the Act, but he must also perform the mandatory duty of recording reasons. It was pointed out that this exercise has to be followed by the information of the grounds of his arrest being served on the arrestee. It was affirmed that it is the bounden duty of the authorized officer to record the reasons for his belief that a person is guilty and needs to be arrested and it was observed that this safeguard is meant to facilitate an element of fairness and accountability. Dealing with the interplay between Section 19 of the Act and Section 167 of the Criminal Procedure Code, this Court observed that the Magistrate is expected to do a balancing act as the investigation is to be completed within twenty‑four hours as a matter of rule and, therefore, it is for the investigating agency to satisfy the Magistrate with adequate material on the need for custody of the accused. It was pointed out that this important factor is to be kept in mind by the Magistrate while passing the judicial order. This Court reiterated that Section 19 of the Act, supplemented by Section 167 of the Criminal Procedure Code, provided adequate safeguards to an arrested person as the Magistrate has a distinct role to play when a remand is made of an accused person to an authority under the Act. It was held that the Magistrate is under a bounden duty to see to it that Section 19 of the Act is duly complied with and any failure would entitle the arrestee to get released. It was pointed out that Section 167 of the Criminal Procedure Code is meant to give effect to Section 19 of the Act, and, therefore, it is for the Magistrate to satisfy himself of its due compliance by perusing the order passed by the authority under Section 19(1) of the Act and only upon such satisfaction, the Magistrate can consider the request for custody in favour of an authority. To put it otherwise, per this Court, the Magistrate is the appropriate authority who has to be satisfied about the compliance with safeguards as mandated under Section 19 of the Act. In conclusion, this Court summed up that any non‑compliance with the mandate of Section 19 of the Act would enure to the benefit of the person arrested and the Court would have power to initiate action under Section 62 of the Act for such non‑compliance. Significantly, in this case, the grounds of arrest were furnished in writing to the arrested person by the authorized officer., In terms of Section 19(3) of the Act and the law laid down in the above decisions, Section 167 of the Criminal Procedure Code would necessarily have to be complied with once an arrest is made under Section 19 of the Act. The Court seized of the exercise under Section 167 of the Criminal Procedure Code of remanding the person arrested by the Directorate of Enforcement under Section 19(1) of the Act has a duty to verify and ensure that the conditions in Section 19 are duly satisfied and that the arrest is valid and lawful. In the event the Court fails to discharge this duty in right earnest and with the proper perspective, as pointed out hereinbefore, the order of remand would have to fail on that ground and the same cannot, by any stretch of imagination, validate an unlawful arrest made under Section 19 of the Act., In the matter of Madhu Limaye and others, a three‑Judge Bench decision of this Court wherein it was observed that it would be necessary for the State to establish that, at the stage of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant matters and if the arrest suffered on the ground of violation of Article 22(1) of the Constitution, the order of remand would not cure the constitutional infirmities attaching to such arrest., Viewed in this context, the remand order dated 15 June 2023 passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, reflects total failure on his part in discharging his duty as per the expected standard. The learned Judge did not even record a finding that he perused the grounds of arrest to ascertain whether the Directorate of Enforcement had recorded reasons to believe that the appellants were guilty of an offence under the Act and that there was proper compliance with the mandate of Section 19 of the Act. He merely stated that, keeping in view the seriousness of the offences and the stage of the investigation, he was convinced that custodial interrogation of the accused persons was required in the present case and remanded them to the custody of the Directorate of Enforcement. The sentence “It is further that all the necessary mandates of law have been complied with” follows “It is the case of the prosecution” and appears to be a continuation thereof, and is not a recording by the learned Judge of his own satisfaction to that effect., In consequence, it would be necessary for us to examine how the appellants were arrested and verify whether it was in keeping with the safeguards in Section 19 of the Act. In this context, the sequence of events makes for an interesting reading. The first ECIR was registered by the Directorate of Enforcement on 15 June 2021 and Roop Bansal was arrested in connection therewith on 8 June 2023. Neither of the appellants was shown as an accused therein. However, it is the case of the Directorate of Enforcement that investigation in relation to the first ECIR is still ongoing. In any event, after the arrest of Roop Bansal, both the appellants secured interim protection by way of anticipatory bail on 9 June 2023, albeit till the next day of hearing, viz., 5 July 2023, from the Delhi High Court. However, both the appellants were summoned on 14 June 2023 for interrogation in connection with the first ECIR, in which they had interim protection. Summons in that regard were served upon them on 13 June 2023 at 06:15 p.m. Significantly, the second ECIR was recorded only on that day, i.e., on 13 June 2023, in connection with FIR No. 0006 which was registered on 17 April 2023. Therein also, neither of the appellants was shown as an accused and it was only Roop Bansal who stood named as an accused. In compliance with the summons received by them vis‑à‑vis the first ECIR, both the appellants presented themselves at the Directorate of Enforcement's office at Rajokri, New Delhi, at 11:00 a.m. on 14 June 2023.
id_1242	1	While they were there, Pankaj Bansal was served with summons at 04.52 pm, requiring him to appear before another Investigating Officer at 05.00 pm in relation to the second Enforcement Case Information Report. As already noted, there is ambiguity as to when Basant Bansal was served with such summons. It is the case of the Enforcement Directorate that he refused to receive the summons in relation to the second Enforcement Case Information Report and he was arrested at 06.00 pm on 14 June 2023. Pankaj Bansal received the summons and appeared but, as he did not divulge relevant information, the Investigating Officer arrested him at 10.30 pm on 14 June 2023., This chronology of events reflects poorly on the Enforcement Directorate's style of functioning. Being a premier investigating agency charged with the onerous responsibility of curbing the debilitating economic offence of money laundering in our country, every action of the Enforcement Directorate in the course of such exercise is expected to be transparent, above board and conforming to pristine standards of fair play. The Enforcement Directorate, mantled with far‑reaching powers under the Prevention of Money Laundering Act, 2002, is not expected to be vindictive in its conduct and must be seen to be acting with utmost probity and the highest degree of dispassion and fairness. In the case on hand, the facts demonstrate that the Enforcement Directorate failed to discharge its functions and exercise its powers as per these parameters., Although the appellants did not allege colourable exercise of power or malafide intent on the part of the Enforcement Directorate officials, they asserted in categorical terms that their arrests were a wanton abuse of power, authority and process by the Enforcement Directorate, which would tantamount to the same thing. On that subject, we may refer to the observations of the Supreme Court of India in State of Punjab vs. Gurdial Singh: The question, then, is what is malafide in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power, sometimes called colourable exercise or fraud on power, often overlaps motives, passions and satisfactions and is the attainment of ends beyond the sanctioned purposes of power by simulation or pretension of gaining a legitimate goal., If the use of the power is for the fulfilment of a legitimate object, the actuation by malice is not illegitimate. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by extraneous considerations, good or bad, but irrelevant to the entrustment. When the custodian of power is influenced in its exercise by considerations outside those for promotion of which the power is vested, the court calls it a colourable exercise and is undeceived by illusion. In a broad sense, Benjamin Disraeli was not off the mark even in law when he stated: I repeat … that all power is a trust that we are accountable for its exercise, that, from the people, and for the people, all springs, and all must exist. Fraud on power voids the order if it is not exercised bona fide for the end designed. Fraud in this context is not equal to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malice‑laden or even benign. If the purpose is corrupt the resultant act is bad. If considerations foreign to the scope of the power or extraneous to the statute enter the verdict or impel the action, malafide or fraud on power vitiates the acquisition or other official act., A few years later, in Collector (District Magistrate), Allahabad and another vs. Raja Ram Jaiswal, the Supreme Court of India held: Where power is conferred to achieve a purpose, it has been repeatedly reiterated that the power must be exercised reasonably and in good faith to effectuate the purpose. In this context, good faith means for legitimate reasons. Where power is exercised for extraneous or irrelevant considerations, it is unquestionably a colourable exercise of power or fraud on power and the exercise of power is vitiated. Again, in Ravi Yashwant Bhoir vs. Collector, it was held: Malafide exercise of power does not imply any moral turpitude. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, where intent is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law., The way in which the Enforcement Directorate recorded the second Enforcement Case Information Report immediately after the appellants secured anticipatory bail in relation to the first Enforcement Case Information Report, though the foundational First Information Report dated back to 17 April 2023, and then went about summoning them on one pretext and arresting them on another within a short span of 24 hours, manifests complete and utter lack of bonafides. Significantly, when the appellants were before the Delhi High Court seeking anticipatory bail in connection with the first Enforcement Case Information Report, the Enforcement Directorate did not even bring it to the notice of the High Court that there was another First Information Report in relation to which there was an ongoing investigation, wherein the appellants stood implicated. The second Enforcement Case Information Report was recorded four days after the grant of bail and it is not possible that the Enforcement Directorate would have been unaware of the existence of First Information Report No. 0006 dated 17 April 2023 at that time., Surprisingly, in its written submissions, the Enforcement Directorate stated that it started its inquiries in respect of this First Information Report in May 2023, but the replies filed by the Enforcement Directorate do not state so. This suppression before the Delhi High Court demonstrates complete lack of probity on the part of the Enforcement Directorate. Its prompt retaliatory move, upon grant of interim protection to the appellants, by recording the second Enforcement Case Information Report and acting upon it, all within the span of a day, to arrest the appellants, speaks for itself., Further, when the second Enforcement Case Information Report was recorded on 13 June 2023 after preliminary investigations, as stated in the Enforcement Directorate's replies, it is not clear when the Enforcement Directorate's Investigating Officer had the time to properly inquire into the matter so as to form a clear opinion about the appellants' involvement in an offence under the Prevention of Money Laundering Act, 2002, warranting their arrest within 24 hours. This is a sine qua non in terms of Section 19(1) of the Prevention of Money Laundering Act, 2002. Authorities must act within the four corners of the statute, as pointed out by the Supreme Court of India in Devinder Singh v. State of Punjab, and a statutory authority is bound by the procedure laid down in the statute., The failure of the appellants to respond to the questions put to them by the Enforcement Directorate would not be sufficient in itself for the Investigating Officer to opine that they were liable to be arrested under Section 19, as that provision specifically requires him to find reason to believe that they were guilty of an offence under the Prevention of Money Laundering Act, 2002. Mere non‑cooperation of a witness in response to the summons issued under Section 50 of the Act would not be enough to render him or her liable to be arrested under Section 19. As per its replies, the Enforcement Directorate claims that Pankaj Bansal was evasive in providing relevant information, but it does not explain why his replies were categorized as evasive, and the record is not placed before us for verification. It is not open to the Enforcement Directorate to expect an admission of guilt from the person summoned for interrogation and to assert that anything short of such admission would be an evasive reply. In Santosh S/o Dwarkadas Fafat vs. State of Maharashtra, the Supreme Court of India noted that custodial interrogation is not for the purpose of confession, as the right against self‑incrimination is provided by Article 20(3) of the Constitution. It was held that merely because an accused did not confess, it cannot be said that he was not cooperating with the investigation. Similarly, the absence of either or both appellants during the search operations, when their presence was not insisted upon, cannot be held against them., The more important issue presently is how the Enforcement Directorate is required to inform the arrested person of the grounds for his or her arrest. Prayer (iii) in the writ petitions filed by the appellants pertained to this. Section 19 does not specify in clear terms how the arrested person is to be informed of the grounds of arrest, and this aspect has not been dealt with in Vijay Madanlal Choudhary. Similarly, in V. Senthil Balaji, the Supreme Court of India merely noted that the information of the grounds of arrest should be served on the arrestee, but did not elaborate on that issue. Pertinent to note, the grounds of arrest were furnished in writing to the arrested person in that case. No consistent and uniform practice seems to be followed by the Enforcement Directorate; written copies of the grounds of arrest are furnished to arrested persons in certain parts of the country, while in other areas the practice is not followed and the grounds are either read out to them or allowed to be read by them., In this context, reliance is placed by the Enforcement Directorate upon the decision of a Division Bench of the Delhi High Court in Moin Akhtar Qureshi vs. Union of India, wherein it was observed that Section 19 of the Prevention of Money Laundering Act, 2002 uses the expression ‘informed of the grounds of such arrest’ and does not use the expression ‘communicate the grounds of such arrest’; therefore, the obligation cast upon the authorized officer under Section 19(1) is only to inform the arrestee of the grounds of arrest and the provision does not oblige the authority to serve the grounds for such arrest on the arrestee. Reliance is also placed by the Enforcement Directorate on the judgment of a Division Bench of the Bombay High Court in Chhagan Chandrakant Bhujbal vs. Union of India, which held that the grounds of arrest are to be informed to the person arrested and that would mean that they should be communicated at the earliest, but there is no statutory requirement of the grounds of arrest being communicated in writing., No doubt, in Vijay Madanlal Choudhary, the Supreme Court of India held that non‑supply of the Enforcement Case Information Report in a given case cannot be found fault with, as the report may contain details of material in the Enforcement Directorate’s possession and revealing the same may have a deleterious impact on the final outcome of the investigation or inquiry. Having held so, the Court affirmed that so long as the person is informed of the grounds of his or her arrest, that would be sufficient compliance with the mandate of Article 22(1) of the Constitution., Article 22(1) of the Constitution provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This fundamental right requires that the mode of conveying information of the grounds of arrest be meaningful so as to serve the intended purpose. Section 45 of the Prevention of Money Laundering Act, 2002 enables the person arrested under Section 19 thereof to seek release on bail, but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a person would not be entitled to grant of bail. The twin conditions are that the Court must be satisfied, after giving an opportunity to the public prosecutor to oppose the application, that there are reasonable grounds to believe that the arrested person is not guilty of the offence, and that he is not likely to commit any offence while on bail. To meet this requirement, it is essential for the arrested person to be aware of the grounds on which the authorized officer arrested him or her under Section 19 and the basis for the officer’s reason to believe that he or she is guilty of an offence punishable under the Prevention of Money Laundering Act, 2002., The language of Section 19 of the Prevention of Money Laundering Act, 2002 puts it beyond doubt that the authorized officer has to record in writing the reasons for forming the belief that the person proposed to be arrested is guilty of an offence punishable under the Act. Section 19(2) requires the authorized officer to forward a copy of the arrest order along with the material in his possession, referred to in Section 19(1), to the Adjudicating Authority in a sealed envelope. Though it is not necessary for the arrested person to be supplied with all the material forwarded to the Adjudicating Authority, he or she has a constitutional and statutory right to be informed of the grounds of arrest, which are compulsorily recorded in writing by the authorized officer., Rule 6 of the Prevention of Money Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person along with the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005, titled ‘Forms of records’, provides that the arresting officer, while exercising powers under Section 19(1) of the Act, shall sign the Arrest Order in Form III appended to those Rules. Form III reads as follows: ‘Whereas, I, Director/Deputy Director/Assistant Director/Officer authorized in this behalf by the Central Government, have reason to believe that [name of the person arrested], resident of [address], has been guilty of an offence punishable under the provisions of the Prevention of Money‑laundering Act, 2002 (15 of 2003); Now, therefore, in exercise of the powers conferred on me under sub‑section (1) of Section 19 of the Prevention of Money‑laundering Act, 2002 (15 of 2003), I hereby arrest the said [name] at [time] on [date] and he has been informed of the grounds for such arrest.’ This format would be followed all over the country by authorized officers who exercise the power of arrest under Section 19(1), but in certain parts of the country the authorized officer would inform the arrested person of the grounds of arrest by furnishing the same in writing, while in other parts the officer would only read out or permit reading of the contents., This dual and disparate procedure to convey the grounds of arrest to the arrested person cannot be countenanced on the strength of the prescribed format. There is no valid reason why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception. Firstly, if the grounds are orally read out and the fact is disputed, it may reduce to the word of the arrested person against the word of the authorized officer as to whether due compliance occurred. In the present case, the Enforcement Directorate claims that witnesses were present and certified that the grounds of arrest were read out and explained to Basant Bansal in Hindi, but he did not sign the document. Non‑compliance in this regard would entail release of the arrested person straightaway, as held in V. Senthil Balaji. Such a precarious situation is easily avoided by furnishing the written grounds of arrest, as recorded by the authorized officer, to the arrested person under due acknowledgment, instead of leaving it to the debatable ipse dixit of the officer., The second reason for adopting the written format is the constitutional objective underlying the information. Conveyance of this information is not only to apprise the arrested person of why he or she is being arrested but also to enable the person to seek legal counsel and, thereafter, present a case before the Court under Section 45 to seek release on bail, if desired. In V. Senthil Balaji, the grounds of arrest ran into as many as six pages. The grounds of arrest recorded in the present case for Pankaj Bansal and Basant Bansal have not been produced before this Court; it was contended that they were produced at the time of remand, but that did not serve the intended purpose. It would be practically impossible for either appellant to remember all that was read out for future recall to avail legal remedies, especially when a newly arrested person is not in a calm and collected frame of mind., The grounds of arrest recorded by the authorized officer would be personal to the person arrested and there should ordinarily be no risk of sensitive material being divulged, compromising the sanctity and integrity of the investigation. If any sensitive material finds mention, the officer may redact such portions and furnish an edited copy to the arrested person, thereby safeguarding the investigation., On the foregoing analysis, to give true meaning to the constitutional and statutory mandate of Section 19(1) of the Prevention of Money Laundering Act, 2002 of informing the arrested person of the grounds of arrest, we hold that a copy of such written grounds of arrest must be furnished to the arrested person as a matter of course and without exception. The decisions of the Delhi High Court in Moin Akhtar Qureshi and the Bombay High Court in Chhagan Chandrakant Bhujbal, which hold to the contrary, do not lay down the correct law. In the present case, the admitted position is that the Enforcement Directorate’s Investigating Officer merely read out or permitted reading of the grounds of arrest of the appellants and left it at that, which is disputed by the appellants. This form of communication is not adequate to fulfil compliance with Article 22(1) of the Constitution and Section 19(1) of the Act, and therefore the arrests were not in keeping with the provisions of Section 19(1)., The appeals are accordingly allowed, setting aside the impugned orders passed by the Division Bench of the Punjab & Haryana High Court as well as the impugned arrest orders and arrest memos along with the orders of remand passed by the learned Vacation Judge/Additional Sessions Judge, Panchkula, and all orders consequential thereto. The appellants shall be released forthwith unless their incarceration is validly required in connection with any other case. In the circumstances, we make no order as to costs. Dated: 3 October 2023. New Delhi.
id_1244	0	Leave was granted. This appeal arises out of the judgment of a Division Bench of the Delhi High Court dated 15 July 2022. The appellant invoked the writ jurisdiction of the Delhi High Court seeking permission to terminate her pregnancy before the completion of twenty‑four weeks on 15 July 2022. Other ancillary reliefs were sought. For convenience of reference, the reliefs claimed before the Delhi High Court are extracted below:, A. Permit the petitioner to terminate her ongoing pregnancy through registered medical practitioners at any approved private or government centre or hospital before 15.07.2022 as her relief will be infructuous after that as the pregnancy will be of around 24 weeks by that time; B. Restrain the respondent from taking any coercive action or criminal proceedings against the petitioner or any registered medical practitioner terminating the pregnancy of the petitioner at any approved private centre or hospital registered by the Government of National Capital Territory of Delhi; C. Direct the respondent to include unmarried women also within the ambit of Rule 3B of the Medical Termination of Pregnancy Rules 2003 (as amended on 21.10.2021) for termination of pregnancy under clause (b) of sub‑section (2) Section 3 of the MTP Act, for a period of up to twenty‑four weeks; D. Order an immediate interim relief of stay during the course of proceedings., The appellant is an Indian citizen and a permanent resident of Manipur, currently residing in New Delhi. She is the eldest of five siblings, and her parents are agriculturists. At the time of filing the writ petition before the Delhi High Court, the appellant was carrying a single intra‑uterine pregnancy of twenty‑two weeks gestation. She is an unmarried woman aged about twenty‑five years and became pregnant as a result of a consensual relationship. She wished to terminate the pregnancy because her partner had refused to marry her at the last stage. She stated that she did not want to carry the pregnancy to term due to the social stigma and harassment faced by unmarried single parents, especially women, and because she lacked a source of livelihood and was not mentally prepared to raise a child as an unmarried mother. She further asserted that continuation of the unwanted pregnancy would pose a grave risk to her mental health., The appellant sought permission to terminate her pregnancy under Section 3(2)(b) of the Medical Termination of Pregnancy Act 1971 and Rule 3B(c) of the Medical Termination of Pregnancy Rules 2003 (as amended on 12 October 2021). She also instituted a Criminal Miscellaneous Application for grant of interim relief to terminate her pregnancy during the pendency of the writ petition., By its order dated 15 July 2022, the Delhi High Court issued notice restricted only to prayer C of the writ petition and rejected the Criminal Miscellaneous Application, thereby rejecting prayers A and B. The Delhi High Court observed that Section 3(2)(b) of the Medical Termination of Pregnancy Act was inapplicable because the appellant, being an unmarried woman whose pregnancy arose out of a consensual relationship, was not covered by any of the sub‑clauses of Rule 3B of the Medical Termination of Pregnancy Rules. The Court held that the petitioner, an unmarried woman whose pregnancy arises from a consensual relationship, is clearly not covered by any of the clauses under the Medical Termination of Pregnancy Rules, 2003, and therefore Section 3(2)(b) of the Act is not applicable to the facts of this case., Counsel for the petitioner argued that Rule 3B of the Medical Termination of Pregnancy Rules, 2003 is violative of Article 14 of the Constitution of India because it excludes unmarried women. The Supreme Court of India noted that whether the rule is valid can be decided only after the rule is held ultra vires, for which purpose notice has to be issued in the writ petition, and such notice has been issued by this Court. The Court further observed that, as of today, Rule 3B stands, and while exercising its power under Article 226 of the Constitution of India, the Court cannot go beyond the statute. Granting interim relief now would amount to allowing the writ petition itself., The order of the Delhi High Court gave rise to the present appeal. Notice was issued on the petition for Special Leave to Appeal on 21 July 2022. The Supreme Court of India, by its order dated 21 July 2022, modified the order of the Delhi High Court and permitted the appellant to terminate her pregnancy. The Supreme Court passed the following ad interim order: (i) It directed the Director of the All India Institute of Medical Sciences, Delhi to constitute a Medical Board in terms of the provisions of Section 3(2D) of the Act during the course of 22 July 2022; and (ii) In the event that the Medical Board concludes that the fetus can be aborted without danger to the life of the petitioner, a team of doctors at the All India Institute of Medical Sciences shall carry out the abortion, after ascertaining the wishes of the petitioner again and obtaining her written consent after due verification of identity., Counsel for the petitioner and the respondent stated that a Medical Board was constituted at the All India Institute of Medical Sciences. The Board noted that the petitioner had consented to the termination of her pregnancy and that the procedure could be undertaken without danger to her life. The report submitted by the All India Institute of Medical Sciences indicates that the termination of the pregnancy was safely carried out., As the case involves a substantial question of law, the Supreme Court of India has taken it up for further consideration. The writ petition before the Delhi High Court shall stand transferred to this Court. The significant issue which comes up for determination in this appeal turns on the interpretation of Rule 3B of the Medical Termination of Pregnancy Rules., Dr Amit Mishra, learned counsel appearing on behalf of the appellant, made the following submissions: (a) The appellant is an unmarried woman whose partner refused to marry her; she does not wish to continue the pregnancy and have a child out of wedlock because she lacks financial resources, is not employed, and her parents are farmers; (b) She is not mentally prepared to raise a child by herself, and being compelled to do so would cause grave injury to her physical and mental health; (c) Section 3(2)(b) of the Medical Termination of Pregnancy Act and Rule 3B of the Medical Termination of Pregnancy Rules are arbitrary and discriminatory because they exclude unmarried women, thereby violating Article 14 of the Constitution., Ms Aishwarya Bhati, learned senior counsel and Additional Solicitor General, assisted the Supreme Court in interpreting Section 3(2) of the Medical Termination of Pregnancy Act and Rule 3B(c) of the Medical Termination of Pregnancy Rules. She submitted that (a) legislation must be interpreted guided by the text, context, and object of the statute, including its Statement of Objects and Reasons; (b) modern legislation should be read in view of societal evolution, avoiding literal construction and adopting a purposive interpretation; (c) subordinate legislation should give effect to the parent statute, and where two constructions are possible, the one consonant with the statutory scheme should be adopted; (d) the phrase “change of marital status” in Rule 3B(c) should be interpreted to include unmarried or single women as well as women who are separated or deserted; (e) live‑in relationships are equivalent to marital relationships for purposes of maintenance and succession rights, and national legislations including the Medical Termination of Pregnancy Act do not distinguish between married and unmarried women; and (f) women enjoy the right to bodily integrity, autonomy, and reproductive rights, and are entitled to exercise decisional autonomy., Before discussing the law, it must be noted that the term “woman” in this judgment includes persons other than cis‑gender women who may require access to safe medical termination of their pregnancies., In India, termination of pregnancies must be carried out strictly in terms of the Medical Termination of Pregnancy Act. The preamble of the Act states that it is an Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. The Act specifies the requirements to be fulfilled for terminating a pregnancy, including the persons competent to perform the procedure, the circumstances when abortion is permissible, and the places where the procedure may be performed., Section 3 of the Medical Termination of Pregnancy Act, as amended by the Medical Termination of Pregnancy (Amendment) Act 2021, provides for when pregnancies may be terminated: (1) Notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence under that code or any other law if a pregnancy is terminated by him in accordance with the provisions of this Act; (2) Subject to the provisions of sub‑section (4), a pregnancy may be terminated by a registered medical practitioner (a) where the length of the pregnancy does not exceed twenty weeks; or (b) where the length exceeds twenty weeks but does not exceed twenty‑four weeks for categories of women prescribed by rules made under this Act, provided that not less than two registered medical practitioners, in good faith, are of the opinion that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or grave injury to her physical or mental health, or (ii) there is a substantial risk that the child would suffer a serious physical or mental abnormality. Explanation 1 presumes that a pregnancy resulting from failure of a contraceptive device or method constitutes a grave injury to the mental health of the pregnant woman. Explanation 2 presumes that a pregnancy alleged to have been caused by rape also constitutes a grave injury to the mental health of the pregnant woman., Sub‑section (2A) provides that the norms for the registered medical practitioner whose opinion is required for termination at different gestational ages shall be prescribed by rules made under this Act. Sub‑section (2B) states that the provisions relating to the length of pregnancy shall not apply where termination is necessitated by the diagnosis of substantial fetal abnormalities by a Medical Board. Sub‑section (2C) requires each State Government or Union Territory to constitute a Medical Board by notification in the Official Gazette. Sub‑section (2D) specifies that the Medical Board shall consist of a gynaecologist, a paediatrician, a radiologist or sonologist, and such other members as may be notified., Section 3(3) provides that, in determining whether the continuance of a pregnancy would involve such risk of injury to health, account may be taken of the pregnant woman’s actual or reasonably foreseeable environment. Section 4(a) and (b) stipulate that no pregnancy of a woman who has not attained the age of eighteen years, or who is a mentally ill person, shall be terminated except with the written consent of her guardian, and otherwise no pregnancy shall be terminated except with the consent of the pregnant woman., Section 3 provides that registered medical practitioners shall not be guilty of committing any offence under the Indian Penal Code or any other law if they terminate pregnancies in accordance with the Act. Sub‑section (4) of Section 3 requires consent of the pregnant woman, and if the woman is below eighteen years of age or is mentally ill, the consent of her guardian. Subject to this requirement, sub‑section (2) allows termination where the pregnancy does not exceed twenty weeks, and for certain categories of women where it does not exceed twenty‑four weeks., The Medical Termination of Pregnancy Act empowers the Central Government to enact rules and the State Governments to enact regulations. The Central Government notified the Medical Termination of Pregnancy Rules, which govern aspects such as the District Level Committee, the Medical Board, registered medical practitioners, and the places where a pregnancy may be terminated. Rule 3B, recently amended by the Medical Termination of Pregnancy (Amendment) Rules 2021, is relevant to this discussion. It governs the categories of women eligible for termination of pregnancy up to twenty‑four weeks under clause (b) of sub‑section (2) of Section 3. The categories include survivors of sexual assault or rape or incest, minors, change of marital status during the ongoing pregnancy (widowhood and divorce), women with physical disabilities, mentally ill women including those with mental retardation, fetal malformations with substantial risk of incompatibility with life or serious handicap, and women with pregnancy in humanitarian, disaster, or emergency situations as may be declared by the Government., Despite the enactment of the Medical Termination of Pregnancy Act, several barriers continue to prevent full access to safe and legal abortions, pushing women to seek clandestine, unsafe abortions. These barriers include insufficient infrastructural facilities, lack of awareness, social stigma, and failure to ensure confidential care. Unmarried women often face additional barriers due to gender stereotypes about women’s sexual autonomy outside marriage, which deter them from seeking safe and legal abortions and may contribute to delays or denial of services, thereby negating women’s right to reproductive autonomy., A further impediment is the fear among registered medical practitioners of prosecution under the country’s criminal laws. Under the current legal framework, the Medical Termination of Pregnancy Act merely outlines exceptions to the provisions criminalising abortion in Sections 312 to 318 of the Indian Penal Code. Section 3(1) of the Act contains a non‑obstante clause stating that, notwithstanding anything contained in the Indian Penal Code, a registered medical practitioner shall not be guilty of any offence if a pregnancy is terminated in accordance with the Act. However, Section 5(2) provides penalties when termination is carried out by a person who is not a registered medical practitioner, and Section 5(3) provides penalties when termination is carried out in a place other than that mentioned in Section 4. Registered medical practitioners and women seeking termination are exempted from legal action only when these conditions are fulfilled., Presently, under the Medical Termination of Pregnancy Act, the opinion of a registered medical practitioner, in accordance with the restrictions and grounds laid down in the Act, is decisive. It is on the basis of the opinion formed by registered medical practitioners, either under Section 3 or Section 5, that a woman can terminate a pregnancy. This makes the Act a provider‑centric law. Since a woman’s right to access abortion is conditional on approval by a registered medical practitioner, denial of services by a practitioner compels women to approach courts or seek abortions in unsafe conditions. The fear of prosecution creates a chilling effect on the behaviour of registered medical practitioners, similar to the chilling effect associated with the protection of freedom of speech and expression under Article 19(1)(a)., In Navtej Singh Johar v. Union of India, a Constitution Bench of the Supreme Court held that Section 377 had a chilling effect on the exercise of freedom of individuals, posing a grave danger to the unhindered fulfilment of sexual orientation as an element of dignity and privacy. Justice D Y Chandrachud, J., noted that criminalisation of homosexuality and the associated fear of prosecution and stigma created barriers to accessing HIV prevention services., Although actions of registered medical practitioners done in good faith under the Medical Termination of Pregnancy Act are protected under Section 8, the spectre of criminalisation casts a chilling effect on them. Fear of prosecution often leads to unnecessary delays, and it is a common yet lamentable practice for registered medical practitioners to insist on extra‑legal conditions such as consent from the woman’s family, documentary proofs, or judicial authorisation. If the woman fails to comply with these additional requirements, practitioners frequently decline to provide their services., These extra‑legal requirements have no basis in law. The only material requirement is the woman’s consent, or her guardian’s consent if she is a minor or mentally ill. Registered medical practitioners must refrain from imposing extra‑legal conditions and ensure compliance only with the provisions of the Medical Termination of Pregnancy Act and its accompanying rules and regulations., Before the Medical Termination of Pregnancy Amendment Act 2021 was enacted, petitioners in several High Court cases sought permission to terminate pregnancy where the gestation was below twenty weeks. The unamended Act clearly stated that termination between twelve and twenty weeks was permissible when two registered medical practitioners opined that the request met any of the four grounds mentioned in Section 3(2). Thus, there was no legal requirement to refer cases within the legal limit of twenty weeks to the courts. These cases illustrate the barriers faced by women in accessing safe and legal abortions even when their decision to terminate is permitted by law., The Supreme Court has recognised the disastrous effects of unnecessary delays and lack of promptitude in the attitude of authorities when dealing with terminations. In Z v. State of Bihar, the Court found that state authorities, including Patna Medical College and Hospital, erred in failing to terminate a pregnancy despite the woman seeking an abortion on the ground that she was a victim of rape. The Court rebuked the negligence and carelessness of the authorities, noting that the proceedings in the High Court were unduly delayed, leading to a situation where the pregnancy could not be terminated without endangering the woman’s life. Compensation was awarded to the petitioner., Social stigma surrounding unmarried women also influences a registered medical practitioner’s decision to provide medical termination. Misconceptions that termination of pregnancies of unmarried women is illegal may lead women and their partners to resort to unlicensed medical practitioners in inadequately equipped facilities, increasing the risk of complications and maternal mortality.
id_1244	1	In Surendra Chauhan v. State of Madhya Pradesh, a two‑Judge Bench of the Supreme Court of India upheld the Madhya Pradesh High Court's order to convict the accused under Section 314 read with Section 34 of the Indian Penal Code for causing a woman's death by miscarriage. According to the facts of the case, the accused was in an illicit relation with the deceased, an unmarried woman of twenty‑four years. The deceased woman had become pregnant as a result of this relationship. Both of them approached the clinic of a so‑called doctor (who was named as a co‑accused) to terminate the pregnancy of around three months (approximately twelve weeks). The purported doctor was neither a Registered Medical Practitioner nor was his clinic approved by the government, in terms of the requirements laid down in the Medical Termination of Pregnancy Act. During the procedure for the termination of pregnancy, the woman passed away. This case illustrates the dangers of unsafe abortions undertaken due to the social stigma surrounding pregnancies among unmarried women., The social stigma that women face for engaging in premarital sexual relations prevents them from realizing their right to reproductive health in a variety of ways. They have insufficient or no access to knowledge about their own bodies due to a lack of sexual health education, their access to contraceptives is limited, and they are frequently unable to approach healthcare providers and consult them with respect to their reproductive health. Consequently, unmarried and single women face additional obstacles., The social stigma surrounding single women who are pregnant is even greater and they often lack support from their family or partner. This leads to the proliferation of persons not qualified or certified to practice medicine. Such persons offer the possibility of a discreet abortion and many women may feel compelled by their circumstances to engage the services of such persons instead of opting for a medically safe abortion. As illustrated in Surendra Chauhan (supra), this often leads to disastrous consequences for the woman. Keeping in view these barriers to accessing reproductive healthcare, we now turn to the interpretation of Section 3(2) of the Medical Termination of Pregnancy Act and Rule 3B of the Medical Termination of Pregnancy Rules., The rule of purposive interpretation raises the question whether Rule 3B includes unmarried women, single women, or women without a partner within its ambit. The answer may be discerned by imparting a purposive interpretation to Rule 3B. The cardinal principle of the construction of statutes is to identify the intention of the legislature and the true legal meaning of the enactment. The intention of the legislature is derived by considering the meaning of the words used in the statute, with a view to understanding the purpose or object of the enactment, the mischief, and its corresponding remedy that the enactment is designed to actualise., Ordinarily, the language used by the legislature is indicative of legislative intent. In Kanailal Sur v. Paramnidhi Sadhu Khan, Gajendragadkar, J. (as the learned Chief Justice then was) opined that the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself. But when the words are capable of bearing two or more constructions, they should be construed in light of the object and purpose of the enactment. The purposive construction of the provision must be illumined by the goal, though guided by the word. Aharon Barak opines that in certain circumstances this may indicate giving an unusual and exceptional meaning to the language and words used. Before we engage in the exercise of purposive construction, we must caution that a court's power to purposively interpret a statutory text does not imply that a judge can substitute legislative intent with their own individual notions., The alternative construction propounded by the judge must be within the ambit of the statute and should help carry out the purpose and object of the Act in question. The interpretation of subordinate legislation should be consistent with the enabling Act. A subordinate legislation must be reasonable and in consonance with the legislative policy. It should be interpreted in a meaningful manner, so as to give effect to the purpose and object of the enabling Act. The interpretation which is in consonance with the statutory scheme and gives effect to the statute must be adopted., In Principles of Statutory Interpretation by Justice G. P. Singh, it is stated that a statute must be read in its context when attempting to interpret its purpose. Context includes reading the statute as a whole, referring to the previous state of law, the general scope of the statute, surrounding circumstances and the mischief that it was intended to remedy. The treatise explains that for ascertaining the purpose of a statute one is not restricted to the internal aid furnished by the statute itself, although the text of the statute taken as a whole is the most important material for ascertaining both the aspects of intention. Without intending to lay down a precise and exhaustive list of external aids, Lord Somervell has stated: the mischief against which the statute is directed and, perhaps though to an undefined extent, the surrounding circumstances can be considered. Other statutes in pari materia and the state of the law at the time are admissible. These external aids are also brought in by widening the concept of context 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 the statute was intended to remedy., Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. The best interpretation makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted., The rule of purposive interpretation was first articulated in Heydon's case in the following terms: for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered: (1) what was the common law before the making of the Act; (2) what was the mischief and defect for which the common law did not provide; (3) what remedy Parliament hath resolved and appointed to cure the disease of the commonwealth; and (4) the true reason of the remedy. The office of all the judges is always to make such construction as shall suppress the mischief, advance the remedy, and add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico., In Bengal Immunity Co. v. State of Bihar, the Constitution Bench applied the mischief rule in Heydon's case in the construction of Article 286 of the Constitution. In Kehar Singh v. State (Delhi Administration), a three‑judge Bench of the Supreme Court of India held: During the last several years, the golden rule has been given a go‑by. We now look for the intention of the legislature or the purpose of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it our paramount duty to give the language of the legislature a rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just a one‑to‑one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences., For this purpose, we call in external and internal aids. External aids are: the Statement of Objects and Reasons when the Bill was presented to Parliament, the reports of the Committee, if any, preceding the Bill, legislative history, other statutes in pari materia and legislation in other states which pertain to the same subject matter, persons, things or relations. Internal aids are: Preamble, scheme, enacting parts of the statutes, rules of language and other provisions in the statutes., A catena of decisions emanating from the Supreme Court of India, including Kerala Fishermen's Welfare Fund Board v. Fancy Food, Bharat Singh v. Management of New Delhi Tuberculosis Centre, Bombay Anand Bhavan Restaurant v. Employees' State Insurance Corporation, Union of India v. Prabhakaran Vijaya Kumar, settle the proposition that progressive and beneficial legislation must be interpreted in favour of the beneficiaries when it is possible to take two views of a legal provision., In S. Gopal Reddy v. State of Andhra Pradesh, while interpreting the Dowry Prohibition Act, 1961 (a beneficial legislation), the Supreme Court of India interpreted the meaning of dowry by adopting the purposive interpretation approach: It is a well‑known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr Rao that it is only the property or valuable security given at the time of marriage which would bring the same within the definition of dowry punishable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, demand of dowry as a consideration for a proposed marriage would also come within the meaning of the expression dowry under the Act. If we were to agree with Mr Rao that it is only the demand made at or after marriage which is punishable under Section 4 of the Act, some serious consequences, which the legislature wanted to avoid, are bound to follow. For example, if the bridegroom or his parents or other relatives make a demand of dowry during marriage negotiations and later, after bringing the bridal party to the bride's house, find that the bride or her parents have not met the earlier demand and call off the marriage, they should not escape punishment. The answer must be an emphatic no. It would be adding insult to injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such an interpretation would frustrate the very object of the Act and would run contrary to the accepted principles relating to the interpretation of statutes. This principle has consistently been applied by the Supreme Court of India while construing beneficial legislation. Most recently in K. H. Nazar v. Mathew K. Jacob, Justice Nageshwar Rao, writing for a two‑judge Bench observed: Provisions of a beneficial legislation have to be construed with a purpose‑oriented approach. The Act should receive a liberal construction to promote its objects. Also, literal construction of the provisions of a beneficial legislation has to be avoided. It is the court's duty to discern the intention of the legislature in making the law., While much of law's benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another). Changing social mores must be borne in mind when interpreting the provisions of an enactment to further its object and purpose. Statutes are considered to be always speaking., In Badshah v. Urmila Badshah Godse, the Supreme Court of India reaffirmed that the law should be interpreted in terms of the changing needs of the times and circumstances. Justice A. K. Sikri, J., speaking for a two‑judge Bench of the Supreme Court of India, observed that it is the duty of courts to bridge the gap between law and society by advancing a purposive interpretation of statutes: The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society. The role of the court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. The history of law is the history of adapting the law to society's changing needs. In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purposes of the law., In Navtej Singh Johar (supra), the Supreme Court of India emphasized the transformative nature of our Constitution. Transformative constitutionalism promotes and engenders societal change by ensuring that every individual is capable of enjoying the life and liberties guaranteed under the Constitution. The Supreme Court of India observed that transformative constitutionalism places a duty on the judiciary to ensure and uphold the supremacy of the Constitution, while at the same time ensuring that a sense of transformation is ushered constantly and endlessly in society by interpreting and enforcing the Constitution as well as other provisions of law in consonance with the avowed object., The law must remain cognizant of the fact that changes in society have ushered in significant changes in family structures. In S. Khusboo v. Kanniammal, a three‑judge Bench of the Supreme Court of India acknowledged that live‑in relationships and premarital sex should not be associated with the lens of criminality. The Court observed: While there can be no doubt that in India, marriage is an important social institution, we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view. Some indigenous groups within our country accept sexual relations outside the marital setting as a normal occurrence. Even in the societal mainstream, a significant number of people see nothing wrong in engaging in premarital sex. Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy. Morality and criminality are not co‑extensive., In Deepika Singh v. Central Administrative Tribunal, a two‑judge Bench of the Supreme Court of India (of which one of us, Dr. D. Y. Chandrachud, J., was a part) recognized that family units may manifest in atypical ways: The predominant understanding of the concept of a family both in law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores the many circumstances which may lead to a change in one's familial structure, and the fact that many families do not conform to this expectation. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single‑parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the mother and the father) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination., Societal reality, as observed by the Supreme Court of India in Deepika Singh (supra), indicates the need to legally recognize non‑traditional manifestations of familial relationships. Such legal recognition is necessary to enable individuals in nontraditional family structures to avail of the benefits under beneficial legislation, including the Medical Termination of Pregnancy Act., Over the years, Parliament has enacted legislation bringing about a congruence between the rights of married and unmarried women. The Maternity Benefit Act, 1961 was enacted to provide maternity benefits to women employed in any establishment. In terms of Section 5 of the Maternity Benefit Act, 1961, the payment of maternity benefits is extended to all women (including unmarried women) by the use of the phrase \every woman\., The Hindu Succession Act, 1956 was enacted to codify the law relating to intestate succession among Hindus. Section 6 of the Hindu Succession Act, 1956 pertains to devolution of interest in coparcenary property. Under this provision a daughter, irrespective of her marital status, is a coparcener in her own right in the same manner as the son by virtue of the Hindu Succession (Amendment) Act. Section 8 of the Hindu Adoptions and Maintenance Act, 1956 stipulates that any female Hindu regardless of her marital status has the capacity to take a son or daughter in adoption. Sections 7 and 8 of the Guardian and Wards Act, 1890 allow persons to apply for an order of guardianship without making any distinction between men or women, married or unmarried., Through the above enactments, the law has emphasized that unmarried women have the same rights as married women in terms of adoption, succession, and maternity benefits. Importantly, these legislations also signify that both married and unmarried women have equal decisional autonomy to make significant choices regarding their own welfare., In the evolution of the law towards a gender‑equal society, the interpretation of the Medical Termination of Pregnancy Act and Medical Termination of Pregnancy Rules must consider the social realities of today and not be restricted by societal norms of an age which has passed into the archives of history. As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice., The purpose or object of an enactment is the mischief at which the enactment is directed and the remedy which the lawmakers have devised to address the mischief. A number of decisions, such as Chiranjit Lal Chowdhury v. Union of India, A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, State of Himachal Pradesh v. Kailash Chand Mahajan, and National Insurance Company Limited v. Swaran Singh, lay down that it is desirable to look into the legislative history and the Statement of Objects and Reasons of an enactment to appreciate the background and state of affairs leading up to the legislation and the circumstances which were prevalent at the time the statute was enacted., Prior to the enactment of the Medical Termination of Pregnancy Act, the medical termination of pregnancy was governed by the Indian Penal Code. Chapter XVI of the Indian Penal Code contains a segment titled \Of the causing of miscarriage, of injuries to unborn children, of the exposure of infants, and of the concealment of births\, with Sections 312 to 318 forming a part of this segment. Section 312 criminalizes abortion, making any person (including the pregnant woman herself) liable for causing the miscarriage of a woman with an unborn fetus, except where the procedure is done in good faith in order to save the woman's life. Section 313 stipulates a penalty of imprisonment for life or imprisonment for a term which may extend to ten years when the offence of causing miscarriage is committed without the consent of the woman. Sections 312 to 316 of the Indian Penal Code failed to make a distinction between wanted and unwanted pregnancies, thereby making it extremely onerous for women to access safe abortions. Before 1971, the criminalisation of abortion under the Indian Penal Code often compelled women to seek unsafe, unhygienic and unregulated abortions, leading to an increase in maternal morbidity and mortality., In this background, the Medical Termination of Pregnancy Bill was drafted and introduced in the Rajya Sabha on 17 November 1969. On 2 August 1971, the Medical Termination of Pregnancy Bill was introduced in the Lok Sabha with the intent to liberalise some of the restrictions under Section 312 of the Indian Penal Code., The Medical Termination of Pregnancy Act was enacted by Parliament as a health measure, humanitarian measure and eugenic measure. The relevant portion of the Statement of Objects and Reasons of the Act is extracted below: (1) The provisions regarding the termination of pregnancy in the Penal Code, 1860 which were enacted about a century ago were drawn up in keeping with the then British law on the subject. Abortion was made a crime for which the mother as well as the abortor could be punished except where it had to be induced in order to save the life of the mother. It has been stated that this very strict law has been observed in breach in a very large number of cases all over the country. Furthermore, most of these mothers are married women, and are under no particular necessity to conceal their pregnancy. (2) In recent years, when health services have expanded and hospitals are availed of to the fullest extent by all classes of society, doctors have often been confronted with gravely ill or dying pregnant women whose pregnant uterus have been tampered with a view to causing an abortion and consequently suffered very severely. (3) There is thus avoidable wastage of the mother's health, strength and, sometimes, life. The proposed measure which seeks to liberalise certain existing provisions relating to termination of pregnancy has been conceived as a health measure when there is danger to the life or risk to physical or mental health of the woman; on humanitarian grounds—such as when pregnancy arises from a sex crime like rape or intercourse with a lunatic woman, etc.; and on eugenic grounds where there is substantial risk that the child, if born, would suffer from deformities and diseases., The whole tenor of the Medical Termination of Pregnancy Act is to provide access to safe and legal medical abortions to women. The Act is primarily a beneficial legislation, meant to enable women to access services of medical termination of pregnancies provided by a Registered Medical Practitioner. Being a beneficial legislation, the provisions of the Medical Termination of Pregnancy Rules and the Medical Termination of Pregnancy Act must be imbued with a purposive construction. The interpretation accorded to the provisions of the Act and the Rules must be in consonance with the legislative purpose., The Medical Termination of Pregnancy Amendment Act, 2021 intended to extend the benefits of the statute to all women, including single and unmarried women. The Amendment Act, which came into force on 24 September 2021, introduced a major change in Section 3 of the Act by extending the upper limit for permissible termination of pregnancy from twenty weeks to twenty‑four weeks. Under the unamended Act, a pregnancy could only be terminated under Section 3(2) if it did not exceed twenty weeks. The Amendment Act extended the upper limit and allowed termination of pregnancy up to twenty‑four weeks for specific categories of women based on the opinion of two Registered Medical Practitioners., The Amendment Act also extended the benefit of the legal presumption of a grave injury to the mental health of a woman on account of the failure of contraception, to all women and not just married women. In the unamended Act, Explanation II provided that the anguish caused by a pregnancy resulting from a failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children may be presumed to constitute a grave injury to the mental health of the woman. After the Amendment Act, Explanation I provides that the anguish caused by a pregnancy (up to twenty weeks) arising from a failure of a contraceptive device used by any woman or her partner either for limiting the number of children or for preventing pregnancy can be presumed to constitute a grave injury to a woman's mental health. By eliminating the words \married woman\ or \her husband\ from the scheme of the Act, the legislature intended to clarify the scope of Section 3 and bring pregnancies which occur outside the institution of marriage within the protective umbrella of the law., The Statement of Objects and Reasons of the Amendment locates the purpose within the framework of reproductive rights: With the passage of time and advancement of medical technology for safe abortion, there is a scope for increasing the upper gestational limit for terminating pregnancies especially for vulnerable women and for pregnancies with substantial fetal anomalies detected late in pregnancy. Further, there is a need for increasing access of women to legal and safe abortion services in order to reduce maternal mortality and morbidity caused by unsafe abortion and its complications. Considering the need and demand for increased gestational limit under certain specified conditions and to ensure safety and well‑being of women, it is proposed to amend the Act. The proposed Bill is a step towards safety and well‑being of women and will enlarge the ambit and access of women to safe and legal abortion without compromising on safety and quality of care. The proposal will also ensure dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy., The Statement of Objects and Reasons indicates that the Amendment Act, 2021 is primarily concerned with increasing access to safe and legal abortions to reduce maternal mortality and morbidity. The increase in the upper gestational limit for terminating pregnancies under certain specified conditions was considered necessary to fulfil the goal of ensuring dignity, autonomy, confidentiality and justice for women who need to terminate pregnancy., The unamended Medical Termination of Pregnancy Act of 1971 was largely concerned with married women, as evident from paragraph 1 of its Statement of Objects and Reasons, which stated that most of the women seeking abortions were married, and thus under no particular necessity to conceal their pregnancy. Significantly, the 2021 Statement of Objects and Reasons does not make a distinction between married and unmarried women. Rather, all women are entitled to the benefit of safe and legal abortions., This is consistent with the reply of the Ministry of Health & Family Welfare to the Report on Women's Healthcare: Policy Options by the Committee on Empowerment of Women (2020‑2021).
id_1244	2	The Ministry responded that to increase the access of safe abortion services to all women, the provision of abortion services is proposed for all women irrespective of their marital status. The Committee on Empowerment of Women had recommended raising the permissible period of abortions to twenty‑four weeks and deleting the word 'married' from the legislation. The Committee of Empowerment of Women (2020‑2021), Fourth Report (Seventeenth Lok Sabha) on the action taken by the Government on the recommendations contained in the Eleventh Report (Sixteenth Lok Sabha) on Women’s Healthcare: Policy Options (2021), at page 33, stated that anyone can get an abortion without having to depend on sham clinics as a last recourse., The legislative history of the Medical Termination of Pregnancy (MTP) Act, including the speech of the Minister of Health and Family Welfare while introducing the Amendment Bill, sheds light on the social context that necessitated the MTP Amendment Act 2021. Dr. Harsh Vardhan, who was then the Union Minister for Health and Family Welfare, stated that the purpose of extending the upper gestational limit was to strengthen access to comprehensive abortion care, especially for special categories of women. He further explained that twenty‑six petitions had been filed in the Supreme Court of India and over one hundred petitions had been filed before the High Courts of India seeking permission to abort pregnancies beyond the twenty‑week limit. In view of this, the long‑awaited amendment was introduced., Responding to objections raised about including a woman and her partner instead of a married woman and her husband, the Minister opined that, in keeping abreast of the evolution of social norms, access to abortion facilities must be extended to all women. He explained that, considering an ever‑changing society, the rights of single women, widows, and sex workers must be considered. After the amendment, the scheme of the MTP Act does not distinguish between married and unmarried women for the purpose of medical termination of pregnancy. The Amendment Bill was described as progressive legislation introduced to uphold women’s right to live with dignity., A statutory text concerned with a significant aspect of the right to life and enhancing access to reproductive rights should be given the widest construction. The legislative history of the MTP Amendment Act 2021 provides insight into the hardship the amendment aimed to address. During parliamentary debates on the MTP Amendment Act 2021, statistics were shared on the connection between unsafe abortions and maternal deaths. The continuing crisis of unsafe abortions has loomed large in the history of the MTP Act since 1971. Unsafe abortions are a leading but preventable cause of maternal mortality and morbidity; despite the enactment of the MTP Act in 1971, unsafe abortions remain the third leading cause of maternal mortality, and close to eight women in India die each day due to causes related to unsafe abortions. A study published in BMJ Global Health reported that between 2007 and 2011 an estimated 67 % of abortions carried out were classified as unsafe, and that disadvantaged women, including those from lower socio‑economic status, are at higher risk. Restrictive abortion laws have been shown to increase the incidence of unsafe abortions. In view of this serious social malady, the MTP Amendment Act 2021 intended to improve the availability and quality of legal abortion care for women by liberalising certain restrictive features of the unamended MTP Act and by increasing the legal limit of the gestational period from twenty to twenty‑four weeks., When interpreting a sub‑clause or part of a statutory provision, the entire section should be read together, with different sub‑clauses forming an integral whole. Under Section 3(2)(b) of the MTP Act, not less than two Registered Medical Practitioners must, in good faith, be of the opinion that the continuation of the pregnancy of any woman who falls within the ambit of Rule 3B would involve (i) a risk to her life; (ii) grave injury to her physical health; or (iii) grave injury to her mental health. Alternatively, the two practitioners must be of the opinion that there is a substantial risk of the child suffering from a serious physical or mental abnormality if born. Women who seek to avail the benefit under Rule 3B of the MTP Rules continue to be subject to the requirements of Section 3(2) of the MTP Act., One of the grounds on which termination of pregnancy may be carried out is when the continuance of the pregnancy would involve a risk of injury to the mental health of the woman. The expression 'grave injury to her physical or mental health' used in Section 3(2) is employed in an overarching and all‑encompassing sense. The two explanations appended to Section 3(2) provide the circumstances under which the anguish caused by a pregnancy may be presumed to constitute a grave injury to the mental health of a woman., Courts in the country have permitted women to terminate their pregnancies where the length of the pregnancy exceeded twenty weeks—the outer limit for termination in the unamended MTP Act—by expansively interpreting Section 5, which allows Registered Medical Practitioners to terminate pregnancies beyond the twenty‑week limit when it is necessary to save the life of the woman. In X v. Union of India, Mamta Verma v. Union of India, Meera Santosh Pal v. Union of India, and Sarmishtha Chakrabortty v. Union of India, the Supreme Court of India permitted the termination of post‑twenty‑week pregnancies after taking into account the risk of grave injury to the mental health of a pregnant woman by carrying the pregnancy to term., The grounds for approaching courts differ and include various reasons such as a change in the circumstances of a woman's environment during an ongoing pregnancy, including risk to life, risk to mental health, discovery of fetal anomalies, late discovery of pregnancy in the case of minors and women with disabilities, and pregnancies resulting from sexual assault or rape. These illustrative situations arise from cases that have reached the courts., The expression 'mental health' has a wide connotation and means much more than the absence of a mental impairment or mental illness. The World Health Organization defines mental health as a state of mental well‑being that enables people to cope with the stresses of life, realize their abilities, learn well and work well, and contribute to their community. The determination of the status of one's mental health is located in one's self and experiences within one's environment and social context. Understanding of the term cannot be confined to medical language alone; it should be understood in common parlance. The MTP Act itself recognizes the need to look at the surrounding environment of the woman when interpreting injury to her health. Section 3(3) states that while interpreting grave injury to her physical or mental health, account may be taken of the pregnant woman's actual or reasonably foreseeable environment. Considering a woman's actual or reasonably foreseeable environment becomes pertinent, especially when determining the risk of injury to her mental health., There have been numerous decisions of the High Courts where a purposive interpretation is given to the phrase 'mental health' as used in the MTP Act. In High Court on its Own Motion v. State of Maharashtra, the Bombay High Court correctly held that compelling a woman to continue any unwanted pregnancy violates a woman's bodily integrity, aggravates her mental trauma and has a deleterious effect on her mental health because of the immediate social, financial and other consequences flowing from the pregnancy., In Sidra Mehboob Shaikh v. State of Maharashtra, the Bombay High Court permitted the petitioner to undergo medical termination of her pregnancy on the ground that compelling her to continue with her unwanted pregnancy would be oppressive and would likely cause a grave injury to her mental health. The petitioner, a victim of domestic violence, pleaded that she did not want to raise a child in the absence of financial and emotional support from her husband and that raising a child on her own would be burdensome. The High Court observed that the mental state of a person is a continuum, with good mental health at one end and diagnosable mental illness at the opposite end; therefore, mental health and mental illness, although sounding similar, are not the same., The Bombay High Court has also interpreted the provision purposively in cases involving unmarried petitioners. In XYZ v. State of Maharashtra, an unmarried petitioner aged about eighteen years was allowed to terminate her pregnancy in the twenty‑sixth week after considering her socio‑economic condition and the impact of continuation on her mental health. In Siddhi Vishwanath Shelar v. State of Maharashtra, a twenty‑three‑year‑old petitioner argued that she was not mentally ready to be an unwed mother and sought termination of her approximately twenty‑three‑week pregnancy. The High Court observed that insisting upon continuance of the pregnancy would involve a grave injury to the petitioner's health and took note of the woman's submissions regarding her actual and foreseeable environment., By framing Rule 3B, the legislature intended to address the difficulty women face in accessing abortions when significant changes in their lives impact their physical or mental health after the pregnancy exceeds twenty weeks. The Minutes of the Meeting of the Expert Committee held on 22 June 2021, which deliberated on drafting the MTP Rules, identified various categories of women under Rule 3B, including survivors of sexual violence or rape; mentally challenged women; minors; women with disabilities; cases of fetal anomalies; pregnancies conceived during lactational amenorrhea; single women such as unwed, divorced, widowed or separated women; and women facing difficulties in humanitarian settings, emergencies or natural disasters., The common thread running through each category of women mentioned in Rule 3B is that the woman is in a unique and often difficult circumstance with respect to her physical, mental, social, or financial state. All the categories represent women who seek an abortion after twenty weeks either due to a delay in recognizing pregnancy or because of a change in their environment affecting whether the pregnancy is wanted. The law recognises the myriad ways in which a pregnancy may cause distress and cause grave injury to her physical and mental health, and it gives such women latitude to seek termination by extending the legally permissible gestational period., Rule 3B(a) acknowledges that survivors of sexual assault, rape, or incest may face immense stigma when disclosing the assault to others, including family members. A culture of shame surrounds sexual violence in India, and survivors are often hesitant to speak about the violence inflicted upon them. This is especially true for victims of incestuous sexual assault or rape, whose close relatives may abuse their power and be unwilling to believe the perpetrator is guilty. Many survivors, including minors, may not be aware that pregnancy is a possible consequence of rape. Consequently, a delay in revealing the assault may lead to a delay in discovering the pregnancy, or the woman may be unable to access medical facilities in time to terminate the pregnancy before twenty weeks., Married women may also be survivors of sexual assault or rape. The ordinary meaning of the word 'rape' is sexual intercourse with a person without their consent or against their will, regardless of whether the forced intercourse occurs within marriage. A woman may become pregnant as a result of non‑consensual sexual intercourse performed by her husband. Intimate partner violence is a reality and can take the form of rape. The misconception that strangers are exclusively responsible for sexual and gender‑based violence is deeply regrettable; such violence within the family has long been part of the lived experiences of many women., Existing Indian laws recognise various forms of familial violence. The Pre‑Conception and Pre‑Natal Diagnostic Techniques Act 1994 criminalises the communication of the sex of the fetus to the pregnant woman or her relatives. Section 498A of the Indian Penal Code criminalises physical, mental and emotional abuse. The Dowry Prohibition Act 1961 criminalises the giving and taking of dowry, a form of economic and social violence. Physical or sexual abuse by family members and female infanticide are also criminalised under the Indian Penal Code. Marital assault is part of a long list of deeds that amount to violence in the family context., It is not inconceivable that married women become pregnant as a result of their husbands having raped them. The nature of sexual violence and the contours of consent do not change upon marriage; the institution of marriage does not affect whether a woman has consented to sexual relations. If the woman is in an abusive relationship, she may face great difficulty in accessing medical resources or consulting doctors. Exception 2 to Section 375 of the Indian Penal Code removes marital rape from the definition of rape as a legal fiction. Interpreting rape under the MTP Act and its rules as including marital rape does not strike down Exception 2 or alter the definition of rape in the IPC. Since the challenge to Exception 2 is pending before a different bench of the Supreme Court of India, the constitutional validity will be decided in that or another appropriate proceeding., Notwithstanding Exception 2 to Section 375 of the Indian Penal Code, the terms 'sexual assault' or 'rape' in Rule 3B(a) include a husband's act of sexual assault or rape committed on his wife. Thus, for the purposes of the MTP Act and its rules, rape is understood to include marital rape. Any other interpretation would compel a woman to give birth to and raise a child with a partner who inflicts mental and physical harm upon her., To avail the benefit of Rule 3B(a), a woman does not need to seek formal legal proceedings to prove the fact of sexual assault, rape or incest. Neither Explanation 2 to Section 3(2) nor Rule 3B(a) requires that the offender be convicted under the Indian Penal Code or any other criminal law before the pregnant woman can access an abortion. There is also no requirement that a First Information Report be registered or that the allegation of rape be proved in a court of law before it can be considered true for the purposes of the MTP Act. Such a requirement would be contrary to the object and purpose of the MTP Act. Explanation 2 triggers a legal presumption of mental trauma where the pregnant woman alleges that the pregnancy was caused by rape., Rule 3B(b) includes minors within the category of women who may terminate their pregnancy up to twenty‑four weeks. Adolescents who engage in consensual sexual activity may be unaware that intercourse can result in pregnancy or may be unable to identify the signs of pregnancy. The Protection of Children from Sexual Offences (POCSO) Act 2012 is gender‑neutral and criminalises sexual activity by persons below eighteen years of age. Under the POCSO Act, factual consent in a relationship between minors is immaterial, and the Act does not prevent adolescents from engaging in consensual sexual activity, which can sometimes lead to pregnancy. The legislature was aware of this reality when it included adolescents within the ambit of Rule 3B of the MTP Rules., The absence of sexual health education in the country means that most adolescents are unaware of how the reproductive system functions and how contraceptive devices and methods may be used to prevent pregnancies. Taboos surrounding premarital sex prevent young adults from attempting to access contraceptives. The same taboos cause young girls who discover they are pregnant to be hesitant to reveal this to their parents or guardians, who play a crucial role in accessing medical assistance and intervention., Furthermore, Section 19(1) of the POCSO Act requires that any person, including a child, who has knowledge of the commission of an offence punishable under the Act, or an apprehension that such an offence may be committed, must provide information to the Special Juvenile Police Unit or the local police. Section 19(2) stipulates that every such report shall be assigned an entry number, recorded in writing, read over to the informant, and entered in a book kept by the police unit. Failure to report as mandated by Section 19 is a punishable offence under Section 21 of the POCSO Act. Neither the POCSO Act nor the Protection of Children from Sexual Offences Rules 2012 prescribe a template or format for the report mandated under Section 19(1)., When a minor approaches a Registered Medical Practitioner for a medical termination of pregnancy arising from consensual sexual activity, the practitioner is obliged under Section 19(1) of the POCSO Act to provide information about the offence to the concerned authorities. An adolescent and her guardian may be wary of the mandatory reporting requirement as they may not want to become entangled in the legal process. Minors and their guardians face two options: approach a Registered Medical Practitioner and possibly be involved in criminal proceedings under the POCSO Act, or approach an unqualified doctor for a medical termination. If there is an insistence on disclosing the minor's name in the report under Section 19(1), minors may be less likely to seek out Registered Medical Practitioners for safe termination under the MTP Act., To ensure that the benefit of Rule 3B(b) is extended to all women under eighteen years of age who engage in consensual sexual activity, it is necessary to read the POCSO Act and the MTP Act harmoniously. For the limited purpose of providing medical termination of pregnancy under the MTP Act, the Registered Medical Practitioner, upon request of the minor and her guardian, need not disclose the identity or other personal details of the minor in the information provided under Section 19(1) of the POCSO Act. The practitioner who has provided information under Section 19(1) in reference to a minor seeking termination is also exempt from disclosing the minor's identity in any criminal proceedings that may follow. This interpretation prevents a conflict between the statutory obligation to report under the POCSO Act and the rights to privacy and reproductive autonomy of the minor under Article 21 of the Constitution of India. It could not be the legislature’s intent to deprive minors of safe abortions., As opposed to consensual sexual activity among adolescents, minors are often subjected to sexual abuse by strangers or family members. In such cases, minor girls may, due to their tender age, be unaware of the nature of the abuse inflicted by the abuser or rapist. The guardians of minor girls may belatedly discover the pregnancy, necessitating the leeway granted by Rule 3B., Rule 3B(d) includes women with physical disabilities within the special category of women. They may face additional complications arising from their disabilities and be unable to carry the pregnancy to term. They may also decide against carrying the pregnancy to term due to personal difficulties, mental or physical, that arise from their disability, either directly or indirectly., Women who are mentally ill, including those with intellectual disability, are covered by Rule 3B(e). It extends to all categories of women who have mental illness. Women with mental illnesses may realize the fact of their pregnancy or decide that they do not want to carry it to term later than usual. Moreover, men often sexually assault women with mental illnesses, especially if they have speech or communication disabilities or reside in psychiatric care facilities. Their disability may inhibit them from expressing that they have been raped, leading to a delay in discovering the pregnancy and its termination. In X v. Union of India, a woman with Down syndrome was raped by an unknown person, and her guardian discovered the pregnancy after twenty weeks., Rule 3B(f) includes women where fetal anomalies present a substantial risk of being incompatible with life, or where the child, if born, may suffer from physical or mental abnormalities and be seriously handicapped., Rule 3B(g) addresses changes in the material circumstances of the pregnant woman by accounting for women in humanitarian settings, disasters or emergencies. Refugees who have had to flee their homes, victims of natural or man‑made disasters, or those in other emergencies fall within the ambit of this rule. They may not realise that they are pregnant due to difficulty accessing medical facilities. For instance, in Siddhi Vishwanath Shelar, the petitioner was unable to visit a doctor due to the lockdown instituted during the COVID‑19 pandemic and became aware of her pregnancy only after twenty weeks had elapsed., The decision to give birth to and raise a child is necessarily informed by a woman's material circumstances. The situational, social and financial circumstances of a woman or her family may be relevant to her decision to carry the pregnancy to term. Those who fall victim to emergencies or disasters may unexpectedly find themselves without a home, separated from their families, or having lost loved ones. Their livelihood may be adversely affected, and they may undergo other deeply impactful changes, both material and psychological. The possibility that they have suffered grave injuries affecting their mobility or quality of life cannot be discounted. The myriad changes that may occur in the aftermath of a disaster, emergency or humanitarian crisis cannot be exhaustively listed; each woman's circumstances are unique, and the examples provided illustrate some of the many potential repercussions accounted for in Rule 3B(g)., A woman in such situations may have decided to have a child before the emergency or disaster changed her material circumstances. However, this change may understandably impact her evaluation of the ability to raise a child and her willingness to carry the pregnancy to term. While many women may decide to carry the pregnancy to term, others may no longer find it a viable or practical option. It is ultimately the prerogative of each woman to evaluate her life and choose the best course of action in view of the changes to her material circumstances., Rule 3B(c) states that a change in marital status during the ongoing pregnancy, such as widowhood or divorce, renders women eligible for termination of their pregnancy under Section 3(2)(b). The impact of the continuance of an unwanted pregnancy on a woman's physical or mental health should take into consideration various social, economic and cultural factors operating in her actual or reasonably foreseeable environment, as provided in Section 3(3).
id_1244	3	The rationale behind Rule 3B(c) is comparable to the rationale for Rule 3B(g), that is, a change in a woman's material circumstances during the ongoing pregnancy. Rule 3B(c) is based on the broad recognition of the fact that a change in the marital status of a woman often leads to a change in her material circumstances. A change in material circumstance during the ongoing pregnancy may arise when a married woman divorces her husband or when he dies, as recognized by the examples provided in parenthesis in Rule 3B(c). The fact that widowhood and divorce are mentioned in brackets at the tail end of Rule 3B(c) does not hinder our interpretation of the rule because they are illustrative. A change in material circumstance may also result when a woman is abandoned by her family or her partner. When a woman separates from or divorces her partner, it may be that she is in a different and possibly less advantageous position financially. She may no longer have the financial resources to raise a child. This is of special concern to women who have opted to be a homemaker thereby forgoing an income of their own. Moreover, a woman in this situation may not be prepared to raise a child as a single parent or by coparenting with her former partner. Similar consequences may follow when a woman's partner dies., Women may undergo a sea change in their lives for reasons other than a separation with their partner, detection of foetal abnormalities, or a disaster or emergency. They may find themselves in the same position socially, mentally, financially, or physically as the other categories of women enumerated in Rule 3B but for other reasons. For instance, it is not unheard of for a woman to realise that she is pregnant only after the passage of twenty weeks. Other examples are if a woman loses her job and is no longer financially secure, or if domestic violence is perpetrated against her, or if she suddenly has dependents to support. Moreover, a woman may suddenly be diagnosed with an acute, chronic, or life‑threatening disease, which impacts her decision on whether to carry the pregnancy to term. If Rule 3B(c) was to be interpreted such that its benefits extended only to married women, it would perpetuate the stereotype and socially held notion that only married women indulge in sexual intercourse, and that consequently, the benefits in law ought to extend only to them. This artificial distinction between married and single women is not constitutionally sustainable. The benefits in law extend equally to both single and married women., A recognition of the fact that there may be a change in a woman's material circumstance animates Rule 3B(c), Rule 3B(g) and Rule 3B(f). However, Rule 3B does not enumerate all the potential changes that a woman's material circumstances may undergo. It merely specifies some of the potential changes in sub‑rules (c), (f) and (g). From the object and purpose of the Medical Termination of Pregnancy Act, its overall scheme, and the categories of women specified in Rule 3B, it is evident that it was not the intention of the legislature to restrict the benefit of Section 3(2)(b) and Rule 3B only to women who may be confronted with a material alteration in the limited situations enumerated in Rule 3B. Rather, the benefit granted by Rule 3B must be understood as extending to all women who undergo a change of material circumstances. It is not possible for either the legislature or the courts to list each of the potential events which would qualify as a change of material circumstances. Suffice it to say that each case must be tested against this standard with due regard to the unique facts and circumstances that a pregnant woman finds herself in., Certain constitutional values, such as the right to reproductive autonomy, the right to live a dignified life, the right to equality, and the right to privacy have animated our interpretation of the Medical Termination of Pregnancy Act and the Medical Termination of Pregnancy Rules. A brief discussion of these values is undertaken below., The ambit of reproductive rights is not restricted to the right of women to have or not have children. It also includes the constellation of freedoms and entitlements that enable a woman to decide freely on all matters relating to her sexual and reproductive health. Reproductive rights include the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive healthcare. Women must also have the autonomy to make decisions concerning these rights, free from coercion or violence., Zakiya Luna has, in a 2020 publication, argued that reproduction is both biological and political. According to Luna, it is biological since physical bodies reproduce, and it is political since the decision on whether to reproduce or not is not solely a private matter. This decision is intimately linked to wider political, social, and economic structures. A woman's role and status in family and society generally is often tied to childbearing and ensuring the continuation of successive generations., A woman is often enmeshed in complex notions of family, community, religion, and caste. Such external societal factors affect the way a woman exercises autonomy and control over her body, particularly in matters relating to reproductive decisions. Societal factors often find reinforcement by way of legal barriers restricting a woman's right to access abortion. The decision to have or not to have an abortion is borne out of complicated life circumstances, which only the woman can choose on her own terms without external interference or influence. Reproductive autonomy requires that every pregnant woman has the intrinsic right to choose to undergo or not to undergo abortion without any consent or authorization from a third party., The right to reproductive autonomy is closely linked with the right to bodily autonomy. As the term itself suggests, bodily autonomy is the right to take decisions about one's body. The consequences of an unwanted pregnancy on a woman's body as well as her mind cannot be understated. The foetus relies on the pregnant woman's body for sustenance and nourishment until it is born. The biological process of pregnancy transforms the woman's body to permit this. The woman may experience swelling, body ache, contractions, morning sickness, and restricted mobility, among other side effects. Further, complications may arise which pose a risk to the life of the woman. Therefore, the decision to carry the pregnancy to its full term or terminate it is firmly rooted in the right to bodily autonomy and decisional autonomy of the pregnant woman., In K.S. Puttaswamy v. Union of India, a nine‑judge bench of the Supreme Court of India recognized the right to privacy as a constitutionally protected right under Article 21 of the Constitution. In Puttaswamy (supra), this Court held that the right to privacy enables individuals to retain and exercise autonomy over the body and mind. The judgement described the right to privacy as the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated with matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt., Importantly, Puttaswamy (supra) also deals with facets of reproductive autonomy. Justice Chelameshwar held that a woman's freedom of choice whether to bear a child or abort her pregnancy falls within the realm of privacy. This Court recognized the right to bodily integrity as an important facet of the right to privacy. Puttaswamy (supra) considered Suchita Srivastava v. Chandigarh Administration to reiterate that the statutory right of a woman to undergo termination of pregnancy under the Medical Termination of Pregnancy Act is relatable to the constitutional right to make reproductive choices under Article 21 of the Constitution., In Suchita Srivastava (supra) the Supreme Court of India explicitly recognized the concept of reproductive autonomy. In this case, the victim, an orphaned woman of around 19 years, with mental retardation, became pregnant as a result of a rape that took place while she was an inmate at a government‑run welfare institution. After the discovery of her pregnancy, the Chandigarh Administration approached the High Court of Punjab and Haryana seeking approval for the termination of her pregnancy. The High Court constituted an expert body to conduct an enquiry into the facts. The expert body recorded that the victim had expressed her willingness to bear the child and accordingly recommended the continuation of the pregnancy. However, the High Court directed the termination of the pregnancy on the ground that the victim was mentally incapable of making an informed decision on her own., A three‑judge bench of the Supreme Court of India disagreed with the High Court's decision. In a judgment authored by Chief Justice K.G. Balakrishnan, the Supreme Court emphasized that the consent of the pregnant woman is an essential requirement to proceed with the termination of a pregnancy under the Medical Termination of Pregnancy Act. It was held that the state administration cannot claim guardianship of the woman as she was a major. It was further held that the woman only had mild mental retardation and was therefore competent to give her consent in terms of Section 3(4)(a) of the Medical Termination of Pregnancy Act. This Court concluded that the state must respect the reproductive rights of women with mental retardation with regard to decisions about terminating their pregnancy. In the process, this Court recognized that a woman's right to reproductive autonomy is a dimension of Article 21 of the Constitution., There is no doubt that a woman's right to make reproductive choices is also a dimension of personal liberty as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman's right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman's right to refuse participation in sexual activity or alternatively the insistence on use of contraceptive methods. Furthermore, women are also free to choose birth control methods such as undergoing sterilisation procedures. Taken to their logical conclusion, reproductive rights include a woman's entitlement to carry a pregnancy to its full term, to give birth and to subsequently raise children. However, in the case of pregnant women there is also a compelling State interest in protecting the life of the prospective child. Therefore, the termination of a pregnancy is only permitted when the conditions specified in the applicable statute have been fulfilled. Hence, the provisions of the Medical Termination of Pregnancy Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices., Decision autonomy is an integral part of the right to privacy. Decisional autonomy is the ability to make decisions in respect of intimate relations. In Puttaswamy (supra) this Court held that personal aspects of life such as family, marriage, procreation, and sexual orientation are all intrinsic to the dignity of the individual. The right to privacy safeguards and respects the decisional autonomy of the individual to exercise intimate personal choices and control over the vital aspects of their body and life. In Common Cause v. Union of India, the Supreme Court observed that the right to privacy protects decisional autonomy in matters related to bodily integrity. The right to privacy resides in the right to liberty and in the respect of autonomy. The right to privacy protects autonomy in making decisions related to the intimate domain of death as well as bodily integrity. Continuing treatment against the wishes of a patient is not only a violation of the principle of informed consent, but also of bodily privacy and bodily integrity that have been recognised as a facet of privacy by the Supreme Court., The right to decisional autonomy also means that women may choose the course of their lives. Besides physical consequences, unwanted pregnancies which women are forced to carry to term may have cascading effects for the rest of her life by interrupting her education, her career, or affecting her mental well being., In High Court on its Own Motion (supra), an under‑trial prisoner requisitioned permission to terminate her four‑month pregnancy to a judge of the City Civil and Sessions Court visiting the prison. The woman stated that it would be too difficult for her to maintain another child in addition to her five‑month‑old child, who was suffering from various malaises such as epilepsy, hernia and other illnesses. In such circumstances, the woman stated that it was difficult for her to maintain and take care of another child. The judge forwarded a letter to the High Court of Bombay along with the woman's requisition for information and further action, which was converted into a suo moto public interest litigation. The High Court referred to the relevant provisions of the Medical Termination of Pregnancy Act to observe that mental health can deteriorate if the pregnancy is forced or unwanted. A woman's decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child. These are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman's bodily integrity and aggravates her mental trauma which would be deleterious to her mental health., A woman can become pregnant by choice irrespective of her marital status. In case the pregnancy is wanted, it is equally shared by both partners. However, in case of an unwanted or incidental pregnancy, the burden invariably falls on the pregnant woman affecting her mental and physical health. Article 21 of the Constitution recognizes and protects the right of a woman to undergo termination of pregnancy if her mental or physical health is at stake. Importantly, it is the woman alone who has the right over her body and is the ultimate decision‑maker on the question of whether she wants to undergo an abortion., The right to dignity encapsulates the right of every individual to be treated as a self‑governing entity having intrinsic value. It means that every human being possesses dignity merely by being a human, and can make self‑defining and self‑determining choices. Dignity has been recognized as a core component of the right to life and liberty under Article 21., If women with unwanted pregnancies are forced to carry their pregnancies to term, the State would be stripping them of the right to determine the immediate and long‑term path their lives would take. Depriving women of autonomy not only over their bodies but also over their lives would be an affront to their dignity. The right to choose for oneself, be it as significant as choosing the course of one's life or as mundane as one's day‑to‑day activities, forms a part of the right to dignity. It is this right which would be under attack if women were forced to continue with unwanted pregnancies., In Kesavananda Bharati v. State of Kerala, it was held that dignity forms a part of the basic structure of the Constitution. Such is its fundamental value in our legal system – the concept of dignity forms the very foundation to the Constitution and the rights enshrined in it. Dignity inheres in every individual and is an inalienable aspect of one's humanity., In Francis Coralie Mullin v. Administrator, Union Territory of Delhi, a two‑judge bench of the Supreme Court was dealing with the rights of detainees under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. This Court recognized that the right to dignity is an essential part of the right to life under Article 21 of the Constitution. It was observed: 'We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.', In Justice D.Y. Chandrachud's judgment in Puttaswamy (supra) it was emphasized that privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life., In Navtej Singh Johar (supra), the Supreme Court read down Section 377 of the Indian Penal Code insofar as it criminalised consensual sexual conduct between adults of the same sex. Importantly, this Court also recognised that the members of the LGBTQ+ community are entitled to a full range of constitutional rights protected under the Constitution, including the right to dignity. Chief Justice Dipak Misra indicated the importance of dignity: 'Dignity is that component of one's being without which sustenance of his/her being to the fullest or completest is inconceivable... The purpose of saying so is that the identity of every individual attains the quality of an individual being only if he/she has the dignity.', In Independent Thought v. Union of India, the Supreme Court held that sexual intercourse with a girl below 18 years of age is rape regardless of whether or not she is married. The Court emphatically rejected the argument that the State had a compelling interest in preserving the institution of marriage, and observed that the impact of Exception 2 to Section 375 IPC must be considered with the social realities of the present. In the context of the right to dignity, it was observed that Article 21 of the Constitution gives a fundamental right to a girl child to live a life of dignity. Early marriage takes away the self‑esteem and confidence of a girl child and subjects her, in a sense, to sexual abuse. The right of a girl child to maintain her bodily integrity is effectively destroyed by a traditional practice sanctified by the IPC., In the context of abortion, the right to dignity entails recognizing the competence and authority of every woman to take reproductive decisions, including the decision to terminate the pregnancy. Although human dignity inheres in every individual, it is susceptible to violation by external conditions and treatment imposed by the State. The right of every woman to make reproductive choices without undue interference from the State is central to the idea of human dignity. Deprivation of access to reproductive healthcare or emotional and physical well‑being also injures the dignity of women., Purposive interpretation of Rule 3B furthers the constitutional mandate., Where two constructions of a provision are possible, courts ought to prefer the construction which gives effect to the provision rather than rendering the provision inoperative. Courts must prefer a construction which is in favour of the constitutionality of the statutory provision. A narrow, strict interpretation of a statutory provision which runs counter to the constitutional mandate should be avoided., It seems to us that to give Rule 3B a restrictive and narrow interpretation would render it perilously close to being unconstitutional, for it would deprive unmarried women of the right to access safe and legal abortions between twenty and twenty‑four weeks if they face a change in their material circumstances, similar to married women., The Constitution Bench in Express Newspapers Ltd v. Union of India gave a wider meaning to Section 9(1) of the Working Journalists (Condition of Service) and Miscellaneous Provision Act, 1955, to avoid rendering it unconstitutional. The Working Journalists Act provides for the relevant criteria for the fixation of the rate of wages. The petitioners argued that the Act imposed unreasonable restrictions on the freedom to carry on business on the ground that the capacity of the industry to pay was not set out as one of the criteria in the fixation of wages by the Wage Board. This Court held that the capacity of the industry to pay was one of the essential circumstances which should be taken into consideration for fixation of rate of wages, higher than the bare subsistence or minimum wage., In Githa Hariharan v. Reserve Bank of India, a three‑judge bench of the Supreme Court had to interpret the term 'after him' in Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which provides that the natural guardian of a Hindu minor, in the case of a boy or an unmarried girl, is the father and after him the mother. This Court interpreted 'after him' to mean in the absence of the father to further the constitutional mandate of gender equality as enshrined in Article 14 and Article 15 of the Constitution. The Court stated that narrowly interpreting the phrase to mean a disqualification of a mother to act as a guardian during the lifetime of the father would have made the section unconstitutional for violating the constitutional prohibition against discrimination on the grounds of sex., The object of Section 3(2)(b) of the Medical Termination of Pregnancy Act read with Rule 3B is to provide for abortions between twenty and twenty‑four weeks, rendered unwanted due to a change in the material circumstances of women. In view of the object, there is no rationale for excluding unmarried or single women (who face a change in their material circumstances) from the ambit of Rule 3B.
id_1244	4	A narrow interpretation of Rule 3B, limited only to married women, would render the provision discriminatory towards unmarried women and violative of Article 14 of the Constitution. Article 14 requires the state to refrain from denying to any person equality before the law or equal protection of laws. Prohibiting unmarried or single pregnant women (whose pregnancies are between twenty and twenty-four weeks) from accessing abortion while allowing married women to access them during the same period would fall foul of the spirit guiding Article 14. The law should not decide the beneficiaries of a statute based on narrow patriarchal principles about what constitutes permissible sex, which create invidious classifications and excludes groups based on their personal circumstances. The rights of reproductive autonomy, dignity, and privacy under Article 21 give an unmarried woman the right of choice on whether or not to bear a child, on a similar footing of a married woman., In view of the purposive interpretation accorded to Rule 3B, we are not required to adjudicate upon its constitutional validity., India's obligations under international law. Article 51 of the Constitution requires the state to foster respect for international law and treaty obligations in the dealings of organised people with one another. The Protection of Human Rights Act 1993 recognises and incorporates international conventions and treaties as part of Indian human rights law. International human rights norms contained in treaties and covenants ratified by India are binding on the state to the extent that they elucidate and effectuate the fundamental rights guaranteed by the Constitution., Article 6 of the International Covenant on Civil and Political Rights recognises and protects the inherent right to life of all human beings. The UN Human Rights Committee has remarked that, in terms of Article 6, State Parties have the responsibility to provide safe, legal, and effective access to abortion. Further, it was suggested that State Parties should disseminate quality and evidence-based information and education about sexual and reproductive health to prevent stigmatisation of women and girls seeking abortion., India has also ratified the International Covenant on Economic, Social and Cultural Rights, which enumerates in detail the right to mental and physical health. The Committee on Economic, Social and Cultural Rights in their comment on Article 12 of the International Covenant on Economic, Social and Cultural Rights has observed that the right to sexual and reproductive health is an integral part of the right to the highest attainable physical and mental health., India has ratified the Convention on the Elimination of All Forms of Discrimination against Women. Article 12 of the Convention on the Elimination of All Forms of Discrimination against Women requires the State Parties to take appropriate measures to eliminate discrimination against women in the field of health care services in connection with family planning, pregnancy, confinement, and the post‑natal period. Similarly, Article 16 urges State Parties to eliminate all forms of discrimination against women and to ensure that they have the same right to decide freely and responsibly on the number and spacing of children and access the relevant information to effectively exercise these rights., The UN Committee on the Elimination of Discrimination Against Women emphasized that State Parties should undertake appropriate measures to eliminate discrimination against women in their access to health‑care services, particularly in areas of family planning, pregnancy and confinement, and the post‑natal period. It is also urged that State Parties should refrain from imposing barriers on women who seek to pursue their right to access healthcare, including reproductive healthcare., India's obligations under international law require the state to bring the Medical Termination of Pregnancy Act in conformity with said obligations. The reproductive rights of women must be harmonised in light of the principles laid down under the Constitution as well as the principles of international law codified in the various international conventions ratified by India. Our interpretation of the Medical Termination of Pregnancy Act and the Medical Termination of Pregnancy Rules furthers India’s obligations under international law. However, the state must act proactively in order to ensure that women in India are able to actualise their right to reproductive health and healthcare, in line with the obligations assumed by the country under international law., True realization of reproductive autonomy is possible only by addressing problems in the societal contexts within which individuals, particularly women, are situated. It is not only social stigma which prevents women from realizing the right to health but also caste and economic location. The cost of an abortion at a private hospital may be prohibitive for those whose monthly salaries are a fraction of that cost. Public hospitals in rural areas are often not equipped with the resources to provide the kind and quality of healthcare that ought to be provided free of cost or at highly subsidised rates. A lack of awareness about the resources that public hospitals offer coupled with the discriminatory attitudes of many health providers only serve to exacerbate this problem., The Medical Termination of Pregnancy Act recognises the reproductive autonomy of every pregnant woman to choose medical intervention to terminate her pregnancy. Implicitly, this right also extends to a right of the pregnant woman to access healthcare facilities to attain the highest standard of sexual and reproductive health. It is meaningless to speak of the latter in the absence of the former. Reproductive health implies that women should have access to safe, effective, and affordable methods of family planning and enabling them to undergo safe pregnancy, if they so choose., The Directive Principles of State Policy in Part IV of the Constitution lay down the fundamental principles in the governance of the country and press upon the state to apply them while making laws. Article 38(2) of the Constitution requires the state to promote the welfare of people and eliminate inequalities in opportunities: 'The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.', Article 47 of the Constitution contains a call to the state to improve public health: 'Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about the prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.', In Devika Biswas v. Union of India, the petitioners challenged the mass sterilisation program that was implemented by the government in highly unsanitary conditions. The Supreme Court of India recognized the need to respect and protect different facets of reproductive health as delineated in international human rights law. It noted that government policies affecting reproductive freedoms must be aimed at remedying the systemic discrimination prevailing in society and ensuring substantive equality. In Paschim Banga Khet Mazdoor Samiti v. State of West Bengal, the Supreme Court of India observed that Article 21 imposes an obligation on the state to safeguard the right to health and the right to life of every person. It was held that this constitutional obligation exhorts the state to provide adequate medical services to the people and to ensure timely medical treatment to everyone. The above conspectus of cases reveals that the state has a positive obligation under Article 21 to protect the right to health, and particularly reproductive health of individuals. In terms of reproductive rights and autonomy, the state has to undertake active steps to help increase access to healthcare, including reproductive healthcare such as abortion., The state must ensure that information regarding reproduction and safe sexual practices is disseminated to all parts of the population. Further, it must see to it that all segments of society are able to access contraceptives to avoid unintended pregnancies and plan their families. Medical facilities and Registered Medical Practitioners must be present in each district and must be affordable to all. The government must ensure that Registered Medical Practitioners treat all patients equally and sensitively. Treatment must not be denied on the basis of one's caste or due to other social or economic factors. It is only when these recommendations become a reality that we can say that the right to bodily autonomy and the right to dignity are capable of being realised., We clarify that nothing in this judgment must be construed as diluting the provisions of the Pre‑Conception and Pre‑Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994., We dispose of the present appeal in terms of the reasons stated above. The writ petition before the High Court shall accordingly stand disposed of., Pending applications, if any, stand disposed of.
id_1245	0	Proceedings through Video Conferencing CR.R. No. 177 of 2021 Reserved on 12-08-2021 Delivered on 23-08-2021. Parties: Dilip Pandey, son of Ambika Prasad Pandey, aged about 37 years; Dinesh Kumar, son of Ambika Prasad Pandey, aged about 41 years; Smt. Varsha Pandey, wife of Dinesh Kumar, aged about 37 years, all residing at Ward No. 68, New Changorabhatha, Raipur, near Guman Sahu Aata Chakki, Raipur, Police Station D.D. Nagar, District Raipur, Chhattisgarh. Applicant versus State of Chhattisgarh through Station House Officer, Police Station Bemetara, District Bemetara, Chhattisgarh (non‑applicant). For the applicant: Mr. Y. C. Sharma, Senior Advocate with Shri Sachin Nidhi, Advocate. For the respondent: Mr. Devesh Chandra Verma, Government Advocate. Hon’ble Shri Justice N. K. Chandravanshi, High Court of Chhattisgarh., This criminal revision has been preferred by the applicants against the order dated 22‑01‑2021 passed in S.T. 5/2021 by the Additional Sessions Judge, Bemetara, District Bemetara, by which charges under Sections 498‑A, 34, 376 and 377 of the Indian Penal Code have been framed against applicant No. 1 and a charge under Section 498‑A of the IPC has been framed against applicants No. 2 and 3., Brief facts of the case are that the marriage of the complainant was solemnised with the non‑applicant No. 1 on 08‑06‑2017. Thereafter, they resided together. After a few days of marriage, the applicants started harassing the complainant on demand of dowry, i.e., money and other articles. The applicants also abused her and committed marpit on demand of dowry, money and other articles from her parents. Applicant No. 1 (husband) many times made unnatural physical relations with her. He also inserted his fingers and radish in her vagina, despite her protest. Efforts were made to settle their dispute but they went in vain. Consequently, the complainant filed a written complaint against the applicants at Police Station Bemetara. After investigation, a charge sheet under Sections 498‑A, 377, 376 and 34 of the IPC was filed against the applicants. After affording an opportunity of hearing to the counsel for both parties, the learned trial Court framed the charges as mentioned above., Learned counsel for the applicants submits that the complainant and applicant No. 1 are legally wedded wife and husband; therefore, none of the ingredients to constitute the offence punishable under Sections 376 and 377 of the IPC are present against applicant No. 1, because marital rape is not recognised in India and is not an offence under Exception II of Section 375 of the IPC. He further submits that carnal intercourse against the order of nature with any man, woman or animal voluntarily is a necessary ingredient of Section 377 of the IPC, which is not present in this case. Hence, the order of framing charges against applicant No. 1 under Sections 376 and 377 is illegal and erroneous. He also contends that framing a charge under Section 498‑A against the applicants is not sustainable and prays that the impugned order be set aside and the applicants be discharged from the aforesaid charges. To buttress his argument, he relies on the order of the Gujarat High Court at Ahmedabad in Nimeshbhai Bharatbhai Desai v. State of Gujarat (2018 SCC Online Guj 732)., I have heard learned counsel for both parties and perused the impugned order and material available on record. From perusal of the charge sheet, it is clear that applicant No. 1 and the complainant are legally wedded husband and wife and their marriage was solemnised in June 2017., Section 375 of the IPC defines rape as follows: A man is said to commit rape if he (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, urethra or anus of a woman or makes her do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of the body of such woman or makes her do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her do so with him or any other person, under the circumstances falling under any of the following seven descriptions: (i) against her will; (ii) without her consent; (iii) with her consent obtained by putting her or any person in whom she is interested in fear of death or hurt; (iv) with her consent when the man knows that he is not her husband and that her consent is given because she believes he is another man to whom she is or believes herself to be lawfully married; (v) with her consent when, at the time of giving such consent, by reason of unsoundness of mind, intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent; (vi) with or without her consent, when she is under eighteen years of age; (vii) when she is unable to communicate consent. Explanation 1: For the purposes of this section, vagina shall also include labia majora. Explanation 2: Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non‑verbal communication, communicates willingness to participate in the specific sexual act, provided that a woman who does not physically resist the act of penetration shall not, by reason of that fact alone, be regarded as consenting. Exception 1: A medical procedure or intervention shall not constitute rape. Exception 2: Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape., Exception II of Section 375 makes it clear that sexual intercourse or sexual act by a man with his own wife, the wife not being under eighteen years of age, is not rape. In this case, the complainant is the legally wedded wife of applicant No. 1; therefore, sexual intercourse or any sexual act with her by applicant No. 1 would not constitute an offence of rape, even if it was by force or against her wish. Consequently, the charge under Section 376 framed against applicant No. 1 is erroneous and illegal, and he is entitled to be discharged from that charge., With respect to Section 498‑A, the written report and both statements of the complainant show that after a few days of marriage she was subjected to cruelty by all the applicants by abusing her and committing marpit on demand of dowry, money and other articles from her parents. The father of the complainant, Durgashankar Chaturvedi, and mother, Kanti Chaturvedi, have also supported her statement. These facts have been corroborated by neighbouring witnesses in their police statements. Therefore, I do not find any infirmity in framing charges under Sections 498‑A and 34 of the IPC against the applicants., Regarding the charge under Section 377, the complainant/wife has categorically mentioned in her written report that after marriage applicant No. 1/husband many times made unnatural physical relations with her, but due to shame she did not disclose it to anyone. It has also been mentioned that the applicant/husband inserted his fingers and radish in her private part. The statement of the complainant recorded under Section 164 of the Code of Criminal Procedure and the police statement also narrate the above facts. While considering the offence under Section 377, the Gauhati High Court in Momina Begum v. Union of India (Criminal Petition No. 98/2012, dated 04‑03‑2013) held that penetration of any object by the offender into the sex organ with an intention to derive sexual pleasure is sufficient to constitute the sexual connection against the order of nature necessary to constitute the offence under Section 377. The court explained that the use of the sex organ by the offender in an unnatural way on the victim, with the dominant intention of deriving sexual satisfaction, attracts the ingredient of the offence under Section 377., In the instant case, the complainant has reported that applicant No. 1/husband many times, without her consent, made unnatural physical relations with her and inserted his finger and radish in her private part. Although the complainant has not specified any other unnatural physical relation, the presence of such acts at the stage of framing of charge cannot be said to be erroneous, especially where the dominant intention of the offender is to derive unnatural sexual satisfaction by repeatedly inserting any object in the victim’s sex organ. Therefore, the judgment in Nimeshbhai Bharatbhai Desai is of no assistance to applicant No. 1 with regard to the charge under Section 377., Consequently, I do not find any infirmity or illegality committed by the learned trial Court in framing the charge under Section 377 of the IPC against applicant No. 1/husband. The instant revision is partly allowed. Applicant No. 1 is discharged from the charge framed against him under Section 376 of the IPC. This Court finds that the trial Court has not committed any illegality in framing the charge under Section 377 of the IPC against applicant No. 1 and under Sections 498‑A and 34 of the IPC against all the applicants.
id_1246	0	Petitioner/Applicant versus Respondent. Mr. Rajiv Patil, Senior Advocate, in behalf of Mr. Atharva A. Dandekar for the Petitioner/Applicant. Mr. Ashutosh Kulkarni, Mr. Ranvir Shekhawat and Mr. Akshay Kulkarni in behalf of M/s. Raj Legal for the Respondent. By the impugned interim order dated 9 February 2023 passed in Petition No. A‑250 of 2020, the Family Court, Bandra directed the petitioner husband to hand over custody of the minor daughter to the respondent wife. The impugned order also gave certain directions regarding access and visitation by the petitioner husband., The facts of the case are as follows: The petitioner and the respondent were married under Hindu rites on 18 February 2010. On 4 January 2015, the minor child was born. The petitioner husband claims that in November 2019 he came across chats of the respondent with her friend which revealed the respondent’s sexual encounters with various men. It is alleged that the respondent continued extra‑marital sexual encounters and met one of her paramours in a hotel room on 2 December 2019 and 5 December 2019. On 7 December 2019 the petitioner and his brother informed the respondent’s parents about the alleged sexual encounters; the respondent’s parents, wishing to hear her side, brought her to their house at Borivali. Since 7 December 2019 the respondent has been staying at her parents’ house whereas the minor child continued to stay with the petitioner in the matrimonial house where she had resided since birth. A confession by the respondent about her extra‑marital relations was made in the presence of the petitioner’s family members on 8 December 2019., On 16 January 2020 the respondent lodged FIR No. 15 of 2020 with Vile Parle East Police Station under sections 498A, 377, 354, 323, 504 and 506 read with section 34 of the Indian Penal Code against the petitioner and his family members. On 22 January 2020 the respondent filed Complaint No. 24/DV/2020 under the Protection of Women from Domestic Violence Act, 2005 along with an application for interim custody of the minor child. On 27 January 2020 the petitioner husband filed Divorce Petition No. A‑250 of 2020 before the Family Court under sections 13(1)(i) and 13(1)(i‑a) of the Hindu Marriage Act, 1955 for divorce and permanent custody of the minor child. On 2 January 2021 the Metropolitan Magistrate Court in the domestic violence proceedings rejected the respondent’s interim custody application. On 1 February 2021 the respondent filed Criminal Appeal No. 17 of 2021 before the Sessions Court challenging the order of the Metropolitan Magistrate. On 19 July 2021 the respondent filed an interim custody application (Exhibit‑83) before the Family Court in the pending divorce petition. On 16 January 2022 Vile Parle East Police Station filed a B‑summary report in the respondent’s FIR No. 15 of 2020. On 9 May 2022 the Family Court rejected the interim custody application; the respondent then filed Civil Writ Petition No. 9434 of 2022 before the High Court, which remanded the matter to the Family Court for fresh consideration. On 9 February 2023 the Family Court passed the impugned order granting interim custody to the respondent with certain directions regarding access and visitation rights of the petitioner father. On 16 February 2023 the present petition was filed., The learned senior counsel Mr. Rajiv Patil appeared for the petitioner and the learned counsel Mr. Ashutosh Kulkarni appeared for the respondent., Mr. Patil, senior counsel for the petitioner, submits that considering the grounds on which divorce is sought, interim custody of the girl child should not be given to the mother. He argues that the minor child’s comfort, safety and convenience must be taken into consideration and that the child’s interest would be best served if she remains with the father, whose joint family will take care of her needs. He states that his joint family consists of his parents, brother, sister‑in‑law and niece, all of whom are extremely attached to the child. He further submits that the child’s school, situated in Vile Parle, is ten minutes away from the matrimonial house and her extracurricular activities are in the vicinity of the matrimonial house. He alleges that after the custody was directed to be handed over in February 2023 the minor child has been miserable and has expressed this to the petitioner father by writing notes mentioning ill‑treatment in the respondent’s house and a desire to stay with the petitioner. He says that a psychiatrist examined the child and concluded that the child is very dejected, expressing thoughts of death if she is asked to live with her mother. He urges that the child is extremely comfortable in the petitioner’s house and that the atmosphere in the respondent’s house is not conducive to the child’s welfare., He further submits that there is sufficient material on record to prima facie demonstrate that the respondent has been indulged in extra‑marital sexual encounters and continues to do so, which would give her little regard for the welfare and upbringing of the minor child. He contends that the respondent has leveled false and baseless allegations against the petitioner and his family members, and that the falsity is proved by the B‑summary report filed by the police. He points out that the Sessions Court on 11 April 2023 rejected the respondent’s appeal seeking to challenge the order of the Metropolitan Magistrate rejecting the prayer for temporary custody. He notes that the Sessions Court found the petitioner’s allegations prima facie supported by the documents placed on record and observed that, at this stage, it would not be just and proper to hand over custody of the daughter to the appellant., In support of his submission he relied upon the following decisions: (i) Sheila B. Das v. P. R. Sugasree [(2006) 3 SCC 62]; (ii) a decision of the High Court of Karnataka at Bengaluru; (iii) Nil Ratan Kundu v. Abhijit Kundu [(2008) 9 SCC 7]., Counsel for the respondent, Mr. Kulkarni, submits that the order of the Family Court is a well‑balanced order as it provides access and visitation rights to the father. He points out that the impugned order provides that during weekdays the child is with the mother, attending school and extracurricular activities, and that the child is with the father from Friday evening till Sunday evening, allowing quality time over the weekend. He submits that the allegations of extra‑marital sexual encounters are at this stage only allegations and their veracity will be decided at trial. He argues that the child is at the puberty stage and therefore requires the care and attention of her mother, who is also a doctor. He alleges that during weekend access the petitioner has poisoned the child’s mind against the mother, constituting parental alienation. He states that during the pendency of the present writ petition, in Criminal Appeal No. 17 of 2021 pending before the Sessions Court, the respondent filed a prayer stating that she was not pressing the relief regarding custody as it had already been granted by the Family Court; the appeal is now limited to other claims, but the Sessions Court dismissed the appeal on the custody issue, a decision which is under review. He further submits that proper care is not being taken by the petitioner and his family during weekend access and that the child is being looked after by her nanny. He notes that the petitioner’s mother is a political figure and is rarely available at home. Regarding the psychiatrist report of Dr. Dave, he contends that Dr. Dave is an adult psychiatrist and not a child psychiatrist, making the observations of depression and suicidal tendency in an eight‑year‑old child highly improbable. He adds that another report issued by Dr. Ashish Deshpande, who finds the child fit to decide her place of habitation, conflicts with Dr. Dave’s report, and both should be discarded. He further states that photographs placed on record show the child extremely happy and comfortable with the mother., The court considered the submissions and perused the papers and proceedings with the assistance of learned counsel for the parties. It is noted that the impugned order is an interlocutory order passed under section 26 of the Hindu Marriage Act, 1955 and does not conclusively decide the custody issue. At this stage the veracity of the rival claims has not been adjudicated on the basis of evidence. The sensitive issue before the court is whether, at the interim stage, access of the child should remain with the mother or the status quo ante should be restored and custody given back to the petitioner father., The record indicates that initially the respondent wife sought modification of the physical access order and prayed for virtual access, which was allowed by the Family Court by order dated 6 February 2021. Subsequently, an interim application for interim custody, regular access of the minor child and access during festivals, vacations and birthdays was sought. The application stated that on 7 December 2019 the respondent wife was driven out of her matrimonial house and the petitioner forcibly kept custody of the daughter although the child was only five years of age. It was contended that only after the court orders the petitioner began to give physical access to the minor daughter, which was breached on several occasions. The petitioner objected to the interim custody by reiterating the allegations of extra‑marital sexual encounters. The respondent’s reply alleged that even during the subsistence of the marriage, when the child was unwell on one or two occasions, the respondent did not return home early and gave priority to meeting her paramours instead of being with her ailing daughter. The petitioner further objected on the ground that during vacation access the minor child was miserable after returning and that her studies suffered while she was with the mother., The Family Court took into consideration that the petitioner works as an IT engineer and that the petitioner’s mother is politically connected and a public figure, which may limit the grandmother’s ability to give sufficient time to the child. The Court observed that the respondent now resides in the vicinity of the child’s school, is employed part‑time, and that during her absence her nanny or her parents can take care of the child. Considering the child’s age, the Court noted that she is on the threshold of puberty and that it is essential for a girl child at this stage to remain with her mother, who is a doctor and well equipped to address the needs of a female child. The Court held that while the woman may not be a good wife, it cannot be said that she could not be a good mother. Taking the welfare of the child into consideration, the Court allowed the application and gave certain directions regarding access and visitation rights., The directions are as follows: (i) Application Exhibit‑83 is partly allowed. (ii) The petitioner is directed to hand over interim custody of the minor daughter to the respondent immediately, before a marriage counselor. (iii) All previous orders passed by this Court regarding visitation and access are merged into this order and shall prevail. (iv) Interim custody of the minor daughter is kept with the respondent mother till further order, subject to visitation rights to the petitioner father. (v) The petitioner father shall have physical access or visitation rights to the minor child. (vi) The respondent mother is directed to give overnight access of the minor child to the petitioner. (vii) The petitioner shall pick up the minor child from the gate of the respondent’s house every Friday at about 8.00 p.m. and shall return the child on Sunday at about 7.00 p.m., with prior intimation to the respondent. (viii) The respondent is directed not to remove the minor child from the current school without prior permission of the High Court. (ix) Neither party shall remove the child out of the jurisdiction of the High Court or take the child abroad without prior permission of the High Court. (x) The parties shall deposit the original passport of the child, if any, with the Court and keep it in safe custody till further order. (xi) The parties are at liberty to decide the birthday plan of the minor child with the help of a marriage counselor. (xii) In the event of the child’s birthday, the petitioner shall make arrangements at an agreed place or at the home of a common relative, maintaining decorum and without disturbing others. (xiii) The respondent shall give birthday access to the petitioner from 9.00 a.m. to 4.00 p.m., after which the petitioner shall hand over custody to the respondent. (xiv) The respondent is directed to give interim physical custody of the minor child to the petitioner during half of the school vacations (Diwali, Summer and Christmas), after which custody shall revert to the respondent. (xv) Both parties shall decide the vacation access period mutually or with the help of a marriage counselor. (xvi) Both parties are at liberty to draw a parental plan with the help of a marriage counselor. (xvii) The respondent shall ensure that the child is available for access to the petitioner as directed. (xviii) The respondent shall give telephonic or video‑call access to the petitioner on alternate days from Monday to Thursday between 7.30 p.m. and 8.30 p.m. IST. (xix) The respondent shall provide compensatory access to the petitioner on the next day if any access is missed or denied without fault of the petitioner. (xx) The parties are directed to ensure that their conduct does not affect the child during access periods. (xxi) The parties shall decide the pick‑up and drop‑off arrangements with prior intimation to each other. (xxii) No order as to costs., The court interacted with the child in chambers and found her to be bright. She expressed a desire to be with her father. The petitioner counsel stressed that the comfort and wishes of the child must be considered. While the child is about eight years of age and answered all questions, the court noted that at this tender age the child may not possess mature thinking to make an intelligent preference regarding her welfare; her wishes are likely driven by immediate comfort and are one factor among many to be considered., Comparing the family positions, the petitioner resides in a joint family with his parents, brother, sister‑in‑law and niece, whereas the respondent resides with her parents and has domestic help. The petitioner contends that his joint family will better care for the child. The petition states that in the morning the petitioner father gives the child a bath, breakfast and dresses her for school; thereafter the nanny picks her up from school, gives lunch, and the child plays with cousins or friends. In the evening the child plays in the building compound or is taken to a park by the nanny; the petitioner returns from work, feeds her dinner and puts her to bed around 9 p.m. This narration indicates that the child is with the nanny throughout the day and that the petitioner ensures school drop‑off and bedtime. Conversely, the respondent is employed part‑time, and her presence is assured to meet the child’s day‑to‑day needs and academic pursuits., In his reply to the interim custody application, the petitioner objects, claiming that the child is unhappy and resists access, and that to safeguard her moral and ethical welfare she should spend minimal time with the respondent. He narrates an incident of 12 August 2019 to show that the respondent did not return home early when the child was unwell and was instead meeting a paramour. He reiterates allegations of adultery to argue that the child’s moral and ethical welfare cannot be safeguarded if custody is given to the respondent. The court notes that the present issue is interim custody and the adultery allegations have not been conclusively established. The petitioner has not demonstrated that custody with the mother is detrimental to the child’s moral and ethical welfare. The minor child has been with the petitioner during weekends since February 2023 and no submissions have been made regarding negative moral impact during the mother’s custody. The court observed that the child was well‑behaved during interaction., The court notes that much emphasis has been placed on the child being miserable and desiring to be with the father. The child was with the petitioner since December 2019 and custody was handed over to the mother in February 2023. It will require time for the child to establish a bond with the mother after being shifted from the father’s house where she had lived since birth. The child’s occasional statements of not wanting to reside with her mother may be acts of discipline typical of an eight‑year‑old and should not be elevated to a basis for restoring the status quo ante., The court notes that in its order dated 16 December 2022 in Writ Petition No. 9434 of 2022, filed against the Family Court’s first order rejecting the interim custody application, it observed that no application for interim custody was filed in the domestic violence proceedings and that, based on the protection officer’s letter, the custody issue was decided. The court held that the Family Court has vast jurisdiction to decide custody matters and that its order would prevail., The court observes that there are two conflicting psychiatrist reports, both prepared at the petitioner’s instance by private doctors and not with joint consent or by a government psychiatrist. Accordingly, the court is not inclined to consider these reports., It is now well settled that while considering custody of a minor, the paramount consideration is the welfare of the child. Viewing the age and gender of the child and the facts of the case, the court opines that at this stage it is in the child’s welfare to grant interim custody to the mother. Comfort of the child is one aspect of welfare, which includes physical and mental well‑being, health, comfort and overall social and moral development., The court notes that a girl child of about eight years is undergoing hormonal and physical changes, and that much care is required during this phase. The paternal grandmother or aunt cannot substitute for the mother, who is a qualified doctor and better equipped to understand the transformation the girl will undergo; therefore, the mother is preferred at this stage., The court observes that both parents are extremely attached to the child and desire her well‑being, and therefore they should work towards providing an amiable environment for her balanced growth. Apart from allegations of mood swings and reluctance to meet the mother, there is no reason to set aside the interim custody order granted to the mother. The only serious allegations relate to the respondent’s alleged adulterous relationship, which remain unproven and must be established at trial. If the respondent is provided with weekend overnight access and visitation rights, there is no reason to deny her interim custody., The court notes that the common thread in the authorities relied upon is that the welfare of the child is paramount. Each custody case must be decided on its own merits as slight factual variations can be decisive. In the Apex Court decision in Sheila B. Das v. P. R. Sugasree, the Family Court had directed the mother to hand over custody of a child at the puberty stage to the father, which was upheld by the High Court. In that case, an application under sections 7 and 25 of the Guardians and Wards Act filed by the mother was dismissed, and a special leave petition was filed before the Apex Court. The Apex Court reiterated the well‑settled principle that the paramount consideration is the interest and well‑being of the minor child.
id_1246	1	Supreme Court of India in facts of that case observed that after obtaining the custody of the minor child the respondent does not appear to have neglected the minor and to look after her needs and the child will happy in the respondent's company. Supreme Court of India also considered that no allegation other than the father's purported apathy toward the minor has been leveled against the respondent., In those facts of the case, Supreme Court of India held that the interest of the minor child would be best served if she remains with the father with sufficient access to the respondent mother., In my reading of the said decision, the child was given custody of the father as there was no allegation against the father that he was ineligible to look after the minor child and as regards the girl child attaining age of puberty the respondent father then arranged for his elder sister to come and stay with her and to attend the minor child during her., In the facts of the present case, apart from the allegations of adultery which have been made there is no allegation that the respondent mother has been negligent in taking care of the child after the custody was handed over., In my opinion, the issue has to be decided on facts of each case and there cannot be a straight jacket formula as regards the custody of the child., As regards the decision in the case of Karnataka High Court, the guardianship of the minor child was given to the father after finding that the mother appears to have given more priority to an illicit relationship. As indicated above it is only in the facts and circumstances of each case that the issue as regards the custody of the child can be decided., In the present case, apart from one or two stay incidents which took place during the subsistence of the marriage there is no material produced on record to demonstrate that even after the custody was shifted from the petitioner father to the respondent mother, the respondent mother has neglected the child and priority was given to her alleged illicit relationship., As regards the decision in the case of Nil Ratan Kundu v. Abhijit Kundu, the decision has been pressed in service to support the proposition that if the minor is old enough to form an intelligent preference the Court may consider that preference. In that case Supreme Court of India was considering an appeal filed against the judgment and order passed against the guardianship petition and the entire evidence was before the Court. Supreme Court of India has considered the various provisions of the Guardianship Act and the decisions on the subject and has held that the courts were not justified in granting custody of the child to the respondent father without applying relevant well‑settled principles. However, in my view, the wishes of the child can be taken into consideration but cannot form the solitary reason for grant of custody., Family Court, while granting interim custody to the minor daughter, has taken care to ensure that the visitation and access rights of the petitioner father are well protected. On every Friday at about 8.00 p.m. the petitioner father picks up the child and drops the child on Sunday at 7.00 p.m. Family Court has also given directions regarding per‑day access and 50 % of vacation access of the child as well as virtual access on every alternate day from Monday to Thursday between 7.30 p.m. and 8.30 p.m. Considering the above directions Family Court has balanced the rights of both parties and ensured that the directions are in consonance with the overall welfare of the child. It needs to be borne in mind that the present arrangement is an interim arrangement during the pendency of the proceeding and Family Court, after consideration of the evidence on record, may make appropriate modification as it deems fit regarding the custody of the child considering the welfare of the child. A word of caution may be sounded to the respondent mother that it is expected that she will go the extra mile to ensure that the bond between the child and mother is strengthened., In view thereof there is no merit in the writ petition. The writ petition stands dismissed. Needless to clarify that the observations made herein are only for the purpose of deciding the present petition and Family Court is required to adjudicate the issues on its own merits and uninfluenced by the observations made in the present order., The interim application was preferred seeking the relief of interaction with the child so as to ascertain her wishes. As the same was done in the present case, nothing survives for further consideration and the application is disposed of.
id_1247	0	Present: Smt. Anju Cletus, Judicial First Class Magistrate-III Dated this the 17th day of August 2023 Criminal Miscellaneous Petition 628/2020 in Criminal Case 358/2019 Original Report 14/2012 of Mekkappala Forest Station Petitioner/Complainant: State of Kerala represented by Range Forest Officer, Kodanadu, Original Report 14/12 of Mekkappala Forest Station Respondents: V. Mohanlal (Accused No.1) son of K. Viswanathan Nair, Vismaya, Vidyavihar Nagar, Thevara, Kochi Corporation, Kanayannur taluk, Ernakulam (by Advocate K. R. Radhakrishnan Nair) P. N. Krishnakumar (Accused No.2) son of Nanu Ezhuthachan, No.177 (Krishna) Hill Gardens, Kuttanellur Housing complex, Ollur, Thrissur (by Advocate Antony Lijo M. X) K. Krishnakumar (Accused No.3) son of Krishnamenon, Nayanam, North N.F. Gate, Thrippunithura, Ernakulam District (Ambujalayam) Muthukulangara Temple road, Eroor, Thrippunithura, Nadama village, Kanayannur taluk (no more) Nalini Radhakrishnan (Accused No.4) wife of Puzhankara Krishnan Radhakrishnan, Peninsula Apartment, Flat No.6/D, Tailors road, Peninsula High Road 778, Chennai (by Advocate Sri T. N. Arunkumar) Paulose A. A, aged 48 years, son of Augustine, Anthikadu house, Eloor South, Udyogamandal Post Office, Ernakulam 683510 (Third party intervenor) James Mathew, aged 59 years, son of Late K. Paulose, Kalathil house, Kalanjoor Post Office, Pathanamthitta district (Third party intervenor) (by Advocate Dr. Abraham P. Meachinkara for Third party intervenors). Petition filed under section 321 of the Code of Criminal Procedure by the learned Assistant Public Prosecutor seeking consent of this Judicial First Class Magistrate Court to withdraw from the prosecution against all the accused persons in Criminal Case 358/19 pending before this court., The petition averments in brief are as follows: The Income Tax Department had conducted a search at the residence of the first respondent, who is a popular film actor, on 22 July 2011 and found the first respondent in possession of elephant tusks. On the basis of a communication made by the Income Tax Department, the Divisional Forest Officer, Malayattoor and the Forest Range Officer, Kodanad along with their staff conducted a search in the house of the first respondent and found two elephant tusks fixed on a stand made of rosewood and two tusks fixed on both sides of a mirror at the residence of the first respondent on 21 December 2011 at Kochi. On finding that the first respondent had no lawful authority as prescribed under the Wildlife (Protection) Act 1972 for possession of tusks, the Divisional Forest Officer seized the aforesaid tusks and released the same on bond to one M. J. Antony who is the representative of the first respondent. Consequently, on 12 June 2012 Occurrence Report No.14/2012 was filed before this court with respect to two pairs of elephant tusks found in the illegal possession of the first respondent., After investigation, Form II report against accused No.1 to 4 (Respondents 1 to 4) was laid by the Range Forest Officer, Kodanad before this court on 16 September 2019. The first pair of tusks possessed by the first respondent had been obtained by the first respondent from a dead captive elephant owned by the second respondent, Sri. P. N. Krishnakumar, and a certificate of ownership had been issued to the second respondent as No. WL2-3903/86 dated 12 September 1986 with respect to such tusks. The second pair of tusks belonged to the fourth respondent, Smt. Nalini Radhakrishnan, who had acquired the tusks by way of inheritance from her father‑in‑law, who was the Maharaja of Cochin. Both pairs of tusks had been given by these persons to the first respondent for safe custody with due authorization., During the course of investigation, the Ministry of Environment and Forests vide letter F.No.1-7/2015/WL dated 29 April 2015 of the Central Government addressed the request of the first respondent as letter dated 1 June 2015 and directed him to approach the State Government/Chief Wildlife Warden as per Section 40(4) of the Wildlife (Protection) Act, 1972. The tusks belong to captive elephants with respect to which executive power of the State Government extends and the executive power of the Union does not have any application. In exercise of the special powers under Section 40(4) of the Wildlife (Protection) Act 1972, the State Government vide a notification GO(Rt) 538/2015 (F & WLD) dated 16 December 2015 accorded sanction to the first respondent to declare his possession of the tusks in compliance with the Act., The legality of the possession of the said elephant tusks in question by the first respondent was accepted by the competent authority under the Wildlife (Protection) Act 1972 by issuing a certificate of ownership in Form 16 (No. BD C2‑504/14, OCT No.01/14) dated 16 December 2016 of the Principal Chief Conservator of Forest (Wildlife) and the Chief Wildlife Warden, Kerala as per the GO (Rt) 538/2015 (F&WLD) dated 16 December 2015. Therefore, the possession and the custody of the two pairs of elephant tusks in question by the first respondent became legal as on the date of commencement of the Wildlife (Protection) Act. The government, by issuing a certificate of ownership, is fairly estopped from going back from its previous statement by virtue of Section 115 of the Indian Evidence Act. The ownership certificate issued to the first respondent on 16 December 2015 on the basis of declaration made as per Section 40(4) of the Wildlife (Protection) Act 1972 has the status of a promissory estoppel., After issuing the certificate of ownership and Government Order granting time to make declaration, the occurrence in question has become no offence in the eyes of the penal law by virtue of the doctrine of ex‑post‑facto law. The original source of the tusks could be traced to a period before the coming into force of the Wildlife (Protection) Act 1972 or from the grant of the ownership certificate. The original source of the tusks in this case is a person, and therefore the element of public interest is comparatively less. There is unexplained inordinate delay in filing the occurrence report before the court even after reliable information regarding the occurrence, which shows that the prosecution has been initiated on the basis of an afterthought. The factual situation applies to all accused in this case. This case lacks prospects for successful prosecution. Continuation of the prosecution of this case is a futile exercise and a total wastage of the precious time of this Judicial First Class Magistrate Court., The Government of Kerala vide order No. L3/25/2019‑Home dated 7 February 2020 has extended consent for withdrawal from prosecution in this case. The public interest and justice warrant an early withdrawal from prosecution in this case. According to the Assistant Public Prosecutor, the accused No.1 approached the State Government by offering his willingness to declare possession of two tusks of elephant in question, if he was permitted to do so. Accordingly, in exercise of the special powers under Section 40(4) of the Wildlife Act, 1972 the State Government issued notification G.O(Rt). No. 538/2015/F&WLD dated 16 December 2015 and granted sanction after complying with the mandatory provisions under the Act, 1972. Thereafter, the legality of possession of the two pairs of elephant tusks in question by the first accused was accepted by the competent authority by issuing a certificate of ownership in Form No.16 dated 16 December 2016 of the Principal Chief Conservator of Forest (Wildlife) and the Chief Wildlife Warden, Kerala as per order dated 16 December 2015. Since such a certificate of ownership was issued, the State of Kerala is estopped from contradicting, denying or declaring false the previous statements made by the Public Prosecutor in court, and in order to get good faith of the people and public interest for the Government, the Government should not be allowed to revert from its promises. Therefore, in order to manifest good faith amongst the people, the certificate of ownership has been issued and thereby permission is sought to withdraw from the prosecution., The third party intervenors aforementioned had initially approached this court seeking an opportunity of hearing in the above petition. This Judicial First Class Magistrate Court, by order dated 5 April 2022, dismissed the petitions filed by them finding that they had no locus standi to be heard in the withdrawal petition. However, the Hon'ble High Court of Kerala by order dated 19 May 2022 in Original Criminal Petition No.25/2022 reversed such order and directed this court to proceed with Criminal Miscellaneous Petition 628/2020 with the participation of the third party intervenors and to pass appropriate orders within three weeks from the date of such order. On receiving the order, opportunities were given to the learned Assistant Public Prosecutor and the learned counsel for the third party intervenor for hearing on the withdrawal petition. The third party intervenors filed objection to the withdrawal petition. Argument notes were filed by third party intervenors as well as the counsel for the accused No.1., The contentions raised by the third party intervenors in their objection in brief are as follows: The first respondent had chosen to declare the articles only after Original Report 14/2012 of Mekkappala Forest Station was registered against him under the Wildlife (Protection) Act, 1972. The State Government can exercise its power under Section 40(4) of the Wildlife (Protection) Act only in the case of bona fide inheritance after proper and effective enquiry as prescribed under Section 41 of the Act and publication of notification in the official gazette. There is no gazette notification in this case; hence the alleged certificate of ownership has no legal sanctity and is void ab initio. The public prosecutor cannot rely on the illegal certificate of ownership granted to the first respondent against which a challenge is pending before the Hon'ble High Court of Kerala. The doctrine of estoppel and legitimate expectation cannot be applied to public authorities to justify their wrongful actions., Section 40(1) of the Wildlife (Protection) Act requires that every person having at the commencement of this Act control, custody or possession of any captive animal specified in Schedule I or Part II of Schedule II, or any uncured trophy derived from such animal or salted or dried skin of such animal or the musk of a musk deer or the horn of a rhinoceros, shall, within thirty days of the commencement of this Act, declare to the Chief Wildlife Warden or the authorized officer the number and description of the animal or article and the place where such animal or article is kept. Section 40(2) restricts that no person shall, after the commencement of this Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or otherwise transfer or transport any animal specified in Schedule I or Part II of Schedule II or any uncured trophy or meat derived from such animal, except with the previous permission in writing of the Chief Wildlife Warden or the authorized officer. Section 40(2A) states that no person other than a person having a certificate of ownership shall, after the commencement of the Wildlife (Protection) Amendment Act 2002, acquire, receive, keep in his control, custody or possession any captive animal, animal article, trophy or uncured trophy specified in Schedule I or Part II of Schedule II, except by way of inheritance. Section 40(2B) provides that every person inheriting any captive animal, animal article, trophy or uncured trophy under sub‑section (2A) shall, within ninety days of such inheritance, make a declaration to the Chief Wildlife Warden or the authorized officer and the provisions of sections 41 and 42 shall apply as if the declaration had been made under sub‑section (1) of Section 40. Nothing in sub‑section (2A) and (2B) shall apply to the live elephant. Section 40(3) provides that nothing in sub‑section (1) or sub‑section (2) applies to a recognized zoo subject to the provisions of Section 39‑I or to a public museum. Section 40(4) states that the State Government may by notification require any person to declare to the Chief Wildlife Warden or the authorized officer any animal or animal article or trophy (other than a musk of a musk deer or horn of a rhinoceros) or salted or dried skins derived from an animal specified in Schedule I or Part II of Schedule II in his control, custody or possession in such form, manner and within such time as may be prescribed., On a plain reading of sub‑sections (1), (2), (2A), (2B), (3) and (4) of Section 40 of the Act, the State Government can exercise power under Section 40(4) only in the case of bona fide inheritance, after proper and effective inquiry as stipulated under Section 41 of the Act and publication of notification in the official gazette. There is no gazette notification in this case; hence the alleged certificate of ownership has no legal sanctity and is void ab initio. The Assistant Public Prosecutor cannot rely on the illegal certificate of ownership granted to the first accused as the matter is pending consideration before the Hon'ble High Court of Kerala., The ivory possessed by the first accused is a material involved in Original Report 14 of 2012 of Mekkappala Forest Station which is at the disposal of the trial court only. Sections 50(3A) and 50(4) of the Act, 1972 and Sections 451 and 452 of the Code of Criminal Procedure 1973 require that articles seized shall be dealt with by the magistrate in accordance with law. In this case, neither the four elephant tusks nor thirteen items of wildlife artifacts made of ivory were seized nor produced before the magistrate court. The learned Assistant Public Prosecutor has not mentioned the pendency of two writ petitions WP(C) No.11074 of 2019 and WP(C) No.27187 of 2019 challenging the certificate of ownership to the first respondent. Law must be equal to all citizens without discrimination and withdrawing a case against the accused in the present case where the first accused is a famous film actor is not for any other reason or in accordance with the principles settled by the Apex Court, but the reason is to give clean chit to the first accused being a film actor and the Government never exercised withdrawal of any prosecution initiated under the Forest Act herein before. The withdrawal petition does not serve the ends of justice. Hence, the same is liable to be dismissed., This Judicial First Class Magistrate Court, after hearing the learned Assistant Public Prosecutor and the learned counsel for the third party intervenors, dismissed the withdrawal petition on 9 June 2022 finding that the withdrawal petition had been filed in a hasty manner without addressing the challenges raised before the Hon'ble High Court in WP(C) 27187/2019 by the intervenors regarding legality of the ownership certificate issued to the first accused after registration of Original Report 14/12 of Mekkappala Forest Station., The order dated 9 June 2022 of this court dismissing the withdrawal petition was challenged by the petitioner and the accused before the Hon'ble High Court in Criminal Revision Petition No.591 of 2022, 593/2022 and 754 of 2022. The Hon'ble High Court by common order dated 22 February 2023 set aside the order in Criminal Miscellaneous Petition 628/2020 dated 9 June 2022 with a direction to reconsider the withdrawal petition afresh in the light of settled principles of law as discussed by the Hon'ble High Court and to pass an order within a period of six months., On remand back, the learned Assistant Public Prosecutor, the learned counsel for the third party intervenors Advocate Abraham P. Meachinkara and the learned Senior Counsel Shri S. Sreekumar who appeared for the accused No.1 were heard., The learned Senior Counsel on behalf of the accused No.1 submitted that no prosecution would lie against the accused as the ownership certificate has been granted to him in accordance with law with retrospective effect. It was submitted that this court may not venture into the question of legality of the ownership certificate as the matter is being considered by the Division Bench of the Hon'ble High Court of Kerala. It was also pointed out that there is no allegation that the accused has hunted a wild elephant and thereby obtained the tusks. It was submitted that even going by the prosecution records the tusks belonged to captive elephants and therefore there is no public interest involved in this matter. It was argued that the third party intervenors have involved in this case only as a matter of publicity stunt and continuance of prosecution against the accused would be a futile exercise leading to wastage of precious time of the court., The learned Assistant Public Prosecutor has filed this petition seeking consent to withdraw the prosecution against respondents 1 to 4 (A1 to A4). Form II Forest Offence Charge Sheet was filed by the Range Forest Officer, Kodanad before this court on 16 September 2019 against the four accused in Original Report 14/12 of Mekkappala Forest Station. The two pairs of elephant tusks were allegedly found in the illegal possession of the first accused. The court had taken cognizance of offence under sections 39, 40(2), 40(2A), 49A, 49B, 52, 57 read with sections 2(2)(7)(11)(14)(32)(36) and punishable under section 51(1)(1A) of the Wildlife (Protection) Act, 1972 and issued summons to A1 to A4. A3 is no more. A1, A2 and A4 appeared before this court through their counsel. The petition seeking withdrawal of the prosecution was filed on 23 March 2020, i.e., six months after submission of Form II report. The withdrawal is sought primarily on the ground that after the above Original Report was registered, the accused No.1 had obtained an ownership certificate as per Section 42 of the Wildlife (Protection) Act 1972 in respect of the ivory tusks by virtue of which ownership of the ivory tusks would relate back to the date of commencement of the Wildlife Protection Act and in such circumstances no prosecution would lie against the accused No.1. According to the prosecution, on account of the certificate of ownership issued by the Principal Chief Conservator of Forests (Wildlife) and Chief Wildlife Warden, Kerala in favour of the accused No.1, no prosecution would lie against the accused No.1 to 4. However, the third party intervenors in their objection to the withdrawal petition have urged that the legality of the ownership certificate issued in favour of the accused No.1 is under challenge before the Hon'ble High Court as WP(C) 27187/2019 and in such circumstances it would not be fair to drop the prosecution relying on the impugned ownership certificate. The third party intervenors have also produced a certified copy of the WP(C) 27187/2019 pending before the Hon'ble High Court, before this court., Section 321 of the Code of Criminal Procedure provides: Withdrawal from prosecution. The Public Prosecutor or Assistant Public Prosecutor in charge of a case may, with the consent of the Court, at any time before the judgment is pronounced, withdraw from the prosecution of any person either generally or in respect of any one or more of the offences for which he is tried; and, upon such withdrawal, (a) if it is made before a charge has been framed, the accused shall be discharged in respect of such offence or offences; (b) if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted in respect of such offence or offences. Provided that where such offence (i) was against any law relating to a matter to which the executive power of the Union extends, or (ii) was investigated by the Delhi Special Police Establishment under the Delhi Special Police Establishment Act, 1946, or (iii) involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or (iv) was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, and the Prosecutor in charge of the case has not been appointed by the Central Government, he shall not, unless he has been permitted by the Central Government to do so, move the Court for its consent to withdraw from the prosecution and the Court shall, before granting consent, direct the Prosecutor to produce before it the permission granted by the Central Government to withdraw from the prosecution. Section 321 of the Code of Criminal Procedure does not provide any grounds for seeking withdrawal., The prosecution relied on the decision of the Apex Court in Sheonandan Paswan v. State of Bihar & Ors. (1983 KHC 434 : (1983) 1 SCC 438 : AIR 1983 SC 194) to argue that the Court's jurisdiction in dealing with the application under Section 321 of the Code is only to see whether the Public Prosecutor had applied for withdrawal in the interest of public justice, or he had done so actuated by improper or oblique motive, that a substantial amount of loan has already been realised, that the continuance of the criminal case in the circumstances of this case would be only an exercise in futility at the cost of public money and time. Reliance was placed on the reported decision Saramma Peter v. State of Kerala (1991 KHC 225 : 1991 (1) KLT 881 : 1991 (2) KLJ 47) to argue that the Public Prosecutor has power to seek withdrawal of prosecution., The Hon'ble High Court by its common order dated 22 February 2023 in Criminal Revision Petition No.591 of 2022, 593/2022 and 754 of 2022 observed that valid grounds for seeking withdrawal shall be public policy, interest of administration, expediency to proceed with the prosecution for reasons of State and paucity of evidence. In paragraph 26 of the aforesaid order it is also noted that the learned Public Prosecutor may withdraw from prosecution not merely on ground of paucity of evidence but also on broad principles of public justice. The mere fact that permission was given by the Government to proceed for withdrawal and the Court must take effort to elicit reasons for withdrawal so as to ensure that the Public Prosecutor was satisfied with the withdrawal of prosecution for good and relevant reasons. Similarly, while granting consent, the Court must be satisfied that the Public Prosecutor has not improperly exercised his power or the same is not an attempt to interfere with the normal course of justice. Further the Court has to see that the Public Prosecutor made application in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law. That apart, the Court has to see that the permission has not been sought with an ulterior motive concocted with the vindication of the law that the Public Prosecutor is duty bound to maintain and the Court would be justified in its scrutinizing the nature and gravity of the offence and its impact upon public life, especially where matters involving public fund and public trust are implicated., The Hon'ble High Court observed that the withdrawal petition shall be reappreciated in the light of the principles laid down in State of Kerala v. K. Ajith & Ors. (2021 KHC 6332 : AIR 2021 SC 3954 : ILR 2021 (3) Ker. 567), which discussed earlier decisions dealing with Section 321 of the Code of Criminal Procedure. In K. Ajith & Ors. case, paragraph 23 sets out the principles that govern Section 321 of the Code of Criminal Procedure as follows: Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution; the public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice; the public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution; while the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons; in deciding whether to grant its consent, the court exercises a judicial function but it has been described as supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that (a) the function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes; (b) the application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law; (c) the application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given; (d) the grant of consent sub‑serves the administration of justice; and (e) the permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain. While determining whether the withdrawal of the prosecution sub‑serves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and in a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may, in exercise of the well‑settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent., After considering the rival submissions the Hon'ble High Court at paragraph 31 held: In fact, the grant of ownership certificate is the main challenge in WP(C) No.27187/2019 pending before the Division Bench of this Court. The decision of the Division Bench will be decisive as far as the ownership certificate in dispute is concerned. As far as the question with regard to refusal of leave sought under Section 321 of the Code of Criminal Procedure is concerned, the vital question arises for consideration is whether the prosecution sought permission to withdraw from prosecution as per the settled propositions of law laid down herein above., By virtue of Section 40(1) of the Wildlife Protection Act, 1972, every person having at the commencement of this Act control, custody or possession of any captive animal specified in Schedule I or Part II of Schedule II, or any animal article, trophy or uncured trophy derived from such animal or salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, shall, within thirty days from the commencement of this Act, declare to the Chief Wildlife Warden or the authorised officer the number and description of the animal or article and the place where such animal or article is kept. As per Section 40(2), no person shall, after the commencement of this Act, acquire, receive, keep in his control, custody or possession, sell, offer for sale or otherwise transfer or transport any animal specified in Schedule I or Part II of Schedule II or any uncured trophy or meat derived from such animal, or the salted or dried skins of such animal or the musk of a musk deer or the horn of a rhinoceros, except with the previous permission in writing of the Chief Wildlife Warden or the authorised officer. However, by virtue of Section 40(4) of the Wildlife Protection Act the State Government may, by notification, require any person to declare to the Chief Wildlife Warden or the authorised officer any animal or animal article or trophy (other than a musk of a musk deer or horn of a rhinoceros) or salted or dried skins derived from an animal specified in Schedule I or Part II of Schedule II in his control, custody or possession in such form, manner and within such time as may be prescribed. Therefore, if a person having at the commencement of this Act control, custody and possession of a scheduled animal shall have to make arrangements to declare the same within thirty days from the commencement of this Act. Since the Act came into force in the year 1972 with effect from 1 June 1973, such declaration should have been made on or before 1 July 1973 and not thereafter, as mandated under Section 41 of the Act, 1972. As per Section 42 after commencement of the Act, no person shall acquire, receive and keep in control, custody or possession of the same or transport with previous permission in writing of the Chief Wildlife Conservator otherwise officer.
id_1247	1	As per Section 40(2A) introduced by Act 16 of 2003, no person other than a person having a certificate of ownership shall, after the commencement of the Wildlife (Protection) Amendment Act, 2002, acquire, receive, keep in his control, custody or possession any captive animal, animal article, trophy or uncured trophy specified in Schedule I or Part II of Schedule II, except by way of inheritance. Section 40(2B) provides that every person inheriting any captive animal, animal article, trophy or uncured trophy under sub‑section (2A) shall, within ninety days of such inheritance, make a declaration to the Chief Wildlife Warden or the authorised officer and the provisions of Sections 41 and 42 shall apply as if the declaration had been made under sub‑section (1) of Section 40, provided that nothing in sub‑sections (2A) and (2B) shall apply to the live elephant. Similarly, as per Section 40(4) of the Act, the State Government may, by notification, require any person to declare to the Chief Wildlife Warden or the authorised officer any animal or animal article or trophy (other than a musk of a musk deer or horn of a rhinoceros) or salted or dried skins derived from an animal specified in Schedule I or Part II of Schedule II in his control, custody or possession in such form, in such manner and within such time as may be prescribed. Therefore, in order to make a declaration under Section 40(4), the State Government shall issue a notification, and the person competent to declare shall be those having control, custody or possession of the items specified in Schedule I or Part II of Schedule II in the manner and within the time prescribed., In the present case, the withdrawal is sought primarily on the ground that after the above Ownership Registration was registered, the accused No.1 had obtained an ownership certificate as per Section 42 of the Wildlife Protection Act in respect of the ivory tusks, by virtue of which ownership of the ivory tusks would relate back to the date of commencement of the Wildlife Protection Act and, in such circumstances, no prosecution would lie against the accused No.1. According to the prosecution, on account of the certificate of ownership issued by the Principal Chief Conservator of Forests (Wildlife) and Chief Wildlife Warden, Kerala, in favour of the accused No.1, no prosecution would lie against the accused No.1 to No.4., In the light of the principles laid down in K. Ajiths case (supra) it has to be considered whether withdrawal from prosecution in this case would serve the broad ends of public justice. The Wildlife Protection Act has been enacted to provide for the conservation, protection and management of wildlife and for matters connected therewith or ancillary or incidental thereto with a view to ensuring the ecological and environmental security of the country. Evidently, the Wildlife (Protection) Act, 1972 was enacted to subserve the broader interest of the country and not to protect the rights of individuals. Elephant is an animal included in Schedule I of the Wildlife (Protection) Act 1972 enjoying the highest level of protection, irrespective of whether it is a wild elephant or a captive elephant. Elephant tusks are trophies under Section 2(31) of the Wildlife Protection Act. Illegal possession of elephant tusk is an offence under the Act. It is to be understood that the accused had no authority as per law to possess elephant tusks at the time of registration of Ownership Registration 14/2012. The accused are charged with an offence punishable under Section 51(1)(1A) of the Wildlife Protection Act which prescribes a minimum imprisonment of three years. By virtue of the proviso to Section 54(4) of the Wildlife (Protection) Act 1972, no offence for which a minimum imprisonment has been prescribed in Section 51 shall be compounded. Thus, the legislative intention as it appears from these provisions is that the offences allegedly committed by the accused have to be viewed seriously with a strict interpretation of law., The accused No.1 has allegedly obtained an ownership certificate in respect of the elephant tusks in his possession on 16 December 2016. Thereafter, a Form II report was filed before the Trial Court against the accused after completing the investigation. This Trial Court issued summons to the accused after taking cognizance. On appearance of the accused before the Trial Court, the present petition was filed by the Assistant Public Prosecutor to withdraw the prosecution on the ground that the possession of the elephant tusks by the accused No.1 has become legitimate by virtue of the grant of an ownership certificate with retrospective effect. The validity of the ownership certificate granted during the pendency of the investigation is under challenge before the Division Bench of the High Court of Kerala. The withdrawal of prosecution will be against the broader interest of the country if the grant of the ownership certificate during the investigation is found not to be in accordance with law., While allowing a withdrawal petition the court has to satisfy itself that the prosecutor has formulated an independent opinion before seeking consent to withdraw and that the function of the public prosecutor has not been improperly exercised or is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. The present withdrawal petition has been filed in consequence of the executive action of granting an ownership certificate pertaining to the elephant tusks in favour of the accused No.1. At the time of filing this petition the third‑party intervenors were not participating in any of the proceedings before this Trial Court. However, after the third‑party intervenors have come into the picture as per the direction of the High Court of Kerala, the withdrawal petition of the Assistant Public Prosecutor is objected on the ground that withdrawal is sought on the basis of an ownership certificate which is invalid before law. It was brought to the notice of this Trial Court that the State is a party to the writ petitions now pending before the High Court of Kerala filed by it challenging the validity of the ownership certificate issued to the accused No.1, and the present petition has been filed during the pendency of the writ petitions without mentioning that such a challenge is being contested before the High Court of Kerala. This fact has been willfully or otherwise not disclosed in the withdrawal petition. Thus, it appears that the withdrawal petition has not been filed on an application of a free mind., Section 40(4) of the Act states that 'The State Government may by notification require any person to declare to the Chief Wildlife Warden or the authorized officer any animal or animal article or trophy (other than a musk of a musk deer or horn of a rhinoceros) or salted or dried skins derived from an animal specified in Schedule I or Part II of Schedule II in his control, custody or possession in such form, in such manner and within such time as may be prescribed'. Section 2(22) says notification means a notification published in the Official Gazette. No such Gazette notification has been produced before this Trial Court in support of the application for withdrawal. These circumstances do not inspire confidence in this Trial Court to hold that there has been proper application of mind and free exercise of the discretion of the learned Assistant Public Prosecutor as per Section 321 of the Criminal Procedure Code., The High Court of Kerala, in the common order in Criminal Revision Petition No. 591 of 2022, 593/2022 and Criminal Revision Petition No. 754 of 2022, has observed that law must be uniform to all, irrespective of their status as peasant, poor, middle class or higher class. Admittedly, the accused No.1 is a popular film actor. The intervenors have submitted before this Trial Court that after registration of Ownership Registration in the year 2012 there has been an enormous delay on the part of the investigating agency to submit the Form II report. According to the intervenors, the Form II report was filed by the forest department in the year 2019 after the interference of the High Court of Kerala at the instance of the intervenors. The learned Assistant Public Prosecutor submits that the ownership certificate issued to the first respondent on 16 December 2015 on the basis of the declaration made as per Section 40(4) of the Wildlife (Protection) Act has the status of a promissory estoppel and that the government is prevented from retracting it. The defence of promissory estoppel has been put forth by the prosecution as if the procedure of granting an ownership certificate, irrespective of whether it is legal or illegal, is justified under law. This Trial Court is of the view that the Assistant Public Prosecutor is duty‑bound to convince this Trial Court that the procedure adopted in dropping the prosecution against the accused is in accordance with law., Admittedly, there has been inordinate delay in investigation and prosecution of this case from the very inception. The learned Assistant Public Prosecutor, by way of the withdrawal petition, submitted that there is unexplained inordinate delay in filing the occurrence report before the Trial Court even after reliable information regarding the occurrence in question, which shows that the prosecution has been initiated on the basis of an afterthought. The investigation and prosecution being the prerogative of the State, no one else can be found fault with for the inordinate delay in the proceedings. This Trial Court is of the view that no party, including the State, can claim the benefit of laches from its side., Another argument put forward is that the original source of the tusks in this case is a person, and therefore the element of public interest is comparatively less. It is true that there is no allegation that the accused were personally involved in poaching the elephants. However, as pointed out earlier the accused have been booked for an offence which prescribes a minimum imprisonment and which is non‑compoundable. Considering the legislative intention behind the strict provisions of law, the offences allegedly committed by the accused cannot be viewed lightly. Evidently, it is the larger interest of the country that is affected by the commission of an offence under the Wildlife (Protection) Act and not the individual rights of any person. So, the argument that the element of public interest in this case is less is unacceptable., Another contention of the learned Assistant Public Prosecutor is that the case lacks prospects for successful prosecution and that continuation of the prosecution is a futile exercise and a total wastage of the precious time of this Trial Court. This Trial Court is of the view that nothing would stand in the way of withdrawing the prosecution against Accused No.1 to Accused No.4 if the ownership certificate issued to Accused No.1 is in accordance with law. Even in the absence of a withdrawal petition, the question whether a charge would lie against the accused persons would largely depend on the validity of the ownership certificate which has been issued to the accused No.1. The validity of the ownership certificate would determine whether a successful prosecution is possible in this case or not. So, I am of the view that at this stage of the proceedings it is not possible to conclude whether continuation of the prosecution would be a futile exercise., The Supreme Court of India considered the scope of Section 321 of the Criminal Procedure Code in Balwant Singh & Ors. v. State of Bihar [(1977) 4 SCC 448]. The intervenors argued that Section 321 of the Criminal Procedure Code can be invoked especially in situations such as: (1) communal feuds which may have been amicably settled should not re‑erupt on account of one or two prosecutions pending; (2) labour disputes which might have given rise to criminal cases, when settled, might be another instance where the interest of public justice in the broader connotation may perhaps warrant withdrawal from the prosecution; and (3) other instances where public justice may be served by withdrawal even apart from the merit of the case., The present case does not involve an offence affecting public tranquility, the settlement of which would be desirable to establish peace and harmony in society. As already pointed out, no member of the public is personally aggrieved by the nature of the offence allegedly committed. There are no circumstances in this case which would warrant withdrawal of the prosecution to ensure public justice., In M.N. Shankarayarayanan Nair v. P.V. Balakrishnan [(1972) 1 SCC 318] it has been held that the court should not grant permission to withdraw from prosecution as a necessary formality for the mere asking. In Sheonandan Paswan v. State of Bihar [AIR 1987 SC 877] it was held that the judicial function implicit in the exercise of judicial discretion for granting consent has to satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised or is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes. In Yohanan alias Pappachan v. State of Kerala & Anr. [1996 Cri.L.J. 3883] it was held that a case once filed cannot be mechanically withdrawn and that it is a well‑settled principle that continuation of prosecution to its logical end is the rule and withdrawal of a case is an exception, which could be resorted to only sparingly. If withdrawal is allowed in a routine manner, the confidence of the public in the judicial system will be lost., Considering the broader principles of law in the light of the circumstances of this case, this Trial Court is of the view that the request for withdrawal of the prosecution on the basis of an ownership certificate issued to the accused during the investigation shall not be allowed when the validity of such ownership certificate is under challenge before the Division Bench of the High Court of Kerala. The withdrawal petition has been filed without disclosing the fact that the ownership certificate is under challenge. The prosecution also could not produce before the Trial Court the Gazette notification pertaining to the declaration of possession of the elephant tusks by the accused No.1 and the consequent grant of the ownership certificate., This withdrawal petition has been filed during the pendency of the writ petitions challenging the ownership certificate issued to the accused No.1. The prosecution could not satisfy this Trial Court that the ownership certificate granted to the accused No.1 during the investigation is valid and reliable. Needless to say, nothing would stand in the way of withdrawing the prosecution against Accused No.1 to Accused No.4 if the ownership certificate issued to Accused No.1 is in accordance with law. Even in the absence of a withdrawal petition, the question whether a charge would lie against the accused persons would largely depend on the validity of the ownership certificate which has been issued to the accused No.1. At this stage of the proceedings, I am of the view that it would be in the interest of justice to consider whether the prosecution should continue or not in light of the adjudication yet to be made by the High Court of Kerala regarding the validity of the ownership certificate issued to the accused No.1. Considering these circumstances, I am not inclined to allow the withdrawal petition.
id_1248	0	ITEM NO. 22 Court 3 (Video Conferencing) SECTION II Petition(s) for Special Leave to Appeal (Criminal) No(s). 762/2020 (Arising out of impugned final judgment and order dated 13-01-2020 in MB No. 220/2020 passed by the Allahabad High Court, Lucknow Bench) Date: 07-02-2022 These matters were called on for hearing today. For Petitioners: Mr. K.V. Viswanathan, Senior Advocate; Mr. Prithu Garg, Advocate on Record; Mr. Yudhveer Singh Rawal, Advocate; Mr. Amartya Sharan, Advocate. For Respondents: Mr. Tushar Mehta, Law Department, Senior Government; Mr. Suryaprakash V. Raju, Law Department, Additional Solicitor General; Mr. Zoheb Hussain, Advocate; Mr. Kanu Agrawal, Advocate; Ms. Sairica Raju, Advocate; Mr. Guntur Pramod Kumar, Advocate; Mr. Ratnakar Dash, Senior Advocate; Mr. Amor Chitravanshi, Advocate; Mr. Adarsh Upadhyay, Advocate on Record., The petitioners had filed a petition for quashing of Case Crime No. 540 of 2019 registered at Police Station Hazratganj, District Lucknow, Uttar Pradesh. It is not in dispute that the petitioners have not been named as accused in the said crime. If the petitioners have not been named as accused, the question of quashing the FIR or the case now under investigation by the Central Bureau of Investigation arising from the said crime does not arise, as the petitioners will have no locus to seek such relief. In other words, the petitioners not being named as accused in the said crime or the case now registered by the Central Bureau of Investigation on the basis of the said crime cannot be permitted to ask for quashing of the proceedings concerning some other persons accused., For the same reason, we do not intend to examine the correctness of the relief claimed under Section 438 of the Criminal Procedure Code at the instance of the petitioners herein., It will be open to the petitioners to take recourse to appropriate remedy, as and when they are named by the investigating agency (Central Bureau of Investigation) in connection with the stated offence now under investigation by the Central Bureau of Investigation. The investigating officer of the Central Bureau of Investigation shall give forty‑eight hours advance notice to the petitioners before proceeding against them, so as to enable the petitioners to take recourse to appropriate remedy, as may be advised., All contentions available to both sides are left open. We have passed this order in the peculiar facts of the present case and the response filed by the respondents in this petition., On the earlier occasion, the Supreme Court of India had noticed that a lookout notice was issued against the petitioners. It is now clarified that the said lookout notice was issued by the Uttar Pradesh Police investigating the crime at that time, and that notice has lapsed with the passage of time. In that sense, the writ petitions filed by the petitioners to challenge the said lookout notice would also not survive for consideration. That can be pointed out to the Allahabad High Court where the said petition is pending., This special leave petition is disposed of in the above terms. Pending applications, if any, stand disposed of.
id_1249	0	Supplementary List Criminal Miscellaneous No. 32 of 2022. Latief Ahmad Rather and others, Petitioners, represented by Mr. Hazim Qureshi, Advocate, and Shafeeqa Bhat. Respondents: None. Dated 08 April 2022., The petitioners have challenged the order dated 09 March 2022, passed by the learned Chief Judicial Magistrate, Srinagar, whereby the transfer application filed by the petitioners for transfer of the case under Section 12 of the Protection of Women from Domestic Violence Act, titled Lateef Ahmad Rather and Others versus Shafeeqa Bhat, from the Court of Judicial Magistrate First Class (Second Additional Munsiff), Srinagar to any other court of competent jurisdiction in District Srinagar, was declined., It is averred in the petition that the petition under Section 12 of the Protection of Women from Domestic Violence Act, filed by the respondent against the petitioners, is absolutely false and frivolous. When the petitioners approached the trial magistrate for modification of the order passed by it, the application was not decided despite a number of requests made by the petitioners to the learned trial magistrate. It is further averred that the remarks of the trial magistrate against the petitioners have been abusive in nature, which compelled them to approach the Chief Judicial Magistrate, Srinagar, with an application for transfer of the case from the court of the trial magistrate to any other court of competent jurisdiction. It is contended that the learned Chief Judicial Magistrate, Srinagar, vide the impugned order, rejected the prayer of the petitioners without understanding the gravity of the matter., I have learned counsel for the petitioners and have perused the impugned order and the documents annexed to the petition., It appears that the main grievance of the petitioners is that their application for modification or vacation of the order dated 08 November 2021, passed by the learned trial magistrate in ex parte against the petitioners, is not being considered on its merits expeditiously. There has also been an exchange of harsh words between the learned counsel for the petitioners and the learned magistrate, which forced the petitioners to approach the Chief Judicial Magistrate, Srinagar, seeking transfer of the proceedings from the court of the trial magistrate. The Chief Judicial Magistrate, vide the impugned order, rightly declined to transfer the proceedings from the court of the learned trial magistrate, but, while doing so, the learned Chief Judicial Magistrate made sweeping remarks against the advocates, stating that the advocates level unnecessary allegations against the judicial officers in order to facilitate their personal convenience., There can be no doubt that the grounds urged by the petitioners, seeking transfer of their case from the court of the trial magistrate to any other court of competent jurisdiction, are not cogent. Merely because the learned magistrate has failed to dispose of the application of the petitioners is not a ground to transfer the case. It is also not a ground for transfer of a case if there is an exchange of some hot words between the court and the counsel. Thus the decision of the learned Chief Judicial Magistrate, Srinagar, to decline the transfer of the matter from the trial magistrate is legally correct and cannot be interfered with., However, the sweeping remarks made by the learned Chief Judicial Magistrate were uncalled for and unnecessary for the decision of the case. There may be stray incidents where advocates have resorted to leveling allegations against judicial officers in order to seek transfer of their cases from one court to another to suit their convenience, but this cannot be generalized. Advocates are officers of the court and deserve the same respect and dignity as is given to judicial officers and presiding officers of the courts. Bench and Bar are two wheels of the chariot of justice; both are equal and no one is superior to the other. The members of the Bar, as such, deserve the utmost respect and dignity. There may be some rotten apples in the profession, as is true of every profession, but to say that advocates generally adopt these tactics is not the correct position. The remarks of the Chief Judicial Magistrate, as such, deserve to be expunged., Accordingly, while upholding the order declining to transfer the case passed by the learned Chief Judicial Magistrate, Srinagar, the remarks made by the learned magistrate against the advocates are expunged and it is directed that the same shall not form part of the impugned order. A further direction is issued to the learned trial magistrate to dispose of the application of the petitioners for modification of the order dated 08 November 2021 expeditiously, preferably within a period of fifteen days from the date a copy of this order is made available to the said court. Copies of this order shall be sent to the learned Chief Judicial Magistrate, Srinagar and the Judicial Magistrate (Second Additional Munsiff), Srinagar.
id_125	0	The appellant, Harish Roshan Bhaskar Karnewar, original petitioner, and the respondent, Leelavati Reena Karnewar, original petitioner’s wife, are represented by Advocate Vishwadeep Mate and Advocate Jyoti Dharmadhikari respectively. These are appeals before the Family Court of Nagpur challenging the common judgment dated 02/12/2016 passed by the Family Court of Nagpur., The petitioner instituted Petition No. A‑562/2013 under Section 13(1)(i‑a) and Section 13(1)(iii) of the Hindu Marriage Act, 1955, seeking a decree of divorce on the grounds that the respondent threatened him with suicide, behaved abnormally, and suffered from epilepsy, which the petitioner alleged rendered her of unsound mind. The respondent filed Petition No. A‑697/2013 under Section 9 of the Act for restitution of conjugal rights, denying the allegations, claiming she was driven out of the home, and seeking maintenance of Rs 15,000 per month for herself and Rs 5,000 per month for her daughter, stating that the petitioner earned a gross salary of Rs 41,753 per month as a shunting driver in Central Railways., The respondent categorically denied both grounds pleaded by the petitioner, stating that she had informed him of her seizure disorder prior to marriage and that during her pregnancy she was diagnosed by a neurologist and radiologist with seizures but no mental disorder that would make her unsound of mind., The Family Court of Nagpur, to avoid conflicting decisions, heard both petitions together. The issues framed were: (1) whether the petitioner proved cruelty; (2) whether the respondent was incurably of unsound mind; (3) whether the petitioner was entitled to a decree of divorce; (4) whether the petitioner proved the respondent withdrew from his company without sufficient cause; and (5) whether the respondent was entitled to a decree of restitution of conjugal rights., The petitioner recorded his deposition and examined Doctor Nitin Chandak, a neurologist, and Doctor Satish Vyankatrao Tata, a radiologist. The respondent gave evidence as witness and through Advocate Amit Band. The Family Court found that the petitioner failed to prove that the respondent suffered from epilepsy or any incurable mental disorder making her unsound of mind, and that the respondent lived a normal life with no evidence of cruelty. Consequently, the court dismissed the petition for divorce and allowed the petition for restitution of conjugal rights with maintenance payable by the petitioner., The appeals raise two points for determination: (a) whether the impugned judgment and decree of the Family Court of Nagpur are vitiated by perversity of findings concerning the respondent’s alleged mental disorder or epilepsy under Section 13(1)(i‑a) and Section 13(1)(iii) of the Hindu Marriage Act, 1955; and (b) whether the judgment calls for interference under Section 96 read with Order 41 of the Code of Civil Procedure, 1908., Counsel for the petitioner submitted that the respondent suffered from a mental disorder of epilepsy, which made cohabitation impossible and amounted to cruelty, thereby warranting a decree of divorce under the cited sections. He argued that the Family Court’s finding that epilepsy was not a mental disorder and that cruelty was not proved was perverse and contrary to the evidence., Counsel for the respondent argued that the medical evidence showed the respondent had only occasional seizures, not a continuous condition, and that the alleged suicide note was written under duress when the petitioner, intoxicated, threatened to evict her, not as an expression of her own intent to commit suicide., Section 13 of the Hindu Marriage Act, 1955 provides grounds for divorce, including cruelty (i‑a) and unsoundness of mind or mental disorder (iii). The explanation defines mental disorder as mental illness, arrested or incomplete development of mind, psychopathic disorder, or any other disorder or disability of mind, including schizophrenia., The petition for dissolution relies on the two grounds of cruelty and unsoundness of mind, alleging that the respondent’s aggressive behaviour, threats of suicide, and seizure attacks rendered the marriage intolerable. The respondent denied these allegations in her written statement., To establish a ground under Section 13(1)(iii), the petitioner must prove that the respondent is incurably of unsound mind or suffers continuously or intermittently from a mental disorder of such a kind and extent that cohabitation is unreasonable. The explanation clarifies that mental disorder may include schizophrenia., The petitioner examined Doctor Nitin Chandak, who testified that the respondent was treated for seizures on 13‑08‑2011 and 24‑05‑2014, with normal EEG reports. Doctor Chandak stated that not every seizure disorder is epilepsy and that a person with epilepsy can lead a normal life. Thus, the respondent suffered only a brain seizure, not epilepsy, and even if she had epilepsy, it would not constitute a mental disorder rendering her unsound of mind., The Court referred to Raghunath Gopal Daftardar v. Sau Vijaya Raghunath Daftardar, AIR 1972 Bombay 132, where it was held that epilepsy is not an incurable disease and, with proper treatment, the patient can lead a normal life; therefore, epilepsy does not satisfy the ground of unsound mind under Section 13(1)(iii)., The Court noted that the term “fraud” is not defined in the Hindu Marriage Act, 1955, and that provisions of Section 17 of the Indian Contract Act do not apply to marriages under the Hindu Marriage Act, which are considered a sacrament rather than a civil contract. Accordingly, non‑disclosure of a medical condition such as epilepsy does not constitute fraud that would render the marriage void., Applying the reasoning of Raghunath Gopal Daftardar, the Court held that epilepsy is neither an incurable disease nor a mental disorder for the purpose of Section 13(1)(iii). Consequently, the petitioner failed to prove that the respondent suffered from epilepsy or that such a condition amounted to a ground for divorce. The allegation of cruelty linked to the respondent’s alleged mental condition was also unsupported by evidence. The suicide note was explained as written under duress.
id_125	1	In paragraph 22 of her evidence, she has categorically stated that the letter (Exhibit 47) was written in her handwriting when the petitioner was under the influence of alcohol. There is no denial to the statement in her cross‑examination. The respondent has also specifically stated that she was under the treatment of Doctor Chandak since she was suffering from giddiness (migraine), which was actually diagnosed as seizure for which she was prescribed tablet Levera, which is also an anti‑epileptic drug. No cross‑examination was forthcoming on this evidence led by the respondent, which appears to be fully corroborated by the extensive medical evidence given by Doctor Chandak, who was examined as Party Witness 2 for the petitioner., Looking at the evidence on record, the only conclusion that we can arrive at is that there was no ground made out by the petitioner in terms of Section 13(1)(i‑a) and Section 13(1)(iii) for seeking a decree of dissolution of marriage. The judgment of the Trial Court has considered all the evidence to which we have made a reference and has correctly arrived at its finding, rejecting both grounds for seeking a divorce. The judgment of the Trial Court has considered the medical evidence on record and written a finding that there is no evidence that the respondent had ever attempted to commit suicide or had indulged in behaviour to make out a ground of cruelty, or that she was suffering from epilepsy or any form of mental disorder to make out a ground under Section 13(1)(iii) of the Act. We are in complete agreement with the findings of fact arrived at by the Trial Court, which are in consonance with the evidence on record. There is no perversity in any of the findings arrived at by the Trial Court in passing a decree of dismissal of the petition. We are therefore of the considered opinion that both the points for determination formulated by us are required to be answered in the negative. The appeal must therefore fail., For the reasons stated above, we hereby dismiss the petitioner's Family Court Appeal with no order as to costs. Registry to draw the decree.
id_1251	0	The petition is filed by T. Kaliammal, the mother of the victim, and the State of Tamil Nadu represented by the Principal Secretary, Home Department, Fort St. George, Chennai; the Secretary, Tamil Nadu Legal Service Authority, North Road, Chennai; the Principal Secretary, Department of Health and Family Welfare, Fort St. George, Chennai; the Director General of Police, Dr. Radhakrishnan, Salai, Chennai; the Chairman, District Legal Service Authority, District Court Building, Thoothukudi; the District Collector, Office of the District Collector, Thoothukudi District; the Superintendent of Police, Office of the Superintendent of Police, Thoothukudi District; the Inspector of Police, All Women Police Station, Kadambur, Thoothukudi District; the Dean, Government Hospital and Medical College, Thoothukudi District; and the District Legal Services Authority, Thoothukudi. The respondents were suo motu impleaded by court order dated 14 June 2023 in W.P. (MD) No. 3252 of 2020. The petition is filed under Article 226 of the Constitution of India, praying for a writ of mandamus directing the respondents to provide fair and reasonable compensation for the petitioner’s daughter., The petitioner is the mother of a mentally and physically challenged daughter who has been sexually assaulted by a neighbour aged about 55 years. The family is indigent; the mother works as an agricultural labourer and the father is a watchman in a private company. They have two children: a son aged about 18 years studying B.Com at Mano Arts College, Thoothukudi, and the victim daughter. The father is employed in Chennai, leaving the mother and children alone. The accused exploited the victim’s disability and committed aggravated penetrative sexual assault on several occasions. The victim became pregnant; the mother learned of this and lodged a complaint at All Women Police Station, Kadambur, Tuticorin, resulting in an FIR under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The petitioner seeks a mandamus to terminate the pregnancy, provide police protection, and award reasonable compensation to the victim., By order of the High Court of Tamil Nadu dated 18 February 2020, the Dean, Government Hospital Medical College, Thoothukudi, the ninth respondent, was directed to examine the petitioner’s daughter, submit a detailed report on her status, the age of the foetus, and her medical fitness for termination of pregnancy. The Court directed termination of the pregnancy, which was complied with, and an interim compensation of Rs 1,00,000 was sanctioned to the victim., The accused later died, and the criminal proceedings were closed as abated. The Court examined the possibility of rehabilitating the mentally challenged victim and directed the Dean to submit a report on rehabilitation schemes and centres established by the Government of Tamil Nadu for mentally challenged female children. The Dean listed St. Joseph Charitable Trust at Adaikalapuram, Tiruchendur, as one such institute., Counsel for the petitioner was asked to obtain the mother’s consent for sending the victim to the rehabilitation centre, where she would have to remain in‑house. The Dean clarified that the mother could visit the victim every weekend. The mother did not accept the suggestion. At the time of terminating the pregnancy, the victim was under the care of the State in a rehabilitation centre and was later taken back by her parents., The fifth respondent, the Chairman of the District Legal Service Authority, filed a counter‑statement that lacks a humane approach and legal sensitivity. The Legal Services Authority Act aims to provide free and competent legal services to weaker sections of society, but the counter merely prays for dismissal of the writ petition without assisting in rehabilitation or compensation for the mentally and physically challenged victim., The Special Court, without adhering to Section 33(8) of the POCSO Act and Rule 7(1) and Rule 7(2) of the Legal Services Authorities Act, 1987, closed the case as charge abated. Section 33(8) allows the Special Court to direct payment of compensation for physical or mental trauma or immediate rehabilitation. Rule 7 provides that the Child Welfare Committee shall recommend legal aid and assistance to the child, and such aid shall be provided in accordance with the Legal Services Authorities Act, 1987., The closure caused grave injustice to the victim, as the bar under Section 362 of the Code of Criminal Procedure would prevent further compensation claims. The petitioner rightly approached the High Court of Tamil Nadu, which has the power to remedy this wrong. In an unreported judgment in Criminal Appeal No. 1890 of 2014, the Supreme Court discussed the power of courts exercising jurisdiction under Article 226 of the Constitution of India, emphasizing that such power is a succour to remedy injustice., The Supreme Court, in Tekan Alias Tekram v. State of Madhya Pradesh (now Chhattisgarh) reported in (2016) 4 SCC 461, directed all States and Union Territories to formulate a uniform scheme for victim compensation in cases of rape or sexual exploitation, taking into consideration the scheme framed by the State of Goa for rape victim compensation, especially for physically handicapped women., The Government of Tamil Nadu issued Government Order (Ms) No. 33, Social Welfare and Nutritious Meal Programme, Department, dated 03 October 2020, wherein the Commissioner of Social Defence was requested to establish a separate fund called the Tamil Nadu Child Victim Compensation Fund under the POCSO Act, with an initial allocation of Rs 14.96 crore as recurring expenditure. The fund provides interim compensation of Rs 20,000 and a quantum of compensation ranging from a minimum of Rs 50,000 to a maximum of Rs 10,00,000, as detailed in the annexure to the order. An initial sum of Rs 2 crore was set aside for this fund., Subsequently, Government Order (Ms) No. 32, Social Welfare and Women Empowerment, Department, dated 10 July 2021, approved guidelines for the compensation and administration of the Tamil Nadu Child Victim Compensation Fund under the POCSO Act. The guidelines specify eligibility criteria, procedure for grant of compensation, and disbursement mechanisms, including adjustment of interim compensation against final compensation and consideration of other compensation paid by the State., Eligibility for compensation requires an order by the Special Court, either on its own or on an application filed on behalf of the child, for interim or final compensation. The District Child Protection Officer must forward a proposal, along with the Special Court order and FIR copy, to the Commissioner/Director of Social Defence within two working days. The Commissioner/Director shall disburse interim compensation within ten working days and final compensation within thirty days of receiving the Special Court’s directions., In the present case, the victim is entitled to the maximum compensation under Serial Nos. 2 and 12 of the annexure to Government Order (Ms) No. 33, amounting to Rs 13,00,000. Accordingly, the High Court of Tamil Nadu directs that a compensation of Rs 14,00,000 (Rupees Fourteen Lakhs only) be paid to the victim. The sum shall be deposited in an interest‑bearing account with the mother as guardian, who may withdraw interest monthly. The amount shall be used solely for the upkeep and rehabilitation of the victim. The District Child Protection Officer shall visit the victim’s home once in three months and submit a report to the District Legal Services Authority, Thoothukudi. If the report indicates misuse of funds, an application may be made to the Court for modification of the orders. The amount shall be paid from the Tamil Nadu Child Victim Compensation Fund by the fifth respondent within four weeks of receipt of a copy of this order and compliance report., With the above observations and directions, the writ petition is disposed of. No costs. Consequently, the connected miscellaneous petition is closed.
id_1252	0	Dated 05.01.2023 To the Secretary General, Supreme Court of India Dear Sir, On behalf of and on instructions of my client, Jaipur Vidyut Vitran Nigam Ltd., which is wholly owned and run by the State of Rajasthan, and in consonance with the instructions of Mr. Dushyant Dave, Senior Advocate, who is leading us in the matter on behalf of Jaipur Vidyut Vitran Nigam Ltd., I, the undersigned, am writing this letter., This letter raises an extraordinarily serious question going to the very root of the institutional integrity of the Registry of the Honourable Supreme Court of India. The question is how Miscellaneous Application Diary No. 21994 of 2022 in Civil Appeal No. 8625‑8626 of 2019 has been cleared by the Registry and listed for orders before the Court. The Miscellaneous Application seeks the following prayers: Direct the Appellant No. 1 to 4, Rajasthan Discoms, to make payment of the Late Payment Surcharge of INR 1,376.35 Crores outstanding as on 30.06.2022 to the Applicant in terms of Article 8.3.5 of the Power Purchase Agreement dated 28.01.2010; Direct the Appellant No. 1 to 4, Rajasthan Discoms, to make payment of the Late Payment Surcharge at the rate as per Article 8.3.5 of the Power Purchase Agreement. The application was filed on 19.07.2022 and arises out of the judgment and order dated 31.08.2020 decided by a bench of three Honourable judges., The judgment held that, with regard to interest or Late Payment Surcharge, the plea of change in law was initially raised by Adani Power Rajasthan Limited (APRL) in 2013 but the appellants, Rajasthan Discoms, did not allow the claim, depriving APRL of raising the bills from the date of change in law. The Court opined that payment of two per cent in excess of the applicable SBAR per annum with monthly rest would be on the higher side and directed that the rate of interest or Late Payment Surcharge should be at SBAR not exceeding nine per cent per annum, compounded annually, and that the additional two per cent above SBAR provided in Article 8.3.5 of the Power Purchase Agreement would not be charged. The appeals were partly allowed, and the Court expressly held that APRL was not entitled to the Late Payment Surcharge under Article 8.3.5 of the Power Purchase Agreement. The Court further directed that the appellants, Rajasthan Discoms, pay interest or Late Payment Surcharge as per applicable SBAR for the relevant years, not exceeding nine per cent per annum, and that the two per cent above SBAR would not be charged., The present Miscellaneous Application is a clear attempt to review the aforesaid judgment after a lapse of more than two years and without moving any application for condonation of delay. While my clients had moved applications for review which were dismissed by an order dated 02.03.2021, APRL did not file any review petition., The Supreme Court Rules, 2013, expressly provide in Order XLVII Rule 1 that the Court may review its judgment or order, but no application for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. The application for review shall be accompanied by a certificate of the Advocate on Record certifying that it is the first application for review and is based on the grounds admissible under the Rules. Order XLVII Rule 3 provides that, unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party, and the application shall, as far as practicable, be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed., Rule 4 of Part General of Chapter X of the Supreme Court Practice and Procedure Rules reads that no application or miscellaneous application shall be entertained where review of a judgment or order is sought and where the provisions of Order XLVII of the Rules are attracted. In such a case, an application for review shall be filed., In the celebrated judgment in Delhi Administration v. Gurdip Singh Uban and Ors. (2000) 7 SCC 296, paragraphs 17 and 18 held that applications described as applications for clarification, modification or recall of judgments or orders finally passed are, in substance, review applications and must be rejected if they are intended to bypass the circulation procedure under Order XL Rule 3. The Court may either dismiss the application straightaway with or without costs or permit withdrawal with leave to file a review application to be listed initially in Chambers., Recently, in Supertech Limited v. Emerald Court Owner Resident Welfare Association & Ors., Miscellaneous Application 1572 of 2021 in Civil Appeal No. 5041 of 2021, a bench comprising Honourable Justice D.Y. Chandrachud and Honourable Justice B.V. Nagarathna held that the attempt in the present miscellaneous application was clearly to seek a substantive modification of the judgment of this Court, which is not permissible in a miscellaneous application. The Court observed that Order LV Rule 6 of the Supreme Court Rules, 2013, which saves the inherent powers of the Court to make orders necessary for the ends of justice, cannot be inverted to bypass the provisions for review in Order XLVII. The miscellaneous application was held to be an abuse of process., The Court further emphasized that a judicial pronouncement is characterized by stability and finality and that filing miscellaneous applications to modify a final judgment has no legal foundation and must be firmly discouraged. Such applications reduce litigation to a gambit and are a preferred course for parties with resources to avoid compliance with judicial decisions. It is a settled legal principle that one cannot do indirectly what one cannot do directly., Under the circumstances, since the matter involves a substantial sum of INR 1,376.35 Crores as claimed public revenue and involves public interest, I have been instructed by Mr. Dushyant Dave, Senior Advocate, now instructed by the Appellants, to appear on their behalf. I request you to forthwith take appropriate action as follows: (a) Hold an immediate inquiry to ascertain how this Miscellaneous Application has been registered and listed before the Honourable Supreme Court of India contrary to the Supreme Court Rules and the law declared by the Court in a series of decisions; (b) Until the inquiry is made, seek appropriate directions from either the Chief Justice of India or from the Court hearing the matter not to allow further hearing in the matter., I sincerely request you to intervene forthwith in the interest of justice, particularly considering that justice must not only be done but must appear to be done, the motto that this Honourable Court has scrupulously followed. In the past, practice has been to reject such applications by the Registry straightaway without placing them before the Court, relying on the well‑considered order of the then Learned Registrar Sh. R. Subba Rao dated 19.11.1981 in Sone Lal and Ors. v. State of U.P. (1982) 2 SCC 398, wherein the Registrar declined to receive the document when the mandatory requirements of the Rules were not satisfied., It is therefore surprising that this practice is now being given a go‑by. I hereby reiterate that this letter has the stamp and complete approval of my client, Jaipur Vidyut Vitran Nigam Ltd. (JVVNL), which is a public sector undertaking under the aegis of the State of Rajasthan, acting on the directions of Mr. Dushyant Dave, Senior Advocate, who is the lead counsel in the matter., The reportable Miscellaneous Application No. 1572 of 2021 in Civil Appeal No. 5041 of 2021 filed by Supertech Limited sought modification of the judgment and order of this Court dated 31 August 2021. The reliefs sought were: (a) Modify the judgment dated 31.08.2021 to the extent that the applicant may demolish a part of Tower T‑17 as stipulated; (b) Pass an order of status quo in respect of Towers 16 and 17 in Emerald Court, Plot No. 4, Sector 93A, Noida, till final orders are passed in the present application., The Supreme Court, while affirming the judgment of the Division Bench of the Allahabad High Court, recorded several findings: (i) The land allotted to the appellant under the original lease agreement and the supplementary lease deed constitute one plot; (ii) The supplementary lease deed forms part of the original Plot No. 4 and is governed by the same terms and conditions; (iii) The sanctions given by Noida on 26 November 2009 and 2 March 2012 for the construction of Towers 16 and 17 violate the minimum distance requirement under the National Building Regulations 2006, 2010 and the National Building Code 2005; (iv) The argument that Towers 1, 16 and 17 form one cluster of buildings is contrary to the appellant’s representations to flat buyers and to the counter‑affidavit before the High Court; (v) The claim that Towers 1 and 17 are dead‑end sides is belied by the comprehensive report submitted by NBCC; (vi) Construction of Towers 16 and 17 without complying with building regulations also violated fire safety norms; (vii) The first revised plan of 29 December 2006 provided a garden area adjacent to Tower 1, which was later obliterated to make way for Towers 16 and 17, violating the Uttar Pradesh Apartments Act 2010 as consent of flat owners was not obtained; (viii) Towers 16 and 17 are not a separate Phase‑II with separate amenities; they are part of the original project, and consent of the original flat owners was required under the Uttar Pradesh Apartments Act 2010 and the Uttar Pradesh 1975 Act; (ix) The illegal construction was achieved through collusion between Noida officers and the appellant., The Court concluded that: (i) The order of the High Court for demolition of Towers 16 and 17 does not warrant interference and is affirmed; (ii) Demolition shall be carried out within three months from the date of the judgment; (iii) Demolition shall be at the appellant’s cost under the supervision of Noida officials and, if necessary, the Central Building Research Institute, Roorkee, or another expert agency; (iv) All demolition costs and incidental expenses, including expert fees, shall be borne by the appellant; (v) Within two months, the appellant shall refund to all existing flat purchasers in Towers 16 and 17, other than those already refunded, the amounts invested together with interest at twelve per cent per annum from the date of deposit until refund, as per Part H of the judgment; (vi) The appellant shall pay to the Residents’ Welfare Association costs quantified at Rs. 2 crore within one month of receipt of the judgment., Counsel Mukul Rohatgi, Senior Counsel for the applicant, submitted that the applicant does not seek a review of the judgment but a modification, arguing that the judgment found non‑compliance with minimum distance requirements and green area requirements, and that the applicant proposes to slice a portion of Tower 17 while retaining Tower 16 to meet those requirements., Counsel Jayant Bhushan, Senior Counsel for the first respondent, raised a preliminary objection to the maintainability of the miscellaneous application, relying on decisions of this Court in Delhi Administration v. Gurdip Singh Uban, Ram Chandra Singh v. Savitri Devi, and Rashid Khan Pathan v. Vijay Kurle. He submitted that the application proceeds on the misconceived basis that only two objections—minimum distance and green area—were noticed in the judgment, whereas the Court also adverted to violations of the Uttar Pradesh Apartments Act 2010 and the reduction of undivided interest of flat purchasers in common areas without consent., The counsel highlighted provisions of the Uttar Pradesh Apartments Act 2010, particularly Section 4, which requires full disclosure of plans and specifications to the intending purchaser and prohibits alterations without prior consent of the purchaser, project architect, project engineer, and the prescribed sanctioning authority. He argued that the construction of Towers 16 and 17 without such consent violates these provisions., The Court noted that the applicant’s proposal to replace the demolition direction with retention of Tower 16 and partial demolition of Tower 17 amounts to a review of the judgment, which is not permissible through a miscellaneous application., In successive decisions, this Court has held that filing applications styled as miscellaneous applications or applications for clarification or modification in the guise of a review cannot be countenanced. Justice M. Jagannadha Rao, speaking for a two‑Judge Bench in Gurdip Singh Uban, observed that such applications must first go before the learned Judges in circulation and may be dismissed without oral hearing if they are essentially review applications.
id_1252	1	In case notice is issued, the review petition will be listed for hearing after notice is served. This procedure is meant to save the time of the Supreme Court of India and to preclude frivolous review petitions being filed and heard in open court. However, with a view to avoid this procedure of no hearing, we find that sometimes applications are filed for clarification, modification or recall, not because any such clarification or modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation of the application in chambers for consideration without oral hearing. By describing an application as one for clarification or modification, though it is really one of review, a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in open court. What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then Registrar of the Supreme Court of India in Sone Lal v. State of Uttar Pradesh [(1982) 2 SCC 398] deprecating a similar practice.), We therefore agree with the learned Solicitor General that the Supreme Court of India should not permit hearing of such an application for clarification, modification or recall if the application is in substance one for review. In that event, the Court could either reject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initially in chambers., The same view has been expressed in a subsequent decision in Ram Chandra Singh, wherein another two‑Judge Bench of the Supreme Court of India observed as follows: In Gurdip Singh Uban [(2000) 7 SCC 296] the law has been laid down in the following terms: This procedure is meant to save the time of the Supreme Court of India and to preclude frivolous review petitions being filed and heard in open court. However, with a view to avoid this procedure of no hearing, we find that sometimes applications are filed for clarification, modification or recall, not because any such clarification or modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order 40 Rule 3 relating to circulation of the application in chambers for consideration without oral hearing. By describing an application as one for clarification or modification, though it is really one of review, a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in open court. What cannot be done directly cannot be permitted to be done indirectly., In Common Cause [(2004) 5 SCC 222] Justice Lahoti, speaking for a Division Bench observed: We are satisfied that the application does not seek any clarifications. It is an application seeking in substance a review of the judgment. By disguising the application as one for clarification, the attempt is to seek a hearing in open court avoiding the procedure governing the review petitions which, as per the rules of the Supreme Court of India, are to be dealt with in chambers. Such an attempt on the part of the applicant has to be deprecated., Recently in Zahira Habibullah Sheikh v. State of Gujarat [(2004) 5 SCC 353 : 2004 SCC (Cri) 1613] referring to Order 40 Rule 3, the Supreme Court of India opined: As noted by a Constitution Bench of the Supreme Court of India in P. N. Eswara Iyer v. Registrar, Supreme Court of India [(1980) 4 SCC 680], Suthendraraja v. State [(1999) 9 SCC 323 : 2000 SCC (Cri) 463], Ramdeo Chauhan v. State of Assam [(2001) 5 SCC 714 : 2001 SCC (Cri) 915] and Devender Pal Singh v. State, National Capital Territory of Delhi [(2003) 2 SCC 501 : 2003 SCC (Cri) 572], notwithstanding the wider set of grounds for review in civil proceedings, it is limited to errors apparent on the face of the record in criminal proceedings. Such applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well., In Delhi Administration v. Gurdip Singh Uban [(2000) 7 SCC 296] it was held that by describing an application as one for clarification or modification, though it is really one of review, a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in open court. What cannot be done directly cannot be permitted to be done indirectly. The Supreme Court of India should not permit hearing of such an application for clarification, modification or recall if the application is in substance a clever move for review., More recently, another two‑Judge Bench in Rashid Khan Pathan (Applicant) In Re: Vijay Kurle held as follows: In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of the Supreme Court of India by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far‑reaching adverse impact on the administration of justice. The attempt in the present miscellaneous application is clearly to seek a substantive modification of the judgment of the Supreme Court of India. Such an attempt is not permissible in a miscellaneous application. While Mr. Mukul Rohatgi, Senior Advocate, has relied upon the provisions of Order LV Rule 6 of the Supreme Court Rules 2013, what is contemplated therein is a saving of the inherent powers of the Supreme Court of India to make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the Court. Order LV Rule 6 cannot be inverted to bypass the provisions for review in Order XLVII of the Supreme Court Rules 2013. The miscellaneous application is an abuse of the process., The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather. A disturbing trend has emerged in the Supreme Court of India of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced by filing a miscellaneous application. Filing of a miscellaneous application seeking modification or clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [Quando aliquid prohibetur ex directo, prohibetur et per obliquum]., Further, there is another legal principle which is applicable in the present case. Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. Hence, when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at all and other methods of performance are necessarily forbidden. This Court has adopted this maxim. This rule provides that an expressly laid down mode of doing something necessarily implies a prohibition on doing it in any other way., For the above reasons, there is no substance in the miscellaneous application. The Miscellaneous Application is accordingly dismissed. Justice Dhananjaya Y. Chandrachud, Justice B. V. Nagarathna, New Delhi; 4 October 2021., Miscellaneous Application No. 1572/2021 in Civil Appeal No. 5041/2021 (Arising out of impugned final judgment and order dated 31‑08‑2021 in Civil Appeal No. 5041/2021 passed by the Supreme Court of India) Date: 04‑10‑2021. This petition was called on for hearing today. For Petitioners: Mr. Mukul Rohatgi, Senior Advocate; Mr. Mahesh Agarwal, Advocate; Mr. Anshuman Srivastava, Advocate; Mr. Rishabh Parikh, Advocate. For Respondents: Mr. Jayant Bhushan, Senior Advocate; Mr. Anish Agarwal, Advocate on Record; Ms. Vanshika Gupta, Advocate; Ms. Meenakshi Garg, Advocate; Mr. Ketan Paul, Advocate; Mr. Tushar Bhushan, Advocate; Mr. Amartya Bhushan, Advocate; Mr. Bhakti Vardhan Singh, Advocate on Record; Mr. Ravindra Kumar, Advocate on Record; Mr. Ravi Prakash Mehrotra, Advocate on Record; Mr. Ravindra Raizada, Senior Advocate; Mr. Rajeev Kumar Dubey, Advocate; Mr. Ashiwan Mishra, Advocate; Mr. Kamlendra Mishra, Advocate on Record; Mr. Tarun Gupta, Advocate on Record; Ms. Prachi Mishra, Advocate; Mr. Chaitanya Bansal, Advocate; Mr. Tushar Bathija, Advocate; Mr. Arjun Garg, Advocate., Upon hearing the counsel, the Supreme Court of India made the following: 1. The Miscellaneous Application is dismissed in terms of the signed order. 2. Pending applications, if any, stand disposed of. A.R.‑cum‑P.S. Court Master (Signed Reportable Order is placed on the file).
id_1254	0	(arising out of Special Leave Petition (Criminal) No. of 2023) [Diary No. 2806/2023] Permission to file the appeal by special leave without certified copy and plain copy of the impugned judgment/order is granted. Leave granted., It is submitted that co‑accused have been granted bail by the Additional Sessions Judge, Baramati, District Pune, Maharashtra vide order dated 12.11.2021., Looking at the facts and circumstances of the case, we confirm the interim order passed by the Supreme Court of India on 10.02.2023 and direct that in the event of the appellant Abhijeet Jitendra Lolage being arrested in connection with First Information Report (FIR) / Crime No. 74/2022 dated 12.11.2022 registered with Police Station Malegaon, District Nashik, Maharashtra for the offence(s) punishable under Sections 328 and 188 of the Indian Penal Code, 1860 and Sections 26(1), 26(2)(a), 27(3)(e) and 59 of the Food Safety and Standards Act, 2006, he shall be released on bail by the arresting/investigating officer or trial Court on terms and conditions to be fixed by the trial Court and also comply with the requirements/conditions stipulated under Section 438(2) of the Code of Criminal Procedure, 1973., It is deemed appropriate to impose Condition I: Abhijeet Jitendra Lolage shall undertake not to deal with Gutkha, that is, pan masala with tobacco., In case the appellant Abhijeet Jitendra Lolage violates the terms and conditions of bail, including the undertaking imposed, it would be open to the prosecution to seek cancellation of bail., It is clarified that the observations recorded herein will not be treated as findings on the merits of the case., The impugned judgment/order is set aside and the appeal is allowed in the aforesaid terms. Pending application(s), if any, shall stand disposed of., (Arising out of impugned final judgment and order dated 12-01-2023 in ABA No. 3489/2022 passed by the High Court of Judicature at Bombay) Date: 20-09-2023 This matter was called on for hearing today., For Petitioners: Mr. Yatin M. Jagtap, Advocate; Mr. Sunil Kumar Sharma, Advocate on Record. For Respondents: Mr. Abhikalp Pratap Singh, Advocate; Mr. Siddharth Dharmadhikari, Advocate; Mr. Aaditya Aniruddha Pande, Advocate on Record; Mr. Bharat Bagla, Advocate; Mr. Sourav Singh, Advocate; Ms. Yamini Singh, Advocate; Mr. Aditya Krishna, Advocate; Mr. Anoop Raj, Advocate.
id_1255	0	The appellant is aggrieved by the conviction affirmed and the sentence imposed by the Madras High Court, rejecting his plea. He is acquitted of the offence under Section 366 of the Indian Penal Code, but convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2012., The prosecution case is that T. Abdul Hameed complained that his younger daughter M, aged 17 years (running 18), had stomach ache on 13 January 2015. She was taken to hospital by her elder sister and aunt, then kidnapped near Rita School by Yuvaprakash and two others, and taken away by a two‑wheeler. A complaint was lodged under Section 366A of the Indian Penal Code. It was alleged that on 14 January 2015 the appellant and others took M to a temple at Kodumudi, where the appellant tied a thali around her neck to solemnise their marriage. After the marriage they took her to the second accused’s house where she stayed with the appellant and he repeatedly had sexual intercourse with her. It was also alleged that on 15 January 2015 the accused took M in an Omni van to Madurai, where the appellant stayed with her in his uncle’s house from 15 January 2015 to 25 January 2015 at Seelanayakanpatti, during which the appellant repeatedly had sexual intercourse with the victim., The police investigation registered a missing‑person report (Crime No. 22 of 2015). On 25 January 2015 the appellant and the other accused learned of the complaint and abandoned M, who returned to her father in Erode. Her father took her to the police station; the Investigating Officer (Witness PW‑16) recorded the victim’s statement under Section 161 of the Criminal Procedure Code and also under Section 164. She stated that she had known the accused for about a year, that both families objected, that she consumed rat poison to commit suicide and was hospitalized, that she later eloped voluntarily, that the marriage was solemnised, that they lived as a married couple, that the police later searched for her, that she learned her father had filed a complaint, and that she was never abducted nor married forcibly and married of her own wish., After M was traced, the police altered the complaint; the first‑information report now included Section 6 and Section 17 of the Protection of Children from Sexual Offences Act, Section 506 of the Indian Penal Code and Section 10 of the Child Marriage Prohibition Act, 2006. The appellant and other accused (parents and relatives A‑2 to A‑9) were charged. Key witnesses were Witness PW‑3 (the victim M), Witness PW‑4 (her sister), Witness PW‑5 (who turned hostile), Witnesses PW‑6, PW‑7 and PW‑8 (relating to a motorcycle), Witness PW‑9 (doctor), Witness PW‑11 (doctor), Witness PW‑15 (sub‑inspector) and Witness PW‑16 (Investigating Officer). The trial court held the appellant and others guilty; the appellant was sentenced inter alia under Section 6 of the Protection of Children from Sexual Offences Act to rigorous imprisonment for life., The Madras High Court, by the impugned judgment, modified the conviction. Accused A‑3, A‑4, A‑6 to A‑9 were convicted under Section 10 of the Prohibition of Child Marriage Act, 2006; the second accused (A‑2) was acquitted; the appellant’s conviction under the Protection of Children from Sexual Offences Act was confirmed but the life imprisonment was reduced to ten years of rigorous imprisonment, and he was also convicted under Section 10 of the Prohibition of Child Marriage Act. The appellant was acquitted from the charge under Section 366 of the Indian Penal Code and that sentence was set aside., Ms. E.R. Sumathy, learned counsel, submitted that the findings of the Madras High Court and the trial court are unsustainable. She relied on the victim’s statement under Section 164 of the Criminal Procedure Code indicating that she left with the appellant of her own accord and that her sister and aunt knew these facts. She pointed out that the same statement also acknowledged that M and the appellant had known and loved each other for a year. In these circumstances, when she eloped, the fact that she did not support her earlier statement to the magistrate and resiled should cast serious doubts about the prosecution’s story., Learned counsel highlighted that the trial court’s approach was erroneous because the prosecution failed to show that M was not under coercion from the appellant. Counsel argued that when the magistrate recorded the statement, M was clearly not under the appellant’s influence; the magistrate also recorded his opinion to that effect., Counsel argued that the courts below erred in not appreciating that the prosecution failed to discharge the burden of proof regarding the victim’s age. Reference was made to Section 34 of the Protection of Children from Sexual Offences Act and Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015, which state that age determination must be based on statutory criteria: first a school leaving or matriculation certificate, otherwise a birth certificate, and only in the absence of those, an ossification test. In the present case the ossification test indicated that M’s age was between 18 and 20 years, proving she was not a minor. This was deposed by Witness PW‑9 who produced the test report., The prosecution did not provide any evidence that the victim’s age was under 18. Given the totality of the circumstances and the victim’s changed version, the appellant could not have been convicted for the offences charged. It is also argued that the Madras High Court acquitted the appellant of the charge under Section 366 of the Indian Penal Code, which contradicts the prosecution’s story of kidnapping or forceful abduction., Mr. V. Krishnamurthy, learned Additional Advocate General for the State, supported the concurrent conviction and sentence, stating that even if the victim and the appellant knew each other and had feelings for each other, the victim was below the statutory age and consent is irrelevant. He submitted that the findings on the victim’s age were supported by the testimony of Witness DW‑2, the Head Mistress of the school, who stated that school records gave the date of birth as 11 July 1997., Analysis and conclusions. Section 34 of the Protection of Children from Sexual Offences Act reads as follows: 34. Procedure in case of commission of offence by child and determination of age by Special Court. (1) Where any offence under this Act is committed by a child, such child shall be dealt with under the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016). (2) If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination. (3) No order made by the Special Court shall be deemed to be invalid merely by any subsequent proof that the age of a person as determined by it under sub‑section (2) was not the correct age of that person., In view of Section 34(1) of the Protection of Children from Sexual Offences Act, Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 becomes relevant, and the provision is extracted below: 94. Presumption and determination of age. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age. (2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by a corporation or a municipal authority or a panchayat; and in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order. (3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person., It is evident from a conjoint reading of the above provisions that wherever a dispute with respect to the age of a person arises in the context of her or him being a victim under the Protection of Children from Sexual Offences Act, the courts have to take recourse to the steps indicated in Section 94 of the Juvenile Justice Act. The three documents, in order of preference, are: (i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination board, if available; (ii) the birth certificate given by a corporation, municipal authority or a panchayat; and (iii) only in the absence of (i) and (ii) the age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board., Section 94(2)(iii) clearly indicates that the school birth certificate or matriculation certificate must be preferred first; if unavailable, the birth certificate issued by the corporation or municipal authority is considered; only thereafter may an ossification test be used. In the present case, only a transfer certificate, not a school birth certificate or matriculation certificate, was considered. Exhibit C‑1, the school transfer certificate, showed the date of birth as 11 July 1997. The transfer certificate was produced by the court‑summoned witness CW‑1, not by the prosecution. The burden is always upon the prosecution to establish what it alleges; therefore, the prosecution could not rely on a document it never produced. Moreover, Witness DW‑3, the Deputy Tahsildar, stated on oath that the records for the year 1997 relating to births and deaths were missing. Consequently, the transfer certificate could not be relied upon to hold that M was below 18 years at the time of the offence., In Rishipal Singh Solanki vs. State of Uttar Pradesh & Ors., the court outlined the procedure to be followed in cases where age determination is required. The court dealt with Rule 12 of the erstwhile Juvenile Justice Rules, which is in pari materia with Section 94 of the Juvenile Justice Act, and held that the juvenility of a person in conflict with law must be decided prima facie on the basis of physical appearance or documents, if available. If documents are unavailable, the court must obtain (i) the matriculation or equivalent certificates; (ii) the date of birth certificate from the school first attended; and (iii) the birth certificate from a corporation, municipal authority or panchayat. Only when all these are unavailable may a medical opinion be sought from a duly constituted Medical Board, and even then the lower side of the age range may be considered within a margin of one year., In Sanjeev Kumar Gupta vs. State of Uttar Pradesh & Ors., the court held that Clause (i) of Section 94(2) places the school birth certificate and the matriculation or equivalent certificate in the same category. In the absence of those, category (ii) provides for obtaining the birth certificate of the corporation, municipal authority or panchayat. Only when both (i) and (ii) are unavailable is age determination by medical analysis permitted. The court noted that this represents a significant change from the earlier Rule 12(3)(a) of the 2007 Rules, where the matriculation certificate was given precedence over the school birth certificate., In Abuzar Hossain @ Gulam Hossain v. State of West Bengal, the court held that the burden of proving that a person is a juvenile (or below the prescribed age) lies upon the person claiming it, and it outlined the hierarchy of documents that would be accepted in order of preference., Reverting to the facts of this case, the headmaster of M’s school, CW‑1, was summoned by the court and produced a Transfer Certificate (Exhibit C‑1). He deposed that M had studied in the school for one year (2009‑10) and that the date of birth was based on the record sheet given by the school for the 7th standard. Witness DW‑2, Headmaster of Chinnasoalipalayam Panchayat School, also stated that M joined his school on 3 April 2002 and that her date of birth was recorded as 11 July 1997, based on a birth certificate but normally recorded from horoscope, and he had no knowledge of the basis on which the date of birth was recorded. Witness DW‑3, the Deputy Tahsildar, stated that the birth register for the year 1997 was not available in his office., It is clear that none of the documents produced during the trial satisfied the description of a school birth certificate, a matriculation or equivalent certificate, or an official birth certificate issued by a corporation, municipal authority or panchayat. Consequently, the prosecution was required to prove the victim’s age through an acceptable medical test under Section 94(2)(iii) of the Juvenile Justice Act. Witness PW‑9, Dr. Thenmozhi, Chief Civil Doctor and Radiologist at the General Hospital, Vellore, produced X‑ray reports and stated that the examination indicated the girl’s age to be more than 18 years and less than 20 years, possibly 19 years. The Madras High Court rejected this evidence, holding that when a precise date of birth is available from school records, an approximate medical estimate cannot be the determining factor. This finding is incorrect. The transfer certificate and admission register are not what Section 94(2)(i) mandates, nor do they satisfy Section 94(2)(ii) because the birth register was missing. Therefore, the only admissible evidence under Section 94 of the Juvenile Justice Act was the medical ossification test, which was provided by Witness PW‑9., The offence under Section 6 of the Protection of Children from Sexual Offences Act depends on proof that a sexual assault took place. Section 7 defines sexual assault as: “Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.” At the relevant time, Section 6 defined aggravated penetrative sexual assault as punishable with rigorous imprisonment for a term not less than ten years, which may extend to life imprisonment, and also liable to fine. Section 3 defines penetrative sexual assault as: “A person is said to commit ‘penetrative sexual assault’ if (a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child do so with him or any other person.” Section 2(a) of the Act provides that ‘aggravated penetrative sexual assault’ has the same meaning as assigned to it in Section 5. Section 5(1) defines aggravated penetrative sexual assault as penetrative sexual assault on the child more than once or repeatedly. Section 4, at the relevant time, provided that “Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term not less than seven years but which may extend to life, and shall also be liable to fine.” Section 351 of the Indian Penal Code defines assault as “Whoever makes any gesture, or any preparation intending or knowing it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault.” Section 350 of the Indian Penal Code defines criminal force as “Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.”, In her statement under Section 164 of the Criminal Procedure Code, the victim M said she was in love with the appellant, had consumed poison, was hospitalized, eloped voluntarily, married the appellant and lived as a married couple. Although she later resiled from that statement, medical evidence (Witness PW‑11, Dr. Kavitha) indicated a ruptured hymen; there was no external injury to her private parts and no evidence of sexual assault within 48 hours before the medical examination. The court opines that the prosecution was not able to establish that there was any penetrative sexual assault as a result of coercion or compulsion by the appellant. The Madras High Court recognized this while reducing the sentence, observing that the victim took poison due to love failure, the appellant married her and had sexual intercourse before and after the marriage. The definitions under the Protection of Children from Sexual Offences Act show that an offence is committed only when there is penetrative sexual assault, with or without consent of the minor victim., All the facts proved indicate M’s willingness to accompany the appellant and celebrate their marriage. However, she did not support the statement under Section 164 of the Criminal Procedure Code. The trial court observed that Witness PW‑16 produced the girl before the Judicial Magistrate Court, Erode, and she gave a voluntary statement under Section 164. No evidence was produced to show that the statement was given under compulsion. The magistrate, Witness DW‑1, affirmed the truthfulness of the victim’s statement, stating it was a true statement given willingly and not under compulsion. The prosecution did not cross‑examine this witness. Considering these factors, the court finds the statement truthful, meaning there was no penetrative sexual assault on her. Therefore, the provisions of the Protection of Children from Sexual Offences Act are not applicable. The impugned judgment set aside the charge under Section 366 of the Indian Penal Code against the appellant. The charges under Section 6 of the Protection of Children from Sexual Offences Act and Section 10 of the Prohibition of Child Marriage Act cannot be sustained; the convictions and sentences imposed are set aside., In view of the foregoing analysis and conclusions, the appellant is not guilty of the offences he was charged with; he is hereby acquitted. The impugned judgment and order are set aside; the appellant shall be set at liberty forthwith unless required in connection with any other case. The appeal is allowed, without order on costs.
id_1257	0	Leave was granted. By order passed by the High Court of Karnataka at Bengaluru in Criminal Petition No. 2585 of 2019 filed by the appellant State, an order dated 18 January 2018 passed by the Trial Court was upheld. By the aforesaid order dated 27 January 2022, an application filed by the prosecution under Section 311 of the Code of Criminal Procedure, seeking recall of M. Krishna (Witness‑189) and permission to produce the report and the certificate under Section 65B of the Indian Evidence Act, was rejected., The trial originated from serial bomb blasts that took place in Bangalore on 25 July 2008, in which one woman lost her life and several persons were injured. FIRs were registered at Madivala, Koramangala, Byatarayanapura, Kengeri, Ashokanagar, Sampangirama and Adugodi Police Stations for offences punishable under Sections 120B, 121, 121A, 123, 153A, 302, 307, 326, 337, 435, 506 and 201 of the Indian Penal Code and Sections 3 to 6 of the Explosive Substances Act, 1908, Sections 3 and 4 of the Prevention of Destruction and Loss of Property Act, 1981, Sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 and Sections 10 and 13 of the Unlawful Activities (Prevention) Act, 1967., During the investigation certain electronic devices such as one laptop, one external hard disc, three pen drives, five floppy disks, thirteen CDs, six SIM cards, three mobile phones, one memory card and two digital cameras were seized at the instance of accused number three, Sarafaraz Nawaz (also known as Seju or Hakeem). The original electronic devices were submitted before the Trial Court along with an additional charge sheet dated 09 June 2010. The Trial Court, by order dated 07 April 2017, held that the Computer Forensic Science Laboratory (CFSL) report dated 29 November 2010 concerning the electronic devices was inadmissible in evidence in the absence of a certificate under Section 65B of the Indian Evidence Act., Although the prosecution argued that the original devices were already on record as primary evidence and therefore no certificate was required, it nonetheless obtained a certificate under Section 65B of the Act as a matter of abundant caution. When M. Krishna (Witness‑189) was further examined in chief on 27 April 2017, the certificate was sought to be produced. The counsel for the accused raised an objection. By order dated 20 June 2017, the Trial Court opined that the certificate issued on 27 April 2017 was not admissible in evidence. Subsequently, an application was filed seeking to recall M. Krishna and to produce the certificate under Section 65B. The Trial Court rejected the application as delayed, and the High Court upheld that order. The present appeal challenges that order before the Supreme Court of India., Mr. Aman Panwar, Additional Advocate General, appearing for the appellant State, argued that the serial bomb blasts in Bangalore were masterminded by the accused and that the courts below should have considered the application in that light. He submitted that the prosecution was not seeking to create new evidence but merely to produce a certificate under Section 65B, while the primary evidence of the electronic devices and the CFSL report were already on record. He contended that there was no delay, noting that an application was filed on 16 December 2017 seeking to produce the certificate dated 27 April 2017. He relied on the judgments of this Court in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 5., Mr. Balaji Srinivasan, learned counsel for the respondents, submitted that there was no error in the orders of the lower courts. He argued that the prosecution could not be permitted to fill the evidentiary lacuna by filing an application under Section 311 of the Code of Criminal Procedure, noting that the certificate was sought after a delay of six years and that permitting it would cause great prejudice to the respondents and deprive them of a fair trial. He urged that the appeal be dismissed., The Supreme Court of India heard learned counsel for the parties and perused the relevant record., The facts have been briefly noted. Serial bomb blasts took place in Bangalore on 25 July 2008, shocking the city, the State and the entire country. Electronic devices seized from accused number three included one laptop, one external hard disc, three pen drives, five floppy disks, thirteen CDs, six SIM cards, three mobile phones, one memory card and two digital cameras, which were sent to the CFSL in Hyderabad. The CFSL report was received on 29 November 2010 and submitted before the Trial Court on 16 October 2012. During the recording of statement, M. Krishna, Assistant Government Examiner, Computer Forensic Division, CFSL, appeared as Witness‑189. The accused, by application dated 06 March 2017, objected to taking the CFSL report into evidence in the absence of a certificate under Section 65B. A certificate dated 27 April 2017 was subsequently issued, and an application under Section 311 was filed seeking to recall Witness‑189 and produce the certificate. The Trial Court dismissed the application, and the High Court upheld the dismissal, primarily on the ground of delay in producing the certificate., The Supreme Court, in Anvar P.V. v. P.K. Basheer, held that a certificate under Section 65B of the Indian Evidence Act is not required if an electronic record is used as primary evidence. The Court explained that while secondary electronic evidence requires compliance with Section 65B, primary electronic evidence admissible under Section 62 does not need the certificate., In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Court observed that there is a distinction between the original information contained in a computer (primary evidence) and copies made therefrom (secondary evidence). The certificate under Section 65B is unnecessary when the original electronic document itself is produced., In State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, the Supreme Court reiterated that non‑production of a certificate under Section 65B is a curable defect. The Court cited Union of India v. Ravindra V. Desai, (2018) 16 SCC 273, and Sonu v. State of Haryana, (2017) 8 SCC 570, emphasizing that the defect can be remedied at the stage of marking the document, provided the accused is not prejudiced., The Court further held, in Khotkar’s case, that the certificate under Section 65B may be produced at any stage of the trial, provided the trial is not concluded. The prosecution must supply all documents on which it relies before the commencement of the trial, but the court may allow later production after a balancing exercise to ensure no serious or irreversible prejudice to the accused., The courts below erred in concluding that there was a six‑year delay in producing the certificate. The matter was still pending when the application under Section 311 to recall Witness‑189 and produce the certificate was filed. The CFSL report dated 29 November 2010 had been placed before the Trial Court on 16 October 2012, and the original electronic devices had already been produced and marked as material objects. The certificate was obtained promptly after the accused objected to the CFSL report, and there was no undue delay., Fair trial does not mean fairness to one party alone; it requires that no guilty go scot‑free and no innocent be punished. The certificate under Section 65B is not newly created evidence but a statutory requirement to prove the report on record. Allowing the prosecution to produce the certificate at this stage will not cause irreversible prejudice to the accused, who will have full opportunity to rebut the evidence. Section 311 of the Code of Criminal Procedure is intended to serve the cause of justice and public interest., For the foregoing reasons, the appeal is allowed. The orders of the lower courts are set aside. The application filed by the prosecution under Section 311 of the Code of Criminal Procedure is allowed, and the Trial Court shall proceed with the matter further.
id_1259	0	The Supreme Court Collegium has recommended the name of Shri Vimal Kanaiyalal Vyas, Judicial Officer, for appointment as a Judge of the High Court of Gujarat. On 7 February 2023, the Chief Justice of the High Court of Gujarat in consultation with his two senior‑most colleagues made the above recommendation. Views of the Chief Minister and the Governor for the State of Gujarat on the above recommendation have not been placed in the file., On this aspect, the Department of Justice has forwarded the above recommendation by invoking paragraph 14 of the Memorandum of Procedure which provides that if the comments of the State constitutional authorities are not received within the said time frame (six weeks from the date of receipt of the proposal from the Chief Justice of the High Court), it should be presumed by the Minister of Law and Justice that the Governor and Chief Minister have nothing to add to the proposal and proceed accordingly., In order to ascertain the suitability of Shri Vimal Kanaiyalal Vyas for elevation to the High Court, we have consulted our colleagues conversant with the affairs of the High Court of Gujarat. For the purpose of assessing the merit and suitability of Shri Vimal Kanaiyalal Vyas for elevation to the High Court, we have scrutinized and evaluated the material placed on record. All the consultee‑judges have found the officer to be suitable for appointment as a judge of the High Court. The Collegium has also taken note of the report of the Judgment Assessment Committee. The Collegium has also duly noted certain adverse observations made in a report placed in the file., Bearing in mind the views of the consultee‑judges on the suitability of the candidate, the report of the Judgment Assessment Committee and the assessment made by the Government of India in the file, the Collegium is of the considered view that the officer is suitable for appointment as a judge of the High Court of Gujarat., While considering the above proposal, we have also taken note of the fact that the above proposal involves non‑recommendation of a senior judicial officer. Cogent reasons have been recorded by the High Court Collegium for not recommending his name. We are, therefore, in agreement with the High Court Collegium for overlooking him., In view of the above, the Collegium resolves to recommend that Shri Vimal Kanaiyalal Vyas, Judicial Officer, be appointed as a judge of the High Court of Gujarat.
id_126	0	Writ Petition (Civil) No. 643/2015 All India Judges Association Petitioners Versus Union of India & Ors. Respondents Special Leave Petition (Civil) Nos. 6471-6473/2020 Contempt Petition (Civil) Nos. 711/2022, 36/2023, 37/2023, 38/2023, 39/2023, 40/2023, 848/2023 in Writ Petition (Civil) No. 643/2015., Principles Evolved for Judicial Pay, Pension and Allowances. Uniformity in Designations and Service Conditions. Separation of Powers and Comparison with Political Executive. Independence of the District Judiciary is Part of the Basic Structure. Judicial Independence and Access to Justice Ensures. Equivalence of Judicial Functions of District Judiciary and Higher Courts. Orders of the Supreme Court of India on Second National Judicial Pay Commission Recommendations on Pay. Consideration of Recommendations on Pay. Redesignation of Judicial Officers in Conformity with the All India. New Pay Structure as per Pay Matrix Model. Multiplier of 2.81 and Its Uniform Application. Fitment and Migration from Master Pay Scale to Pay Matrix. Application of Recommendations from 01.01.2016. Status of Compliance of Directions in Order dated 27.07.2022. DA on basis of Rates fixed by Central Government. Grant of 1st ACP to Civil Judge (Junior Division) (Recommendation 44.15). Delay in Grant of ACP (Recommendation 44.15(ii)). Changes in Percentage of District Judges (Selection Grade) and District Judges (Super Time Scale) (Recommendation 44.16). Pay Revision to be Given to Presiding Judges of Industrial Tribunals/Labour Courts (Recommendation 44.19). Judges in Family Courts in Maharashtra (Recommendation XIV). Minimum Remuneration to Special Judicial Magistrates (Second Class) and Special Metropolitan Magistrates (Recommendation 7). Considerations of Recommendations on Pension, Gratuity etc. No Change in Percentage of Pension for Retirees On or After. Revised Pension of Retired Judicial Officers should be 50% of the. Multiplier and Fitment of Pensioners in Pay Matrix. Consequential Re‑fixation of Judicial Officers who Retired Prior to. Benefit of Years of Practice at the Bar while calculating pension. Recommendations on Family Pension (Recommendation Nos. 4.1). Recommendations on Additional Quantum of Pension/Family. Recommendations on Gratuity (Recommendation Nos. 21.1 to). Recommendations on Financial Assistance in Case of Death. Recommendations on Assistance to Pensioners. Recommendations on Abolition of New Pension Scheme., Pamidighantam Sri Narasimha, J. The District Judiciary is the backbone of the judicial system. Vital to the judicial system is the independence of the judicial officers serving in the District Judiciary. To secure their impartiality, it is important to ensure their financial security and economic independence. To this end, at the instance of the All India Judges Association, the Supreme Court of India, in 1993, found the need to state that there must be a Judicial Pay Commission, separate and independent from the Executive, in order to ensure that the system of checks and balances are in place, and the Judiciary has a say in its pay and service conditions., Pursuant to the judgment of the Supreme Court of India, the First National Judicial Pay Commission (FNJPC) was constituted by the Government of India by Resolution dated 21.03.1996. The FNJPC, headed by Justice K. Jagannatha Shetty, submitted a comprehensive report on 11.11.1999. This comprehensive report contained recommendations on pay, pension and allowances as well as other service conditions pertaining to the district judiciary. After prolonged proceedings, on 21.03.2002, the Supreme Court of India approved the recommendations of the FNJPC pertaining to emoluments with certain modifications relating to allowances. Notably, the recommendations were accepted with effect from 01.01.1996 because the employees of the Central Government were given the benefits of the Fifth Central Pay Commission from that date., Within the next few years, the Central Government appointed the Sixth Central Pay Commission, and the Commission made its recommendations which were accepted from 01.01.2006. To ensure that the District Judiciary does not lag behind, the Supreme Court of India once again stepped in at the instance of the very same All India Judges Association. The Supreme Court of India no longer should refer to the District Judiciary as subordinate judiciary. Not only is this a misnomer because the District Judge is not per se subordinate to any other person in the exercise of her jurisdiction but also is disrespectful to the constitutional position of a District Judge. Our Constitution recognizes and protects a District Judge as a vital cog in the judicial system. Respect ought to be accorded to this institution and its contribution to the country., All India Judges' Association (II) v. Union of India, (1993) 4 SCC 288. All India Judges' Association (III) v. Union of India, (2002) 4 SCC 247. A One‑Person Commission headed by Justice E. Padmanabhan (Retired Judge of the High Court of Madras) was appointed by Order dated 28.04.2009. The One‑Person Commission once again submitted a report, which was accepted by the Supreme Court of India by Order dated 20.04.2010. The revised pay scales, which are currently in force, as recommended by this Commission, were made effective from 01.01.2006., Ten years later, the Seventh Central Pay Commission submitted its report and its recommendations were accepted by the Central Government with effect from 01.01.2016. Correspondingly, in the present writ petition, once again at the instance of the All India Judges Association, the Supreme Court of India has been called upon to intervene and update/upgrade the service conditions of the judicial officers., The Supreme Court of India by the order dated 09.05.2017 in W.P. (C) No. 643/2015 appointed the Second National Judicial Pay Commission headed by Justice P. V. Reddi (Retired) as its Chairman with Senior Advocate R. Basant (Former Judge) as its Member. Pursuant to the order of this Honorable Court, the Government of India, by its Resolution dated 10.11.2017, constituted the Second National Judicial Pay Commission (SNJPC). As per the Resolution, the terms of reference of the Commission are as follows: (a) To evolve the principles which should govern the structure of pay and other emoluments of judicial officers belonging to the subordinate judiciary all over the country. (b) To examine the present structure of emoluments and conditions of service of judicial officers in the States and Union Territories taking into account the total packet of benefits available to them and make suitable recommendations including post‑retirement benefits such as pension, etc., having regard among other relevant factors, to the existing relativities in the pay structure between the officers belonging to subordinate judicial services vis‑vis other civil servants and mechanism for redressal of grievances in this regard. (c) To examine the work methods and work environment as also the variety of allowance and benefits in kind that are available to judicial officers in addition to pay and to suggest rationalisation and simplification thereof with a view to promoting efficiency in judicial administration, optimising the size of judiciary, etc., and to remove anomalies created in implementation of earlier recommendations. (d) To consider and recommend such interim relief as it considers just and proper to all categories of judicial officers of all the States/Union Territories. The interim relief, if recommended, shall have to be fully adjusted against and included in the package which may become admissible to the judicial officers on the final recommendations of the Commission. (e) To recommend the mechanism for setting up a permanent mechanism to review the pay and service conditions of members of subordinate judiciary periodically by an independent commission exclusively constituted for the purpose and the composition of such commission should reflect adequate representation on behalf of the judiciary., It is seen from the Report of the Commission that it held region‑wise consultative conferences in the cities of Guwahati, Mumbai, Kolkata, Kochi, Delhi, Chandigarh, Chennai, Lucknow, Bhopal, Visakhapatnam and Srinagar where long deliberations took place with the representatives of the All India Judges Association, All India Retired Judges Association, State Associations, officials of the Registry and deputed officers of High Courts and senior government officers. A perusal of the Report indicates that the Commission has analysed the representations from various sources and periodically consulted with several experts while preparing working sheets and calculations., After wide consultation, the Commission realised a need for interim relief to be granted to judicial officers as their pay had not been increased for more than 10 years. Thus, they submitted a Report on Interim Relief to the Supreme Court of India on 09.03.2018. Considering that the judicial officers were without updated/upgraded pay, the Supreme Court of India, by order dated 27.03.2018, directed the States and the Union of India to implement the recommendations of the Commission with regard to interim relief., Subsequently, on 29.01.2020, the Commission submitted its Final Report to the Supreme Court of India. The Report has recommendations which cover Pay Structure (Volume I), Pension and Family Pension (Volume III) and Allowances (Volume IV). A separate part of the report, Part II, deals with the issue of establishing a permanent mechanism to determine subjects of service conditions of the District Judiciary., The Supreme Court of India took cognisance of the Report on 28.02.2020. For the assistance of the Court, amici curiae were appointed. The States and the Union of India were directed to file their objections, if any, to the Report. The Court observed that over the years, the primary objection to the implementation of the various directions concerning the service conditions of the district judiciary is the alleged paucity of financial resources, and rejected this objection even before the States could raise it., The Amicus Curiae, K. Parameshwar, placed the recommendations of the Commission and its reasoning before the Supreme Court of India. Detailed notes of submissions have been filed by the amicus curiae tabulating the recommendations and supplementing the same with additional reasoning. He also detailed the objections put forward by the States and the Union and rebutted them with clarity., The Amicus Curiae also laid stress on the principles on which the recommendations of the Commission draw their strength. He broadly suggested five principles for the consideration of the Court. Firstly, he submitted that the independence of the district judiciary is part of the Basic Structure of the Constitution. He stated that the judgments of the Court, thus far, have recognised the principle of independence of the judiciary only in the context of the High Courts and the Supreme Court and submitted that this principle ought to equally apply to the District Judiciary., He then submitted that the principle of independence of the judiciary is an integral part of Part III of the Constitution, as it ensures a guarantee to a fair trial. He argued that therefore, the independence of the judiciary must be seen as a guarantee under Article 21 of the Constitution., The third principle, in his submission, was that the doctrine of inherent powers, as noticed by the Supreme Court of India in Brij Mohan Lal v. Union of India, (2012) 6 SCC 502 and suggested by the Report of the Task Force on Judicial Impact Assessment (chaired by Justice (Retd.) M. Jagannadha Rao) would require the Judiciary to compel payment of reasonable sums of money to carry out its constitutionally mandated responsibilities. To this end, he also relied on Article 50 of the Constitution which mandates that the State shall take steps to separate the judiciary from the executive in the public services of the State., He then submitted, relying on the Order dated 05.04.2023 passed by the Supreme Court of India in the review proceedings, that there is an equivalence of core judicial function between Judicial Officers in the District Judiciary and the Judges of the High Court. Therefore, he submitted that the increase in pay of the High Court judges must equally reflect in the increase of pay of judicial officers of the District Judiciary., Lastly, he submitted that in a unified judicial system, the service conditions, designations etc. must be uniform across the country. He relied on the judgment of the Supreme Court of India in All India Judges Association v. Union of India (1993) 4 SCC 288 as well as the reports of the First National Judicial Pay Commission and Second National Judicial Pay Commission to contend that the uniformity must be maintained across the country in terms of pay and designation of the District Judiciary., The Petitioners, i.e., the All India Judges Association, were represented by Gourab Banerji, Senior Advocate. He supported the Report of the Second National Judicial Pay Commission and supported the arguments made by the amicus curiae. He also brought to the attention of the Supreme Court of India a recent decision in Director, KPTCL v. C. P. Mundinamani (2023) SCC Online SC 401 to defend the recommendation of the Commission on the accrual of last increment for the purposes of pension. He also sought to support the recommendation of the Commission on additional quantum of pension to be given from the age of 75 years by contending that the same is not only reasonable but is also already given by a number of States from an even younger age. In this regard, he also submitted that the age of retirement of district judges is lower than that of High Court and Supreme Court judges and therefore, they must be entitled to retiral benefits at a younger age., The arguments on behalf of the All India Retired Judges Association were put forward by V. Giri, Senior Advocate. While supporting the contentions made by the Amicus Curiae as well as Gourab Banerji, Senior Advocate, he reiterated the need for an urgent implementation of the Report of the Second National Judicial Pay Commission, especially in respect of pension to be paid to retired officers., The counter‑arguments were led by K. M. Nataraj, the Learned Additional Solicitor General of India who appeared for the State of Uttar Pradesh. He was also supplemented by Amit Anand Tiwari, Additional Advocate General for Tamil Nadu, Ms. Pratishtha Vij, counsel for the State of Himachal Pradesh, Siddharth Dharmadhikari, counsel for the State of Maharashtra, Nachiketa Joshi, counsel for the State of Madhya Pradesh, Ajay Pal, counsel for the State of Punjab, Madhumita Bhattacharjee, counsel for the State of West Bengal, Shuvodeep Roy, counsel for the State of Assam, Shailesh Madiyal, counsel for the Union Territory of Jammu and Kashmir, Pukhrambam Ramesh Kumar, counsel for the State of Manipur, Deepanwita Priyanka, counsel appearing on behalf of the State of Gujarat, B. K. Satija, Additional Advocate General for the State of Haryana, Kuldeep Singh Parihar, counsel for the State of Uttarakhand appearing for the States., They firstly contended that the multiplier of 2.81 cannot be applied to the District Judiciary across the cadres. It is their argument that the Seventh Central Pay Commission recommended a graded pay increase across different cadres of the employees of the Central Government and therefore, the same has to be applied even for the judiciary. Thereafter, they once again argued that the States do not have sufficient financial resources to meet the increase in pay as suggested by the Second National Judicial Pay Commission. As regards the recommendation on increment to be accrued for the purposes of pension to the judicial officer in spite of her retirement, they contended that since the applicable Rules in their State do not provide for such accrual for Government Employees, the same cannot be given to judicial officers. The States also opposed the grant of retirement gratuity as suggested by the Second National Judicial Pay Commission. They argued that their State Rules which are prevalent provide for a uniform rate across cadres and services in the State and therefore, the recommendation cannot be accepted by them. Lastly, they contended that the minimum eligibility for Family Pension must be less than Rs. 30,000, as suggested by the Commission., Before considering the recommendations of the Second National Judicial Pay Commission on pay, pension, gratuity, age of retirement etc., it is necessary to consider certain principles concerning judiciary that have a direct bearing on our decision on the recommendations., The Supreme Court of India has dealt with three different Judicial Pay Commissions and has evolved certain principles, which form the underpinning of judicial pay, pension and allowances. The first principle is that a unified judiciary requires uniform designations and service conditions of judicial officers across the country. The second principle is that the independence of the judiciary requires that pay of judicial officers must be stand‑alone and not compared to that of staff of the political executive or the legislature. The third principle is that the independence of the judiciary, which includes the District Judiciary, is part of the basic structure of the Constitution. The fourth principle is that the access to an independent judiciary enforces fundamental rights guaranteed under Part III of the Constitution. The fifth principle is that the essential function of all judicial officers in the District Judiciary and judges of the High Court and this Court is essentially the same., Uniformity in Designations and Service Conditions. India has a unified judiciary under the scheme of the Constitution. A unified judiciary necessarily entails that the service conditions of judges of one state are equivalent to similar posts of judges of other states. The purpose of this constitutional scheme is to ensure that the judicial system is uniform, effective and efficient in its functioning. Efficient functioning necessarily requires judges of calibre and capacity to be provided with the right incentives and promotion opportunities to maintain the high level of functioning of the judiciary., The Supreme Court of India in All India Judges Association (II) has noted the position of law and observed that uniform designations and hierarchy, with uniform service conditions are unavoidable necessary consequences. It was held: Secondly, the judiciary in this country is a unified institution judicially though not administratively. Hence uniform designations and hierarchy, with uniform service conditions are unavoidable necessary consequences. The further directions given, therefore, should not be looked upon as an encroachment on the powers of the executive and the legislature to determine the service conditions of the judiciary. They are directions to perform the long overdue obligatory duties., Separation of Powers and Comparison with Political Executive. Separation of powers demands that the officers of the Judiciary be treated separately and distinct from the staff of the legislative and executive wings. It must be remembered the judges are not employees of the State but are holders of public office who wield sovereign judicial power. In that sense, they are only comparable to members of the legislature and ministers in the executive. Parity, thus, cannot be claimed between staff of the legislative wing and executive wing with officers of the judicial wing. The Supreme Court of India in All India Judges' Association (II) v. Union of India explained the distinction and held that those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. Thus, there cannot be any objection that judicial officers receive pay which is not at par with executive staff. In this context, it may also be remembered that Article 50 of the Constitution directs the State to take steps to separate the judiciary from the Executive., This distinction is also important because judicial independence from the executive and the legislature requires the judiciary to have a say in matters of their finances. The Supreme Court of India has previously noted that theoretically, allowing the Executive to decide the pay of the judiciary may lead to unintended consequences. Therefore, to secure true independence of the judiciary, the Supreme Court of India has recognised that the pay of judicial officers is separate and distinct from the pay of staff of other wings of the State. This, it may be noted, is nothing but an articulation of the doctrine of inherent powers. This doctrine mandates that the judiciary must possess the inherent power to compel payment of those sums of money which are reasonable and necessary to carry out its mandated responsibilities, and its powers and duties to administer justice., The submission of the States that there is a paucity of financial resources must be examined from this aspect of the matter. The States and the Union have repeatedly stated that the burden on the financial resources of the States/Union due to the Report of the Second National Judicial Pay Commission is significant and therefore the Report cannot be implemented. Without the doctrine of inherent powers, any de‑funding of the Judiciary cannot be repelled., Apart from this, Judicial Officers have been working without a pay revision for nearly 15 years. A pay revision has been recommended in accordance with the law laid down by the Supreme Court of India and a report submitted by a Judicial Pay Commission after considering this very objection. The Supreme Court of India has also examined this issue of paucity of financial resources on at least three occasions in these very proceedings. In the Order dated 28.02.2020, which took cognisance of the Report of the Second National Judicial Pay Commission, the Supreme Court of India stated that it hoped that the same objections, which have been rejected by the Supreme Court of India in All India Judges Association v. Union of India (1993) 4 SCC 288, will not be re‑agitated. The Court in the aforesaid judgment observed that compared to the other plan and non‑plan expenditures, the financial burden caused on account of the directions given therein are negligible. However, the States and the Union raised this objection in their affidavits before the Supreme Court of India., After going through the affidavits of the States and the Union, the Supreme Court of India on 27.07.2022 found that in contrast to the Seventh Central Pay Commission, which was implemented from 01.01.2016, judicial officers have not received any similar benefit. Thus, the Court held that there is a need to at least implement the revised pay structure immediately so as to alleviate the sufferings of the judicial officers., The Court, after considering the Commonwealth ex rel Carroll vs. Tate, 274 A.2d. 193, approved by the Supreme Court of India in Brij Mohan Lal v. Union of India, (2012) 6 SCC 502, rejected the objections of the Union and the State and accepted the revision of pay structure as recommended by the Second National Judicial Pay Commission. Aggrieved by the acceptance of the Report, the Union filed a review petition before the Supreme Court of India. The Supreme Court of India by Order dated 05.04.2023 dismissed the review petitions and found that the financial implications cannot be considered as excessive in view of the information given by the Second National Judicial Pay Commission., Still, the States and the Union have raised this objection after its express rejection twice over. The rejection of their objection is also reiterated. Judicial Officers cannot be left in the lurch for prolonged periods of time without a revision of pay on an alleged paucity of financial resources., The Supreme Court of India in its Review Order dated 05.04.2023 has explained this position in the following words: In view of the above discussion, the issue is whether there is any compelling need to reduce the quantum of increase proposed by applying a lower multiplier so as to marginally reduce the gap between entry level IAS officers (in Junior and Senior time scales) and Judicial Officers at the first two levels (Civil Judge, Junior and Senior Divisions). Such an exercise is not warranted for more than one reason. Firstly, the initial starting pay must be such as to offer an incentive to talented youngsters to join judicial service. Secondly, the application of a multiplier/factor less than 2.81 would result in a deviation from the principle adopted by the Second National Judicial Pay Commission that the extent of increase of pay of judicial officers must be commensurate with the increase in the pay of High Court judges. This principle has been accepted by the Supreme Court of India by approving the recommendations of the Second National Judicial Pay Commission. Therefore, there is no valid reason to depart from the principle applied by the Judicial Pay Commission that the pay of judicial officers should be higher when compared to All India Service Officers of the corresponding rank. This principle has been approved by the Supreme Court of India in All India Judges Association (2002). Thirdly, in All India Judges Association (II) v. Union of India the Supreme Court of India rejected the comparison of service conditions of the judiciary with that of the administrative executive: It is not necessary to repeat here what has been stated in the judgment under review while dealing with the same contentions raised there. We cannot however, help observing that the failure to realise the distinction between the judicial service and the other services is at the bottom of the hostility displayed by the review petitioners to the directions given in the judgment. The judicial service is not service in the sense of employment. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature., In some democracies like the USA, members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on a par with the members of the judiciary, either constitutionally or functionally., Independence of the District Judiciary is Part of the Basic Structure. The Supreme Court of India has repeatedly held that the independence of the judiciary is part of the basic structure of the Constitution. However, the pronouncements of the Court have been in the context of the High Court and the Supreme Court and not in the context of the District Judiciary. The District Judiciary performs an important role in upholding the rule of law. As noted in the Review Order dated 05.04.2023: The District Courts and courts forming a part of the district judiciary discharge a prominent role in preserving the rule of law. Public confidence in the judicial system sustains the credibility of the judiciary. The district judiciary has a significant role in generating and fostering public confidence. The standards of ethics and professionalism expected of judges are more rigorous than those applied to other services/professions. Ensuring adequate emoluments, pension and proper working conditions for the members of the district judiciary has an important bearing on the efficiency of judicial administration and the effective discharge of the unique role assigned to the judiciary., The independence of the District Judiciary must also be equally a part of the basic structure of the Constitution. Without impartial and independent judges in the District Judiciary, justice, a preambular goal, would remain illusory. The District Judiciary is, in most cases, also the Court which is most accessible to the litigant. The Amicus Curiae submitted that on a single day, the District Judiciary handled nearly 11.3 lakh cases. It was seen that during the period of the pandemic as well, the District Judiciary was yet efficient and undertook its functions to ensure that justice is delivered in a timely manner. It is thus important to recognise that the District Judiciary is a vital part of the independent judicial system, which is, in turn, part of the Basic Structure of the Constitution., Judicial Independence and Access to Justice Ensures Implementation of Part III of the Constitution. Any interpretation of Part III of the Constitution would also require that effective and speedy disposal of cases be done by an independent District Judiciary. The Supreme Court of India has repeatedly held that the right of free and fair trial forms part of Article 14 and Article 21 of the Constitution. For instance, in Anita Kushwaha v. Pushap Sudan [(2016) 8 SCC 509, para 31], the Supreme Court of India recognised that access to justice inheres in Articles 14 and 21.
id_126	1	If life implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of access to justice will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21 of the Constitution. We have, therefore, no hesitation in holding that access to justice is indeed a facet of the right to life guaranteed under Article 21 of the Constitution. We need only add that access to justice may also be a facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non‑citizens also., Absence of any adjudicatory mechanism or the inadequacy of such mechanism, needless to say, is bound to prevent those looking for enforcement of their right to equality before laws and equal protection of the laws from seeking redress and thereby negate the guarantee of equality before laws or equal protection of laws and reduce it to a mere teasing illusion., The right of fair trial and access to justice, as contemplated by the Supreme Court of India, is not limited to the physical access to a court. The right must also include all the necessary prerequisites of a court, i.e., the infrastructure, and an unbiased, impartial, and independent judge. For most litigants in this country, the only physically accessible institution for accessing justice is the District Judiciary, so the independence of the District Judiciary assumes even greater significance., The rights of access to justice and fair trial cannot be exercised by an individual without an independent judiciary. Further, without a fair and speedy trial, the remaining rights, including fundamental and constitutional rights, will not be enforced in a manner known to law. If these instrumental rights themselves are hindered, then all other rights within the Constitution would not be enforceable., The essential function of the District Judiciary, as also the function of the High Courts of India and the Supreme Court of India, is to administer justice impartially and independently. The Supreme Court of India, in its Review Order, observed that a uniform Index of Rationalisation (IoR) would not equate the district courts with constitutional courts; a uniform multiplier is used for a uniform increment in pay and not for the purpose of uniform pay in itself. All judges across the hierarchy of courts discharge the same essential function of adjudicating disputes impartially and independently., Together, the courts constitute the unified judicial system performing the core and essential function of administering justice. To be truly unified both in form and in substance, there must be integration in terms of pay, pension and other service conditions between the District Judiciary, the High Courts of India and the Supreme Court of India. Under Articles 125 and 221 of the Constitution, the salaries payable to the judges of the High Courts of India and the Supreme Court of India are fixed by law as made by Parliament. The salaries for judges of the High Courts of India are the same across the country by virtue of the High Court Judges (Salaries and Conditions of Service) Act, 1954., Given that in the hierarchy of the unified judicial system a judge of the High Court of India is placed above a District Judge, it follows that a District Judge cannot have a higher pay than a High Court judge. Therefore, the maximum ceiling of pay that a District Judge may earn is the salary of a High Court judge, which is fixed under the aforementioned statute. Once the salary of the District Judge is pegged against the High Court judge, any increase in the salary of the judges of the High Courts of India must reflect in the same proportion to the judges in the District Judiciary., In the Review Order, the Supreme Court of India observed that the legitimacy of the principle that the increase of pay of the judicial officers must be commensurate with the quantum of increase in the pay of High Court judges has been previously raised and stands judicially settled. Therefore, any objection to the IoR on the ground that it has to be lower than that adopted for increase in the pay of the judges of the High Courts of India is without cogent basis., Having considered the constitutional foundations on the basis of which the recommendations of the Supreme Court of India Judicial Pay Commission (SNJPC) are to be considered, we will now proceed to examine the recommendations with respect to pay, pension, gratuity etc., The SNJPC recommended that States and High Courts of India shall take immediate steps to redesignate the officers in conformity with the All India pattern as recommended by the National Judicial Pay Commission (FNJPC). The new pay structure shall be as per the Pay Matrix pattern on the model of the 7th Central Pay Commission, replacing the Master Pay Scale pattern, to remove anomalies, rationalise the pay structure and ensure due benefit to judicial officers of all cadres within the framework of established principles. The categorisation of judicial officers shall be based on their status in the functional hierarchy reflected in the horizontal range in Table‑I of the report. The initial pay for each rank of officer is about 2.81 times the existing entry pay of each rank, except J‑6 and J‑7, which increase in the same proportion as that of the High Court judge. The new mean pay percentage vis‑à‑vis the salary of a High Court judge shall be applied to each cadre and grade. The annual increment shall be three per cent cumulative, calculated on the previous year’s basic pay. In the Pay Matrix pattern, there shall be thirty‑seven stages instead of forty‑four. The fitment or migration of the existing officers shall be as reflected in Table II of the report. The procedure for migration or fitment of serving judicial officers and the procedure for fixation of pay on promotion shall be as explained in the report. The date of accrual of increment shall remain unchanged, with the increment occurring once a year as per the date of appointment, promotion or financial upgradation. Retiring judicial officers shall have the benefit of the increment becoming due the next day following their retirement; that increment shall be for the purposes of pension only and shall be subject to a vertical ceiling of Rs 2,24,100. The pay of judicial officers of all ranks and grades in the new pay matrix shall be effective from 1 January 2016. Arrears of pay with effect from 1 January 2016 shall be paid during the calendar year 2020, after adjusting the interim relief already paid under the interim report dated 9 March 2018. The present practice of sanction of Dearness Allowance at the rates prescribed by the Central Government from time to time shall continue. The Supreme Court of India may issue directions that the benefit of revised Dearness Allowance in conformity with the orders issued by the Central Government shall be paid to judicial officers without delay, and in any case, not later than three months from the date of issuance of the order by the Central Government. The benefit of revised rates of Dearness Allowance shall accrue from the effective date as specified in the order issued by the Central Government. The grant of the first Assured Career Progression (ACP) to Civil Judge (Junior Division) shall not be based on the existing norm of seniority‑cum‑merit; relaxed norms for assessing performance in terms of output shall be applied. If the grant of ACP is delayed beyond one year, one additional increment for each year of delay shall be granted, subject to adjustment while drawing the arrears on grant of ACP. The posts of District Judges (Selection Grade) shall be increased to thirty‑five per cent of the cadre strength, and the posts of District Judges (Super Time Scale) shall be increased to fifteen per cent of the cadre strength, effective from 1 January 2020. The upgradation benefit shall be given to District Judges by applying the principle of seniority‑cum‑merit. If a post remains or continues for three years it shall form part of cadre strength. The pay revision benefit already available to the Presiding Judges of Industrial Tribunals and Labour Courts shall be extended to them simultaneously with judicial officers of the regular cadre without administrative delays. The judges of the Family Courts in Maharashtra shall be extended the benefit of pay of District Judge (Selection Grade) and District Judge (Super Time Scale) in the same ratio as prescribed for regular District Judges. The High Court shall propose the minimum age for grant of Selection Grade, if considered necessary. The Principal Judge of the Family Court (ex‑cadre) shall be allotted quarters preferentially in the General Pool Accommodation. Special Judicial Magistrates (Second Class) and Special Metropolitan Magistrates shall receive a minimum remuneration of Rs 30,000 per month in addition to a conveyance allowance of Rs 5,000 per month with effect from 1 April 2019, and the amount shall be suitably revised every five years., This Court has subsequently passed three detailed orders dealing with the objections of the States and the Union and rejected the same. The first order, dated 27 July 2022, accepted the revision of the pay structure as recommended by the SNJPC. By order dated 18 January 2023, this Court granted additional time to some States to comply with the order dated 27 July 2022. Subsequently, some States and the Union filed review petitions against the order dated 27 July 2022. This Court dismissed the order dated 27 July 2022 in WP(C) No. 643/2015 at paragraph 17 and reviewed it on 5 April 2023. Thus, most of the recommendations of the SNJPC on the pay structure have become final., The SNJPC recommended the redesignation of judicial officers in conformity with the All India pattern. In India, the judiciary is unified; therefore, the designations of judges ought to be uniform across the country. The FNJPC suggested the following nomenclature to be adopted pan‑India: Civil Judge (Junior Division), Civil Judge (Senior Division) and District Judge. A thorough examination by the SNJPC revealed that these designations have not been adopted in a few states. For example, the State of Kerala still designates its judges as Munsiff and Subordinate Judge, and some North‑Eastern states also show divergence of designation. Uniformity would require these to be amended in order to be brought under the same umbrella. This recommendation had been accepted in the FNJPC by virtue of the judgment in All India Judges’ Association (II) v. Union of India, (1993) 4 SCC 288. The High Courts are directed to ensure that the designation of judicial officers is uniformly the same as mentioned above., It is also relevant to note that in light of the pay matrix suggested by the SNJPC, without uniform designations issues may arise in the future for fitment of the different designations used in different states. Such complications ought to be avoided by the Supreme Court of India., The SNJPC recommended that the pay matrix model, which was adopted by the 7th Central Pay Commission, be adopted for judicial officers as well. This recommendation has already been accepted by the Supreme Court of India by order dated 27 July 2022 and confirmed by order dated 5 April 2023. Accordingly, the pay structure of the judicial officers shall be modified suitably, reflecting the recommendations suggested by the SNJPC., The SNJPC suggested that the Index of Rationalisation of 2.81 be applied to all cadres of judicial officers. The objection of the States and the Union that the IoR of 2.81 was not suggested by the 7th Central Pay Commission for all cadres is erroneous because the pay of judicial officers is to be increased commensurate with the pay of the judges of the High Courts of India. When the judges of the High Courts were granted a multiplier of 2.81, the judicial officers were also to be granted the same multiplier. This precedent has been set by previous Judicial Pay Commissions and endorsed repeatedly by the Supreme Court of India. The Supreme Court of India has already rejected the objections of the States and the Union and consequently accepted the multiplier of 2.81 in orders dated 27 July 2022 and 5 April 2023. The principled basis of the acceptance is that the pay of judicial officers in the District Judiciary can only be based on the pay of judges of the High Courts of India, as the judiciary is independent from the Executive., The SNJPC did not recommend any change in the existing system of accrual of increment once a year as per the date of appointment, promotion or financial upgradation. The sole change suggested was that judicial officers should have the benefit of the increment falling due the next day following their retirement. The commission suggested that this additional increment shall be for the purposes of pension only and shall be subject to a vertical ceiling of Rs 2,24,100., An additional increment can be given to a retiring officer when he is not in service on the date of accrual because the increment is a benefit for the year of service already rendered. Therefore, the last pay, for the purposes of calculation of pension, should include the increment payable to the judicial officer. Three sets of decisions have been rendered by different High Courts on this issue. The High Courts of Madhya Pradesh, Gujarat and Allahabad held that when the increment becomes due the next day after retirement, the employee ought not to be denied the benefit of the increment for the purposes of pay. The High Courts of Madras, Orissa and Delhi held that the increment would accrue to officers only for the purpose of pension. The High Courts of Andhra Pradesh, Himachal Pradesh and Rajasthan held that the increment cannot be granted to the officers. The Supreme Court of India settled the law in Director, KPTCL v. C P Mundinamani and approved the view of the Allahabad High Court in Nand Vijay Singh v. Union of India, holding that a government servant retiring on 30 June who receives the increment the next day must not lose the significance of that increment and it must be given in accordance with the spirit of reasonableness enshrined in Article 14 of the Constitution of India., In such circumstances, the recommendation of the commission that the increment for the purposes of pension is completely justified. Consequently, the calculation of pension must notionally include the increment for the purposes of calculation of pension. The High Courts are directed to amend the applicable rule to state that the increment which becomes due to the judicial officer on the day after his retirement may be notionally included in the calculation of his pension as his last pay, subject to the vertical ceiling of Rs 2,24,100., The SNJPC recommended a formula and method to ensure that the migration from the master pay scale to the pay matrix system is smooth. The formula is: multiply the existing pay by the factor of 2.81; locate the figure in Table‑I in relation to the level applicable to the officer (J‑1, J‑2, etc.); if an identical figure is available in Table‑I at the corresponding stage, fix the new revised pay at that stage; if no identical figure is available, fix the new revised pay at the very next higher stage in that level. The commission also provided illustrations to simplify the fitment/migration formula for the relevant authorities. A corrigendum submitted by the commission in March 2021 removed certain arithmetical mistakes from the Fitment Table. A similar formula and illustrations have been devised for fixation of pay of judicial officers who were promoted on or after 1 January 2016: identify the level and basic pay in Table‑I on the date of promotion, add one increment in that level in terms of Financial Rules 22, and fix the new pay on promotion at the figure so arrived at or the next closest figure in the level. The examples must form part of the relevant rules that are required to be encoded by the High Courts, the States and the Union. The recommendation is accepted and the authorities are directed to implement it keeping in mind the examples given by the commission., The 7th Central Pay Commission came into force on 1 January 2016, whereas the last pay revision of judicial officers was effective from 1 January 2006. More than seventeen years have passed since the judicial officers received a pay revision. The Supreme Court of India has already noticed this in its order dated 27 July 2022. Earlier Judicial Pay Commissions had also recommended revision of pay with effect from 1 January 1996 and 1 January 2006 respectively. Therefore, the recommendation that the benefits of the pay structure be given effect from 1 January 2016 merits acceptance., The commission suggested that the arrears of pay be given during the calendar year 2020. The Supreme Court of India, after considering the submissions of the Union and the States that payment of arrears in one go may not be possible, directed by order dated 27 July 2022 that the payments be made in three separate installments, with the final installment payable by 30 June 2023. The States had already sought an extension of time to complete payments of the first two installments. By order dated 18 January 2023, the Supreme Court of India permitted all States and Union Territories that had made payment of only the first installment or the first two installments, as well as those that had applied for an extension of time, to make payment of arrears at least within the time indicated in that order. The States and Union Territories that had not yet made payment of the first installment were directed to make payment of the first installment by 31 March 2023, the second installment by 30 April 2023, and the third and final installment by 30 June 2023., The SNJPC recommended that Dearness Allowance be paid at the rate fixed by the Central Government. The commission found that the rates fixed by the Central Government are normally accepted by the States across the country. The purpose of Dearness Allowance, as explained by the Supreme Court of India in Bengal Chemical & Pharmaceutical Works Ltd. v. Its Workmen, (1969) 2 SCR 113, is to neutralise a portion of the increase in the cost of living. When the rates fixed by the Central Government are followed by most States, the recommendation of the SNJPC is reasonable and promotes uniformity of service conditions of judicial officers across the country. Various States such as West Bengal, Assam, Nagaland and Manipur are agreeable to rates fixed by the Central Government, while the States of Punjab, Tamil Nadu, Jharkhand and Mizoram have argued that their rates must be adopted. A uniform rate of Dearness Allowance would achieve the goals of uniformity as well as efficiency, and therefore the recommendation deserves acceptance., The commission suggested that the first Assured Career Progression be given to Civil Judges (Junior Division) on the basis of relaxed norms of performance. At present, a Civil Judge (Junior Division) is entitled to the first ACP only after completing five years of service. During the first two years the officer is normally in the process of learning the work, undergoing trainings and deputations, and therefore assessment of performance cannot be done in a serious manner. The inability of the officer to reach the prescribed targets of disposal or not satisfying the quantitative norms during the initial stage of judicial career need not be viewed seriously, especially having regard to the objective behind the ACP. Judicial officers serving in the cadre of Civil Judge (Junior Division) have only two promotional avenues available to them, namely Civil Judge (Senior Division) and District Judge. The lack of promotional avenues causes stagnation in service and loss of morale, which directly affects judicial independence. The Limited Competitive Examination, introduced by the Supreme Court of India’s judgment in All India Judges’ Association v. Union of India, applies only to the cadre of Civil Judges (Senior Division) and District Judges. The percentage reserved for the Limited Competitive Examination was initially twenty‑five per cent and was reduced to ten per cent by All India Judges’ Association v. Union of India. The Supreme Court of India, in All India Judges’ Association v. Union of India, relaxed the aforesaid conditions only for the Delhi Higher Judicial Services, permitting candidates with ten years of experience to appear for the Limited Competitive Examination for becoming District Judges. The Maharashtra Judicial Service Rules, 2008 envisage an additional method for promotion of Civil Judges (Junior Division) by conducting a separate Limited Competitive Examination for promotion to Civil Judge (Senior Division). There is no rule for the participation of Civil Judge (Junior Division) in the Limited Competitive Examination to be recruited as District Judge. The SNJPC recommended that the scrutiny for the grant of the first ACP be limited to ascertaining whether there is any poor or unsatisfactory performance or an adverse report of serious nature leading to the inference that the officer is unfit to have the benefit of the first ACP. The commission further suggested that High Courts may devise other methods for these relaxed norms. Accordingly, the grant of the first ACP to Civil Judge (Junior Division) shall be given on the basis of relaxed norms which may be devised by the High Courts, with reference to the suggestions of the commission., The commission’s report shows that in many states the grant of Assured Career Progression scale is delayed. In certain jurisdictions, even after completion of more than ten years of service, ACP was not granted to Civil Judges (Junior Division) and Civil Judges (Senior Division). This delay is unpardonable.
id_126	2	Stagnation of careers of judicial officers due to administrative delays causes loss of morale and enthusiasm in vital stages of their careers, where they are entitled to be considered for career progression. The Supreme Court National Judicial Pay Commission's finding that the lack of timely preparation and scrutiny of Annual Confidential Reports is the primary reason behind delay is concerning. Annual Confidential Reports are bound to be done in a timely manner and without delay so as to ensure that the whole judicial system is functioning efficiently. Accordingly, the High Courts may be directed to ensure that the delay in making Annual Confidential Reports is avoided in the future. Separately, to avoid this delay in the future, the Commission suggested that the process of grant of Additional Cost of Pay should be initiated three months in advance from the date on which the judicial officers will be completing five or ten years and the financial benefits should be paid to the judicial officer within a period of six months after the judicial officer steps into the sixth or eleventh year of service. Therefore, the Commission recommended that if grant of Additional Cost of Pay is delayed for every year, one additional increment shall be granted for every year of delay subject to adjustment with the Additional Cost of Pay arrears. The recommendations of the Commission are reasonable. As stated above, delays ought to be avoided on the administrative side which have the effect of stagnating the career of a judicial officer. The suggestions of the Commission will bring about much needed efficiency and perhaps a standard operating procedure for the grant of Additional Cost of Pay in a timely manner. Thus, the recommendation merits acceptance., The Supreme Court National Judicial Pay Commission has recommended an increase in the percentage of district judges who will be entitled to District Judge (Selection Grade) and District Judge (Super Time Scale). The reasoning is that due to the limited percentage of District Judge (Super Time Scale) and District Judge (Selection Grade), many judges from larger states are unable to reach higher posts before retirement even though they have spent considerable time in the District Judge cadre. It was found that as of October 2019 only 1,515 judges out of a cadre strength of 7,382 district judges were getting the benefit of Selection Grade and Super Time Scale. The benefits of Super Time Scale and Selection Grade not reaching a majority of district judges prior to their retirement is a situation that should be avoided. The recommendation that the Selection Grade and Super Time Scale posts should be increased by ten percent and five percent respectively merits acceptance. Essentially, this would entail that the District Judges at entry level shall be fifty percent, selection grade thirty‑five percent and Super Time Scale fifteen percent of the total cadre strength of District Judges. The recommendations 44.16 (ii) and (iii) regarding the upgradation to be given to District Judges by applying the principle of seniority‑cum‑merit and that if the post remains or continues for three years it shall form part of cadre strength may be considered at the appropriate stage as they do not have a bearing on the issues of pay, which are being considered by the Supreme Court of India at this stage., Although Labour Courts and Industrial Tribunals, both statutory courts created under the Industrial Disputes Act, 1947, are not presided over by judicial officers, they are entitled to equal pay as district judges based on the principle of equal pay for equal work. Following this principle, the Supreme Court of India in State of Kerala v. B. Renjith Kumar and State of Maharashtra v. Labour Law Practitioners' Association held that judicial officers of Labour Courts and Industrial Tribunals ought to be considered on par with judicial officers. The recommendation of the Tribunal that the pay revision be extended to judges of the Industrial Tribunals and Labour Courts thus merits acceptance as it is only an extension of the law laid down by the Supreme Court of India., The Commission noticed that the judges in the Family Courts in Maharashtra are recruited through a separate process and the officers form part of a separate cadre. At the same time, Rule 8 of the Judges of the Family Courts (Recruitment and Service Conditions) Maharashtra Rules, 1990 provides that the judge shall draw pay and allowances at par with the judges (Principal Judge, Additional Principal Judge and Judge respectively) of the City Civil Court, Bombay and, at other places, pay and allowances as admissible to the District Judge. The recommendation of the Commission is that the judges of the Family Court also be entitled to the benefit of Selection Grade and Super Time Scale as well. The Commission further recommends that quarters also be given to them from the general pool of accommodation. The recommendation is in line with the principles laid down by the Supreme Court of India in State of Kerala v. B. Renjith Kumar and State of Maharashtra v. Labour Law Practitioners' Association for Labour Courts. When equal work is done by the judicial officers, their pay and conditions of service must also be equal. Thus, the recommendation of the Commission is accepted., A reading of paragraph 36 of the report of the Commission shows that in some states, officials who have worked in the judiciary, retired executive officials possessing law degrees, etc., are appointed as Special Judicial Magistrates under Sections 11 and 13 of the Code of Criminal Procedure, 1973. The Commission noted that in some states they are paid very meagre remuneration and consequently has recommended a minimum pay of Rs 30,000 per month and a conveyance allowance of Rs 5,000 per month. The Commission has further recommended that this benefit shall be given from 01‑04‑2019. The amicus argued that even Rs 30,000 is insufficient today and might not meet the minimum wage requirements in certain states. Considering that under Section 261 of the Code of Criminal Procedure, 1973 such magistrates can try offences punishable with fine or imprisonment not exceeding six months, their financial independence is as much a part of judicial independence as for regular magistrates. Thus, the recommendation of the Commission is modified by fixing the remuneration at Rs 45,000 per month plus an additional sum of Rs 5,000 per month for conveyance allowance., We will now deal with the recommendations of the Supreme Court National Judicial Pay Commission on pension, gratuity and related matters. For convenience, the recommendations are set out below: No change in pension for those retiring after 01‑01‑2016 – the pension and family pension shall be fifty percent and thirty percent respectively of the last drawn pay at the time of retirement. Revised pension of retired judicial officers would be fifty percent of the last drawn pay. Formulations as given in the report to apply for pension revision: multiplier factor of 2.81 to be applicable for pension; or pensioners to be fitted appropriately in the fitment table whichever is higher. Judicial officers who retired prior to 01‑01‑2016 to be placed notionally at the corresponding stage. For judicial officers who retired prior to 01‑01‑1996, if no consequential re‑fixation has been done by the Government concerned based on the directives of the Supreme Court of India, the benefit shall be extended to them without further delay. The benefits of a number of years of practice at the bar, subject to a maximum weightage of ten years, will be given to direct recruits of the Higher Judicial Service who retired prior to 01‑01‑2016., For family pensioners, no change is suggested in the existing percentage of family pension; it shall be thirty percent of the last drawn pay at the time of retirement of the judicial officer. Family pension at thirty percent shall be paid to the eligible family member(s) as given in Rule 54 of the Central Civil Services (Pension) Rules, 1972, at par with the spouse, after the death of the spouse. The quantum of family pension shall be worked out in the same manner as the quantum of pension is worked out. The income limit, if any prescribed by any State in relation to dependent family members (other than the spouse) for being eligible to get family pension shall be not less than Rs 30,000 per month., Additional quantum of family pension on completion of age as specified in the table on page 49, Volume II, Part I, shall be available to all eligible pensioners and family pensioners from 01‑01‑2016. No recovery shall be effected from those who have availed the benefit of additional pension on completion of the age of sixty‑five or seventy years as per the extant orders of some State Governments. The State Governments may also choose to continue to extend the prevailing benefits up to the age of seventy‑five years to the retired judicial officers as well., Retirement gratuity shall be calculated as per Rule 50(1)(a) of the Central Civil Services (Pension) Rules, 1972. The maximum limit for retirement gratuity or death gratuity shall be Rs 20 lakhs, which shall be increased by twenty‑five percent whenever Dearness Allowance rises by fifty percent. These recommendations shall be effective from 01‑01‑2016. To officers who have retired after 01‑01‑2016 and paid retirement gratuity as per pre‑revised pay and the maximum limit at that time, the differential gratuity payable on account of revision of pay shall be paid subject to the revised maximum limit. The death gratuity shall be paid as per the table on page 52, Volume II, on the basis of length of service., No change in the retirement age of sixty years is recommended. The benefit of family pension as per Rule 54(3) of the Central Civil Services (Pension) Rules, as amended by notification dated 19‑09‑2019, shall be extended to the family members. Other benefits such as one‑time lump‑sum grant, compassionate appointment, permission to stay in official quarters etc., already in force in the States shall continue to apply, in addition to death gratuity., Special attention shall be given to pensioners and family pensioners by rendering assistance for processing medical bills of those who are too old, infirm, differently abled or undergoing in‑patient treatment for serious ailments. The District Judge shall nominate a nodal officer for liaison work, if required, in emergencies to facilitate admission in the hospital and prompt clearance of medical bills. A special cell entrusted with the responsibility of processing representations of pensioners and family pensioners and initiating appropriate action to redress grievances shall be created in the High Court under the supervision of an officer of the rank of Joint Registrar. A judge of the High Court shall be nominated to oversee the functioning of the special cell and issue necessary instructions. Representatives of the Retired Judges Associations shall be permitted to meet the Registrar General of the High Court at least once a year to discuss any problems. The registry of the High Courts shall compile data of the pensioners and family pensioners., The National Pension System/Defined Contributory Pension Scheme shall not be applicable to judicial officers. The Defined Benefit Pension Scheme/Old Pension Scheme shall be applicable to all judicial officers irrespective of the date of their joining the judicial service. For those who have judicial service after 01‑01‑2004, the contributions together with the returns earned thereon will be refunded to them or transferred to their General Provident Fund account. The Government shall facilitate opening of the General Provident Fund account of the new entrants to the judicial service after 01‑01‑2004 and transfer their contribution with the returns earned thereon.
id_126	3	No change in pension for those retiring after 01.01.2016; the pension or family pension shall be 50 % or 30 % of the last drawn pay at the time of retirement., Revised pension of retired judicial officers shall be 50 % of the last drawn pay., Formulations as given in the Report to apply for pension revision: multiplier factor of 2.81 shall be applicable for pension, or pensioners shall be fitted appropriately in the fitment table (Table II, paragraph 13.3, Chapter II, Volume I, page 73), whichever is read with the Corrigendum dated March., Judicial officers who retired prior to 01.01.2016 shall be placed notionally at the corresponding stage, as read with the Corrigendum dated March., For judicial officers who retired prior to 01.01.1996, if no consequential refixation has been done by the Government concerned based on the directives of the Supreme Court of India, the said benefit shall be extended to them first without further delay; directed to be implemented immediately., The benefits of a number of years of practice at the bar, subject to a maximum weightage of ten years, will be given to direct recruits of the High Judicial Service who retired prior to 01.01.2016., Family pension: no change is suggested in the existing percentage of family pension; it shall be 30 % of the last drawn pay at the time of retirement of the judicial officer. Family pension of 30 % shall be paid to eligible family members as given in Rule 54 of the Central Civil Services (Pension) Rules, 1972, at par with the spouse after the death of the spouse. The quantum of family pension shall be worked out in the same manner as the quantum of pension is worked out. The income limit, if any, prescribed by any State in relation to dependent family members (other than the spouse) for being eligible to get family pension shall not be less than Rs 30,000 per month, with liberty to States to grant a more beneficial position., Additional quantum of family pension on completion of age and at the rates specified as per the table in page 49, Volume II, Part‑I shall be available to all eligible pensioners and family pensioners with effect from 01.01.2016. No recovery shall be effected from those who have availed the benefit of additional pension on completion of the age of 65 or 70 years as per the extant orders of some of the State Governments. The State Governments may also choose to continue to extend the prevailing benefits up to the age of 75 years to the retired judicial officers as well., Retirement gratuity shall be calculated as per Rule 50(1)(a) of the Central Civil Services (Pension) Rules, 1972. The maximum limit for retirement gratuity or death gratuity shall be Rs 20 lakhs, which shall be increased by 25 % whenever Dearness Allowance rises by 50 %. These recommendations shall be effective from 01.01.2016. To officers who have retired after 01.01.2016 and paid retirement gratuity as per pre‑revised pay and the maximum limit at that time, the differential gratuity payable on account of revision of pay shall be paid subject to the revised maximum limit. The death gratuity shall be paid as per the table in page 52, Volume II on the basis of length of service., No change in retirement age of 60 years is recommended., The benefit of family pension as per Rule 54(3) of the Central Civil Services (Pension) Rules, as amended by notification dated 19.09.2019, shall be extended to the family members. Other benefits such as one‑time lump‑sum grant, compassionate appointment, permission to stay in official quarters, etc., already in force in the States shall continue to apply, in addition to death gratuity., Special attention shall be bestowed on pensioners and family pensioners who are too old, infirm, differently abled, or undergoing in‑patient treatment for serious ailments, by rendering due assistance for processing their medical bills. A District Judge shall nominate a Nodal Officer for liaison work, if required, in emergencies to facilitate admission in the hospital and to get the medical bills cleared promptly. A Special Cell entrusted with the responsibility of processing representations of pensioners and family pensioners and initiating appropriate action to redress grievances expediously shall be created in the High Court under the supervision of an officer of the rank of Joint Registrar. A Judge of the High Court shall be nominated to oversee the functioning of the Special Cell and issue necessary instructions. Representatives of the Retired Judges Associations shall be permitted to meet the Registrar General of the High Court at least once a year to discuss any problems. The Registry of the High Courts shall compile data of the pensioners and family pensioners., National Pension Scheme: The National Pension System (NPS) / Defined Contributory Pension Scheme shall not be applicable to all judicial officers; this is to be considered at a later stage. The Defined Benefit Pension Scheme / Old Pension Scheme shall be applicable to all judicial officers irrespective of the date of their joining the judicial service. For those who entered judicial service after 01.01.2004, the contributions together with the returns earned thereon will be refunded to them or transferred to their General Provident Fund (GPF) account. The Government shall facilitate opening of the GPF account of the new entrants to the judicial service after 01.01.2004 and transfer their contribution with the returns earned thereon., Ultimately, the effect of the acceptance of the recommendations of the Supreme Court of India is that necessary amendments must be carried out in the service rules of the judicial officers across all jurisdictions. It is thus directed that the High Courts and the competent authorities, wherever applicable, bring the rules in conformity with the recommendations accepted by the Supreme Court of India within a period of three months. Compliance affidavits must be placed on record by the High Courts, the States and the Union within four months., In the case of payment of arrears of pay, the Supreme Court of India had by orders dated 27.07.2022 and 18.01.2023 already directed that all arrears of pay be cleared by 30.06.2023. In this regard, it is directed that compliance affidavits must be filed by all States and Union Territories by 30.07.2023 confirming that the arrears of pay have been positively credited into the accounts of the concerned officers., The revised rates of pension, which have been approved by the Supreme Court of India, shall be payable from 01.07.2023. For the payment of arrears of pension, additional pension, gratuity and other retiral benefits, following the orders dated 27.07.2022 and 18.01.2023, it is directed that 25 % will be paid by 31.08.2023, another 25 % by 31.10.2023, and the remaining 50 % by 31.12.2023., A list shall be prepared on 17.07.2023 for further compliance on pay and pension, on which date the Supreme Court of India will take up the recommendations on allowances.
id_1261	0	Judge Shekhar B. Saraf of the Supreme Court of India presided over the matter. The petitioner is identified as AP/482/2021 and the respondent/claimant as AP/482/2021. Counsel for the petitioner included Mister Siddhartha Lahiri, Advocate; Mister Deepak K Singh, Advocate; Mister Souvik Nandy; Mister S.N. Mookherjee; Mister Samrat Sen, Senior Advocate; Mister Suman Dutt, Advocate; Mister Paritosh Sinha, Advocate; Mister Amitava Mitra, Advocate; Miss Manali Bose, Advocate; Miss Antara Choudhury, Advocate; and Mister Subhrojyoti Mookherjee. Counsel for the respondent included Mister Naman Chowdhury, Advocate. The matter was last heard in July and the judgment delivered in August., The petitioner, the Union of India through South Eastern Railways, filed an application under Section 34 of the Arbitration and Conciliation Act, 1996 seeking to set aside the arbitral award dated 10 May 2021, together with corrections dated 18 August 2021. The petitioner also filed two interlocutory applications: GA/1/2021 under Section 36 of the Act seeking a stay on the entire arbitral award pending adjudication of the Section 34 application, and GA/2/2023 seeking amendment of the pleadings and grounds in the Section 34 application. Meanwhile, the respondent, Rashmi Metaliks Limited, filed an execution application seeking enforcement of the award. Under the 2015 amendment to the Act, there is no automatic stay on the enforceability of an arbitral award upon filing of a setting‑aside application; the award debtor must obtain a separate order for a stay on execution., In this judgment, only the interlocutory application GA/1/2021 in AP/482/2021, seeking a stay on the entire arbitral award, is considered. The remaining applications, including the Section 34 petition and its amendment, will be dealt with at a later stage., The Wagon Investment Scheme policy of 2005, initiated by Indian Railways, invited independent investors to invest in rakes or wagons and transfer them to the Railways for inclusion in the common pool. The scheme promised benefits such as freight concessions and rebates, a guaranteed supply of a specified number of wagons per month, and bonus rakes., The initial agreement dated 30 May 2007 was executed between East Coast Railways (ECoR) and the respondent Rashmi Metaliks Limited, whereby the respondent agreed to procure and hand over five rakes (305 BOXN HS wagons) along with five brake vans to ECoR for merging and operation in the general pool of Indian Railways. The loading station for all rakes was Nayagarh private siding; the unloading stations were Sukinda Road for Rake 1, Nirgundi for Rakes 2 and 3, and both Sukinda Road and Nirgundi for Rake 4. These stations fell within the jurisdiction of ECoR., Under clauses 5 and 6 of the agreement, the respondent was assured of certain benefits in consideration of its investment. Ownership of the BOXN wagons was to be transferred to Indian Railways after ten years from the date of handover., The respondent delivered three of the five contractually agreed rakes to ECoR on 5 August 2008, 6 August 2008 and 9 May 2009. Construction of the private siding at Nayagarh railway station under the Khurda Road division of ECoR was delayed due to factors beyond the parties’ control, classified as force majeure events. Consequently, the contractual clause obligating the respondent to set up its railway siding became nugatory and unenforceable., After deliberation, a fresh Wagon Investment Scheme (WIS) agreement dated 15 June 2009 was entered into between Rashmi Metaliks Limited and South Eastern Railways (SER). Under this agreement, the rights, duties and obligations concerning the first two rakes came under the jurisdiction of SER. The loading stations for Rakes 1 and 2 were changed to Banspani Goods Yard, and Vizag Port and Gangavaram Port were added as unloading stations. According to the WIS policy, private siding obligations are governed by separate private siding agreements with the investors. The present arbitral proceedings arise from this agreement., The remaining two rakes of the contractually agreed five were delivered to ECoR on 16 June 2009. Consequently, jurisdiction over three rakes remained with ECoR, while jurisdiction over the two rakes transferred to SER under the agreement., The respondent alleged breach of the agreement, loss of profits, denial of contractually guaranteed benefits, and other differences. By a notice dated 4 January 2016, the respondent invoked arbitration under the agreement with SER. The arbitration was litigated before this Court, and the arbitral tribunal was appointed on 20 November 2018., A tripartite agreement dated 25 January 2018 was executed among the claimant, ECoR and SER, whereby the remaining three rakes retained by ECoR were transferred to SER with mutually agreed changes in loading and unloading stations to Barajamunda, Barbil, Nimpura, Jhargram and Gokulpur, as per the interim order of the Calcutta High Court dated 5 December 2017 (Case No. 23030 of 2017). Thus, Rakes 1 and 2 were transferred to SER on 15 June 2009, and on 25 January 2018 SER received Rakes 3, 4 and 5., The arbitration proceedings, arising from the agreement dated 15 June 2009 between the claimant and SER, resulted in an award dated 10 May 2021 granting the claimant a sum in excess of Rs 325 crore, together with costs and interest. The award was corrected on 18 August 2021 under Section 33(1)(a) of the Act, increasing the claimant’s award by an additional amount of approximately ___ crores, together with costs and interest., The petitioner, who is the award debtor, filed an application under Section 34 of the Act seeking to set aside the arbitral award dated 10 May 2021, as corrected on 18 August 2021. The petitioner also filed an application under Section 36 of the Act seeking a stay on the entire award. Meanwhile, the respondent/claimant, the award holder, initiated execution proceedings to enforce the award. The petitioner further moved an application for amendment of the grounds filed in its Section 34 petition., The counsel submitted that the arbitral award and its correction are illegal, arbitrary and contrary to the provisions of the Act, that the award is based on no evidence and violates public policy and basic notions of morality and justice, and therefore should be set aside., The counsel argued that the respondent misled the arbitral tribunal regarding the placement of indents, which is central to their case. The claimant claimed to have placed indents for obtaining rakes under the scheme, but the respondent failed to produce any copy of such indents or any receipt for the Wagon Registration Fee, which, according to Railway Board’s Rates Circular No. 14/2014 dated 16 May 2014, was increased to Rs 50,000 per rake and could not have been paid in cash., The counsel further submitted that if the indents had been placed, there would have been correspondence between the parties. The fee revision came into force on 20 May 2021. Every indent must include payment of the Wagon Registration Fee, and the absence of both indents and receipts indicates fraudulent conduct by the respondent, as without indents there was no basis for allocation of rakes under the scheme, and the respondent would not be entitled to claim loss of freight rebate or future profit., The counsel pointed out that the respondent claimed that several letters were issued to the petitioner for supply of rakes under the scheme, yet none of these letters were produced before the arbitral tribunal. Cross‑examination records show non‑disclosure of documents relating to repeated reminders and representations to the Railways for allotment of rakes., The counsel contended that the cause of action arose within the jurisdiction of the East Coast Railways at Nayagarh Private Siding, but the statement of claim was filed against a court lacking jurisdiction beyond its territorial limits. Moreover, a parallel proceeding is pending before East Coast Railways concerning the same disputes., The counsel highlighted a discrepancy in the respondent’s claimed investment: paragraph 10 of the statement of claim states an investment of Rs 75 crore for five rakes, whereas paragraph 34 asserts an investment of Rs 87.45 crore., The counsel argued that the claimed loss of revenue amounting to Rs 1,301,27,15,638 is speculative and not covered under the WIS agreement, and that the arbitral tribunal erred by not considering the counter‑claim of the actual loss of railway revenue, which forms part of the national exchequer., The counsel orally pleaded for an unconditional stay on enforcement of the award on the ground that the award was induced by fraud or corruption, alleging possible collusion between the parties during the arbitral proceedings. A letter dated 24 July 2023 (reference C375/Misc/CourtCase/Mktg/Pt) addressed to the Executive Director (Finance), Railway Board, was submitted, and the Principal Chief Commercial Manager of SER recommended disciplinary action against certain serving and retired Railway officers for lapses and negligence in the matter., Counsel S.N. Mookherjee, Advocate General for the respondent, argued that the Railways, in both of its applications, have not pleaded fraud as a ground for an unconditional stay or for setting aside the award. He emphasized that fraud must be distinctly pleaded and proved with precise details, and merely using the term ‘fraud’ is insufficient. He cited decisions such as Bishnudeo Narain v. Seogeni, Gayatri Devi v. Shashi Pal Singh, Electrosteel Castings Limited v. U.V. Asset Reconstruction Company Limited, and Chantiers de l’Atlantique S.A. v. Gaztransport & Technigaz S.A.S to support his argument that the Railways are precluded from raising fraud as a ground., He identified that the Railways have failed to produce any evidence of indents placed or receipts of the Wagon Registration Fee, and have misled the arbitral tribunal on these points. The Railways have not made any averment regarding these matters in either their Section 34 or Section 36 applications, and therefore the petitioner’s case cannot be improved at the stage of affidavit reply., Counsel relied on the arbitral award to show that the Railways were given sufficient opportunity to produce oral or documentary evidence and to cross‑examine witnesses, and therefore cannot now claim that the award was induced by fraud. He referred to the sitting of the arbitral proceedings on 5 February 2020, when the Railways informed the tribunal of their decision not to produce any witness., He further stated that the documents now sought to be relied upon by the Railways were in their possession, custody and control at all material times, and that any concealment or suppression was on the part of the Railways, which failed to produce its best evidence. Citing Elektrim v. Vivendi Universal, he argued that an award obtained by fraud requires a causal link between the concealment and the award, which the Railways have not established., Counsel placed reliance on foreign judgments such as IDDT Trucks of North America Limited v. DDT Holdings Limited, Chantiers de l’Atlantique S.A. v. Gaztransport & Technigaz S.A.S, and Westacre Investments Inc v. Jugoimpor, contending that fraud in the making of an award involves evidence that could not have been obtained with reasonable diligence during the proceedings or was newly discovered later. He argued that the absence of such evidence does not equate to fraud., Finally, counsel insisted that the petitioner should furnish security as a condition precedent to obtain a stay under Section 36 of the Arbitration and Conciliation Act, 1996, citing multiple judgments and orders of this Court and the Supreme Court that permit withdrawal of the deposited sum upon furnishing a counter‑guarantee., In the arbitral proceedings, the claimant filed claims under seven heads for a total of ___, and the petitioner submitted a counter‑claim of Rs 148,69,31,950 for revenue loss incurred from 2009 to 2017. The award bifurcated the claims into two compartments: the first set arising from the 15 June 2009 agreement for the first two rakes, and the second set from the supplementary agreement dated 25 January 2018 for the third, fourth and fifth rakes. Accordingly, the claims pertain to the periods 15 June 2009 to 14 June 2019 for the first two rakes, 25 January 2018 to 24 May 2019 for the third rake, and 25 January 2018 to 15 June 2020 for the fourth and fifth rakes. The Railways’ counter‑claims were rejected, and the arbitral tribunal rejected four of the seven claims of the claimant, awarding relief on three heads: (a) Claim A – loss on contractual freight rebate, Rs 21,65,75,000; (b) Claim B – interest on loss, amount awarded; (c) Claim E – profit that could have been earned, Rs 1,264,___ awarded., The Court may, under Section 36, grant a stay on the operation of an arbitral award if it is satisfied that a prima facie case exists that the arbitration agreement or the making of the award was induced or effected by fraud or corruption. In such a case, the award shall be stayed unconditionally pending disposal of the challenge under Section 34., Having examined the arbitral award dated 10 May 2021, I observed several irregularities and improprieties in the Railways’ conduct, including a clear reluctance to present any evidence or witnesses, inadequate cross‑examination of the claimant’s witnesses, and failure to submit documentary evidence., The claimant presented three witnesses: Mister Biswanath Sharma, Deputy General Manager (Technical and Operations) of the claimant (Witness 1); Mister Basudev Banerjee, General Manager (Raw Materials) of the claimant (Witness 2); and Mister Vivek Gupta, Chartered Accountant, Associate Director of Transaction Services (Witness 3). The respondent produced no witness. Witness 1 testified that railway operations of the claimant were handled by him and his team, and presented a tabulation of instances where Railways issued rakes, calculating potential losses due to reduced allotment. Witness 3 prepared an independent analysis based on averages to highlight potential losses and interest costs. The SER failed to present any evidence or witness to contradict the claimant’s calculations, leading the tribunal to infer against the Railways., At paragraph 28 of the award, the tribunal noted that the respondent did not produce any witness, and in the 18th sitting on 5 February 2020, the respondent confirmed it would not produce any witness in support of its counter‑claims. Paragraph 69 referred to exhibits for Rakes 1 and 2 and for Rakes 3, 4 and 5, prepared by Witness 2, who claimed to have used a register maintained by the claimant. The tribunal accepted these exhibits despite the Railways possessing the original railway receipts and failing to use them to challenge the claimant’s figures. Paragraphs 70, 72‑74 highlighted the Railways’ failure to discharge its onus to dispute the procedure for placement of indents and the authenticity of the data, and its failure to suggest an alternative mechanism for indent placement. Paragraph 78 observed that the Railways could have demonstrated the claimant’s evidence was incorrect by presenting its own witness, but chose not to do so. Paragraph 88 noted that the respondent did not attempt to challenge the methodology employed by Witness 3., Under Claim A, concerning loss on contractual freight rebate due to non‑receipt of rakes under the WIS from South Eastern Railways, the tribunal noted that Witness 3 provided a succinct and scientific basis for computing the loss and damage suffered by the claimant.
id_1261	1	And, on the same page itself, the tribunal pointed out that the Railways, during cross‑examination of CW3, did not suggest that the method employed by the claimant was untenable or that it did not depict a reasonable mode of computation of the loss incurred towards freight rebate. Not only the data and figures presented by the claimant were not challenged but the Railways took no initiative to indicate any alternative mechanism of calculation or to denote fallacy in the claimant's methodology., Under the heading Claim B Interest amount lost due to non‑receipt of the contractual freight rebate, on page 73 of the arbitral award, the tribunal noted that there was little or no cross‑examination by the Railways to the methodology employed by the claimant in quantifying its Claim B. By virtue of this, the Railways also ceded to a percent rate of interest, which the arbitral tribunal then on its own accord decreased to a more reasonable 12 percent., Likewise, on page 79 of the arbitral award, the arbitral tribunal stated that the copies of the relevant figures with regard to Claim B were provided at the hearing to the Railways and an opportunity was given to file their response to these documents. The Railways chose not to file its response and thus the arbitral tribunal accepted the figure provided therein., Under the heading Claim E Profit which the claimant could have earned if the claimant had received all WIS rakes for which it was eligible, page 97 of the arbitral award, the tribunal noted that certain figures which were assessed and presented by CW3 to show the average capacity of a rake, its usual profit margin and estimated amount of profit. The Railways not only did not cross‑examine him with respect to the veracity of those figures but also failed to call into question and contradict his assessment and assumption in this regard or to suggest that the figures are not reasonable., At paragraph 94 of the arbitral award, the arbitral tribunal recorded that the Railways could have led evidence through officers who were involved in the matter or who were aware of the prevalent practice of placement of indents. However, it declined to present any witness in favor of its counterclaims, at its own peril. In fact, the Railways did not think the necessity to prove its counterclaim which remained unproven and unsubstantiated, a bare tabulation in its pleadings and the same was wholly and absolutely without any evidence. Additionally, the Railways failed to point out any discrepancy in respect of the statement of costs furnished by the claimant., In the Correction to the Arbitral Award dated May 10, 2021, a comprehensive perusal of the correction order passed by the arbitral tribunal on August 18, 2021 raises several pertinent questions as to the conduct of proceedings and operation of the tribunal. Paragraphs 22 and 23 of the correction order explain how a typographical error occurred on page 100 of the arbitral award (referring to paragraph 91 where each claim was considered by the tribunal; while tabulating Claim E, the loss on account of potential future profits was computed to be Rs. ___ but was mentioned as Rs. 48,72,93,750 in sub‑paragraph (e) under Claim E). For the sake of convenience, all reference to the correction order should be understood as reference to the corrections order dated August 18, 2021 of the arbitral award, and all reference to the arbitral award should be understood as reference to the arbitral award dated May 10, 2021. This figure was arithmetically computed as Rs. 1,264,11,62,040 on page 101 of the arbitral award, and as per paragraph 22 of the corrections order, the said figure should read as Rs. 1,264,07,18,792., However, it must be noted that paragraph 92 of the arbitral award, where the actual calculation for the entire award in tabular format is provided, the correct amount of Rs. 1,264,0 (instead of the amount as per paragraph 28 of the corrections order) has been used for loss on account of potential future profits, and there is absolutely no adverse consequence of the figure appearing on page 101 on the calculation made by the arbitral tribunal for Claim E., On paragraph 32 of the correction order, it has been indicated by the arbitral tribunal that the concluding part of paragraph 92 of the arbitral award, which awards the claimant a reasonable estimate of Rs. ___ from the total calculated sum for all the awarded claims amounting to Rs. ___ as per the tabulation in paragraph 92 of the arbitral award, has been inserted incorrectly due to a technical glitch or typographical error and was instead supposed to be a part of Claim as a concluding sentence to sub‑paragraph (d) on page 97 of the arbitral award with the figure Rs. ___ instead of Rs. ___. This figure was arithmetically computed as Rs. 1,301,31,58,866 in the arbitral award, and as per paragraph 29 of the corrections order, the said figure should read as Rs. 1,301,27,15,638., The arbitral tribunal claimed that the figure of Rs. ___ is a result of a typographical error and bears no correlation or nexus to the figure of Rs. ___. It must be noted that Rs. ___ is approximately 25 % of Rs. ___ and it is perverse logic to believe that it is a result of typographical error having no connection to the figure Rs. ___. In arguendo, even if the arbitral tribunal's assertion regarding the typographical error is accepted, then Claim E of the claimant, sub‑paragraph (d) on page 97 of the arbitral award would read as follows: 'The claimant has estimated that it has lost revenue to the tune of Rs. 1,671,85,44,960 by reason of being precluded from availing benefits under the WIS.' However, we hold that the said amount was calculated to be 25 % of the total awarded amount, further strengthened by the fact that 25 % of the original figure in the arbitral award, which is Rs. 1,301,31,58,866, comes out to be Rs. ___, a difference of Rs. 4.5 only from the one present in the arbitral award., The reasonable estimate on account of profit which the claimant could have earned if the claimant had received all WIS rakes for which it was eligible would be Rupees twelve hundred sixty‑four crores seven lakhs eighteen thousand seven hundred and ninety‑two only, owing to non‑cooperation of the South Eastern Railways. This indicates that the arbitral tribunal assessed the claim before referring to its own tabulation for calculation of total estimated profit. Then, as per the tribunal, immediately after the aforesaid tabulation in Table 3 under Claim E of the claimant, sub‑paragraph (e) on page 101 of the arbitral award would read as follows: 'We accordingly award a sum of Rs. 1,264,07,18,792 in favour of the claimant under head (E) of the claim.', In my view, the purported correction appears to be an afterthought and not a genuine typographical error, as it is a correction due to typographic error to Rs. 1,264,07,18,792 instead of Rs. ___. The arbitral tribunal intended to add the underlined bracketed paragraph here, but due to an alleged technical glitch this was instead made a part of the concluding portion of paragraph 92 of the arbitral award. It is seemingly difficult or rather impossible for the Supreme Court of India to accept that both the placement of the paragraph as well as the amount mentioned, which on calculation is approximately 25 % of the total computed claims awarded to the claimant, were changed in the essential parts of the award owing to a technical glitch or typographical error., Further, paragraph 92 as part of the arbitral award reads with logical consistency and analytical coherence wherein a sum of Rs. ___ was computed to be the total computed losses of the claimant on account of potential future profits and of that a reasonable amount was awarded to the claimant., The assertion of the arbitral tribunal that the figure of Rs. ___ came into existence out of a random typographical error bearing no correlation to the figure of Rs. ___, yet coming up to be exactly 25 % of the latter, is a difficult pill to swallow and indicates foul play and collusion under the garb of a quasi‑judicial proceeding., At the very outset, I attach a caveat herein. Throughout the course of the hearing, by way of oral and written pleadings, both sides have relied on multiple judicial precedents of the Supreme Court and High Courts in India as well as of foreign courts to buttress their respective submissions. I would like to place reliance upon the case law of Leathem reported wherein the UK House of Lords observed that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other principle is that a case is only an authority for what it actually decides. Keeping in mind the principles delineated in L.C. Quinn (supra), I am of the view that certain judgments are not relevant in the first place or are merely repetitive in their exposition of the same principles or are distinguishable on facts. While having regard to the principles laid down in all these judgments, I have mentioned those principles which are germane to the issue in hand and have avoided unnecessary reiteration of judgments to avoid jeopardising the brevity and lucidity of this decision., Coming to the instant case at hand, the Supreme Court of India considers it prudent to discuss fraud and corruption first since they are the only two grounds outlined in the Arbitration and Conciliation Act on which the Court may grant an unconditional stay on the arbitral award. The Oxford English Dictionary defines fraud as: (1) criminal deception; the use of false misrepresentations to gain an unjust advantage; (2) a dishonest article or trick; (3) a person or thing not fulfilling what is claimed or expected of him, her, or it. From a legal standpoint, Black's Law Dictionary (9th edition) defines fraud as a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is usually a tort, but in some cases, when the conduct is willful, it may be a crime, also termed intentional fraud. The Honorable Supreme Court in S.P. Chengalvaraya Naidu Jagannath (Dead) by LRs and other reported cases gave the definition of fraud as an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is cheating intended to get an advantage., Referring to Kerr on Fraud, the Honorable Supreme Court, while dealing with the challenge to an arbitral award on the grounds of fraud in Venture Global Engg. LLC v. Tech Mahindra Ltd., further deliberated on the meaning of fraud as follows: While dealing with the question as to what constitutes fraud, the learned author said, 'What amounts to fraud has been settled by the decision of the House of Lords in Derry v. Peek where Lord Herschell said: fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.' (See Kerr on Fraud and Mistake, 7th Ed., pp. 10). The author has said that Courts of Equity have from a very early period had jurisdiction to set aside awards on the ground of fraud, except where it is excluded by the statute. Likewise, if the award was obtained by fraud or concealment of material circumstances on the part of one of the parties so as to mislead the arbitrator, or if either party is guilty of fraudulent concealment of matters which he ought to have declared, or if he willfully misleads or deceives the arbitrator, such award may be set aside. (See Kerr on Fraud and Mistake, 7th Ed., pp. 424). The author said that if a person makes a representation in point of fact, whether by suppressing the truth or suggesting what is false, however innocent his motive may have been, he is equally responsible in a civil proceeding as if he had committed these acts with a view to injure others or to benefit himself. It matters not that there was no intention to cheat or injure the person to whom the statement was made. (See Kerr on Fraud and Mistake, 7th Ed., p. 7)., Corruption, while difficult to define, is described by the Oxford and Merriam‑Webster dictionaries as dishonest or fraudulent conduct by those in power and dishonest or illegal behavior especially by powerful people, respectively. Furthermore, Rollin M. Perkins and Ronald N. Boyce in Criminal Law, 3rd Ed., define corruption as the word indicating impurity or debasement and, when found in criminal law, it means depravity or gross impropriety. The observations elaborated above indicate two separate situations of collusion and foul play and, in the view of the Supreme Court of India, prima facie seem to be a direct consequence of fraud and/or corruption in the making of the arbitral award., Firstly, in the arbitral proceedings, the absolutely appalling conduct of the South Eastern Railways defending claims upwards of Rs. 4,000 crores is noted. Not only did the Railways not produce any witness of its own but also failed to present any documentary evidence to contradict the arguments put forth by the claimant. The ludicrous cross‑examination of claimant witnesses screams of surreptitious connivance between the parties, wherein it had already been decided that the Railways must abandon all its leverage in favour of the other side and superficially continue to fight an already lost battle under the aegis of incapable generals coupled with unguarded defenses., Secondly, the atrocious explanation given by the arbitral tribunal in justifying its order of corrections has left me at a loss of words. The order made me wonder if the tribunal thinks so lowly of the executing courts that it may have hoped such corrections would be permitted safe passage without any scrutiny whatsoever. Moving forward, the right of a party to seek recourse against an arbitral award on grounds of fraud or corruption is provided under Section 34(2)(b) of the Arbitration and Conciliation Act, which provides for setting aside an award that is in conflict with the public policy of India. Explanation 1(i) to the aforesaid section clarifies the ambit of public policy in India and explicitly allows challenge to an arbitral award if the making of such an award was induced or affected by fraud or corruption. The amendment to the Arbitration and Conciliation Act, 1996 by way of Act 3 of 2021 permits this, provided a Section 34 challenge to the arbitral award is pending, to grant an unconditional stay on an application under Section 36 if the Supreme Court of India is prima facie satisfied that the making of the arbitral award has been induced or affected by fraud or corruption., The arbitral award has been induced or affected by fraud or corruption. The object of this amendment is further made clear by point 4 of the Statement of Objects and Reasons to Act 3 of 2021 (Bill No. 16 of 2021), which is to address the issue of corrupt practices in securing contracts or arbitral awards. A need was felt to ensure that all stakeholder parties get an opportunity to seek unconditional stay of enforcement of arbitral awards where the underlying arbitration agreement or contract or making of the arbitral award is induced by fraud or corruption. Thus, I am of the view that if the Supreme Court of India, even suo motu, upon prima facie observing that the making of an arbitral award has been induced or affected by fraud or corruption, can grant an unconditional stay on the arbitral award. The relevant part of the amended section is reproduced below: Enforcement. Upon filing of an application under subsection (2) for stay of the operation of the arbitral award, the Supreme Court of India may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing: Provided further that where the Court is satisfied that a prima facie case is made out that the arbitration agreement or contract which is the basis of the award, or the making of the award, was induced or effected by fraud or corruption, it shall stay the award unconditionally pending disposal of the challenge under Section 34 of the Act., It must be noted that Parliament, in its wisdom, has deemed it appropriate for the Supreme Court of India to exercise discretion to grant a stay on an arbitral award when such an award is either induced or effected by fraud or corruption. The only prerequisite in the exercise of such discretion is that the Court must be satisfied that a prima facie case is made out. On a bare reading of the aforesaid provision, the Supreme Court of India is of the view that the conduct of the parties during the arbitral proceedings qualifies as a consideration under the proviso to Section 36(3) of the Act, as it is not only indispensable in the making of the award but also materially induces the making of the award. Therefore, to arrive at a finding that the making of the award is induced or effected by fraud or corruption, the Supreme Court of India can look at the conduct of the parties during the arbitral proceedings., In the present case, with respect to the conduct of the parties, the Supreme Court of India observes a disconcerting trend where the hallowed principles of honesty, integrity and probity seem to have gone up in smoke. The Supreme Court of India observes that the Railways, in defending a claim valued above Rs. 4,000 crores, declined to present any witness and refrained from leading any evidence. Subsequently, in the arbitral proceedings, the lackadaisical and indifferent attitude of the Railways during the cross‑examination of claimant witnesses, as noted in the arbitral award, leaves much to be said about the sordid state of affairs and the absolute apathetic approach of the Railways, which is a Government of India public sector undertaking dealing with funds of the public exchequer., Such extraordinary misconduct of the Railways during the arbitral proceedings raises several suspicions in the eyes of the Supreme Court of India. The Supreme Court of India re‑emphasises that dishonesty is the cornerstone for fraud and that the Railways' reluctance in leading evidence, inept cross‑examination, non‑submission of documentary evidence, etc., does not fall short of actual and deliberate fraud and/or corruption which may have taken place in the present case. The magnitude of the claim and the consequent irreparable harm to the Railways and the public exchequer cannot be ignored. There seem to be extraneous considerations at play which are beyond the comprehension of the Supreme Court of India., Similarly, the ridiculous explanation provided by the arbitral tribunal in the corrections award in enhancing the award amount by four times under the garb of a typographical error and/or technical glitch is a bitter pill to swallow for the Supreme Court of India, and the actual truth behind these purported corrections must be unearthed. As noted by the Honorable Supreme Court in A.V. Papayya Sastry & Ors., fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another., In the proceedings before the tribunal, for both the arbitral award as well as the corrections order, the willing silence of the petitioner is too loud to be neglected and prima facie leads to the conclusion that there is unseen foul play wherein collusion between the parties to the proceedings has led the arbitral tribunal to pass an award which is deeply induced and effected either by fraud or corruption or both. In the leading case of Lazarus Estates Ltd. v. Beasley reported (1956) 1 All ER 341, Lord Denning observed, 'No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.' Further, in A.V. Papayya Sastry (supra), the Honorable Supreme Court noted, 'Now, it is a well‑settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law.', It is thus a settled proposition of law that a judgment, decree or order obtained by fraud on the Court, tribunal or authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as a nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings., In the case of Sepco Electric Power Construction Corporation v. Power Mech Projects Ltd., reported in the Honorable Supreme Court, it was affirmed that the Supreme Court of India is well within its right to grant an unconditional stay while exercising its power under Section 36(3) of the Act, provided that the Court is satisfied that a prima facie case is made out wherein the arbitration agreement or contract which is the basis of the award, or the making of the award, is induced or effected by fraud or corruption., The Supreme Court of India cannot overlook fraud being perpetuated in the making of the award by way of collusion between the parties. In any event, as at this juncture the Supreme Court of India is not coming to any conclusion on setting aside the arbitral award, the case laws cited by the learned Advocate General can be comprehensively considered by the Court at the stage of adjudicating the Section 34 application., Before I proceed towards the concluding part of this judgment, I would like to briefly trace the purpose of arbitration law. Arbitration was initially envisaged as a means to reduce litigation and promote faster resolution of disputes and, over time, due to active involvement of the courts and cooperation of the parties alike, arbitration culture has been thriving in India. As judges, we are expected to deal with each matter on its own merits, and judgments are pronouncements on the merits of the case at hand rather than an occasion to make general comments or observations., However, in dealing with the present case, I have been plagued by a deep worry resulting from the Railways' conduct in the present matter, which I would like to put forward. Not to mince my words, the attitude of some of the parties, especially public sector companies, towards the arbitration process and utter disregard for it has made me doubt the future of arbitration in India if it continues in the present way. Usually, much more due diligence is expected from public sector companies given that they are the embodiment of taxpayers' trust, but the way the Railways has belittled its responsibility in the present case makes the Supreme Court of India seriously doubt the utility of arbitration with respect to public sector companies., Arbitration as an alternative dispute resolution mechanism holds great significance towards economic development, and arbitration proceedings must be regarded as sacred as a court proceeding and the parties' conduct in front of an arbitration tribunal or the court must be the same. Rather than seeing arbitration as a protective umbrella that saves parties from spending extra time, money and effort required in litigation, many cases it has now become a well‑oiled tool to perpetuate fraud and/or corruption in the hope that the courts might overlook it. When the parties involved themselves work towards diluting the essence behind arbitration and defeat the very purpose for which it exists, it really brings forth doubts in the mind of the Supreme Court of India regarding the efficacy of arbitration as an alternative dispute resolution mechanism., Even if only one party acts against the spirit of arbitration, its effect is not only limited to itself but also affects the sanctity and integrity of the entire arbitration culture. Therefore, when either of the parties disrespect the sanctities of the arbitration process and seek to hide under the cloak of the same to effectuate fraud and/or corruption, the process works against the foundational principles of arbitration., In my view, the Railways as an entity does not just carry citizens across destinations, but it is the embodiment of the hopes and dreams of a billion people, and its conduct is more than just a ripple in the ocean. It should realise the need to conduct itself according to the highest standards and not resort to dubious ways in any form that does not suit its character. When it comes to the facts of the present case, the manner in which the Railways has conducted itself in the arbitral proceedings is truly unjustifiable, and the Supreme Court of India strongly condemns it.
id_1261	2	For the reasons discussed above, using the power conferred under Section 36(3) of the Arbitration and Conciliation Act, 1996, as amended by Act 3 of 2021, the Supreme Court of India grants an unconditional stay on the operation of the Arbitral Award dated May 10, 2021 read with the corrections order dated August 18, pending disposal of the challenge under Section 34 of the Arbitration and Conciliation Act, 1996., Furthermore, I hereby also direct the Ministry of Finance, Union of India to immediately constitute a multi‑member high‑level enquiry committee headed by a Secretary to the Government of India‑level rank officer to holistically inquire into the shocking conduct of the Railways and its officials, both serving and retired, and the other stakeholders in the aforementioned matter. The Committee shall be at liberty to take assistance of central investigation agencies as it may deem fit. The Committee is further requested to complete the enquiry and submit a report before the Supreme Court of India within three months from the date of this order., The Registry, Original Side is directed to inform the learned Additional Solicitor General, High Court at Calcutta of this order for immediate communication to the Ministry of Finance, Government of India., Epilogue: As the custodian of the Constitution, it is the duty of the Supreme Court of India to speak when necessary, as it is on this very occasion. Corruption and double‑dealing by public officials is not just a legal offence; it is a moral offence, and it betrays the very spirit and soul of the Indian Constitution., Officials in public service are expected to serve others rather than self‑serve, a principle which, in the present case, was seen to have been thrown out of the window. Every person in public service carries the responsibility of bearing the weight of the hope and aspiration of each and every citizen of this country and is duty‑bound to work towards fulfilling the dreams of our founding fathers. A path of self‑service should be embraced; one should stop and think that his actions can shake the very bond that exists between citizenry and bureaucracy., In fact, this bond is as essential to the working of the Indian State as water is to fish, and if that bond is put in peril, it can lead to disastrous consequences. While the goal of a private entity can be personal profit, a public servant works towards public prosperity, and he should treat this as a sacred oath. Every action and step that a public servant takes should be done while keeping in mind the Constitution as his guide and the citizens as his motivation., The Supreme Court of India would not have spoken today if it was not an absolute necessity, but such actions disturb the very fabric of citizens' trust in public entities, and it is a duty that the Supreme Court of India owes to the citizens to act where needed., Accordingly, GA/1/2021 is allowed and disposed of. There shall be no order as to costs. The parties are granted liberty to mention AP/482/2021 and, along with any interlocutory applications, seek inclusion in the list after a period of three months. There shall be no order as to costs., The Supreme Court of India acknowledges the diligence and eloquence of counsel for both sides in rendering assistance to the Supreme Court of India and further places on record its deep appreciation for the valuable insights and painstaking research rendered by law clerk cum research assistant Mr. Anirudh Goyal and intern Mr. Jaspreet Singh in this matter., Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities. (Shekhar B. Saraf, J.)
id_1265	0	Doctor P. Muneeswari, Petitioner versus the Secretary to Government, Adi Dravidar and Tribal Welfare Department, Secretariat, Chennai; the District Collector, Ramanathapuram District; the Revenue Divisional Officer, Ramanathapuram District; and the Tahsildar, Kamudhi Taluk, Ramanathapuram District, Respondents., Petition under Article 226 of the Constitution of India seeking issuance of a writ of Certiorari to call for the records pertaining to the impugned order dated 13 November 2013 passed by the second respondent in his proceedings in Nagar Kacheri No. 3/27556/2011 and to quash the same., For the Petitioner: Mister C. Mayil Vahana Rajendran. For the Respondents: Mister P. Thilak Kumar, Additional Government Pleader., Order of the Madras High Court was made by the Honorable Chief Justice., Though the respondents seek to assert that the matter would be governed by a 2015 notification that provides for an appeal, it is evident that the present matter of cancellation of the community certificate issued to the petitioner is covered by Government Order (2D) No.108 dated 12 September 2007., Paragraph 3 of the notification provides that if there is any cancellation of any community certificate at the behest of the vigilance or the scrutiny committee created under such notification, then the appropriate remedy would be to initiate proceedings under Article 226 of the Constitution before the Madras High Court., In such view of the matter, the assertion by the official respondents cannot be accepted., There is no doubt that the petitioner in this case was granted a community certificate as belonging to the Hindu Pallan community. There is no dispute that the petitioner was born to Hindu Pallan parents. However, merely because the petitioner married a Christian and the petitioner's children have been recognised as members of the community to which the petitioner's husband belongs, the community certificate issued in favour of the petitioner has been cancelled., In the counter‑affidavit filed by the respondents, some specious excuses have been proffered which cannot be accepted. According to such affidavit, officials visited the clinic of the petitioner, since the petitioner is a doctor. The officials apparently found a cross hanging on the wall and on the basis of such cross, the officials conjectured that the petitioner had converted to Christianity and was, thus, disqualified from retaining the Hindu Pallan community certificate., There is no suggestion in the affidavit that the petitioner has abandoned her faith or that she has embraced Christianity. It is equally possible that the petitioner, as a part of a family, may accompany her husband and children for Sunday matins but the mere fact that a person goes to church does not mean that such person has altogether abandoned the original faith to which she was born., The acts and conduct of the respondents portray a degree of narrow‑mindedness that the Constitution does not encourage. Nothing may be presumed upon a member of a particular community respecting another community or another religion; indeed, that is the constitutional mandate., Since the action taken by the respondent authorities appears to be arbitrary and based on surmises and conjectures without any material fact in support thereof, the impugned order dated 13 November 2013 passed by the second respondent in Nagar Kacheri No. 3/27556/2011 is quashed and the certificate originally issued in favour of the petitioner is directed to be restored with immediate effect., It would do well for the members of the scrutiny committee to approach the matter with a broader mind than is evident in the present case., Writ Petition (Madras Division) No. 1037 of 2016 is allowed as above. Writ Miscellaneous Petition (Madras Division) No. 894 of 2016 is closed. There will be no order as to costs., In view of the present lockdown owing to the COVID‑19 pandemic, a web copy of the order may be utilized for official purposes, but ensuring that the copy of the order presented is the correct copy shall be the responsibility of the advocate or litigant concerned., 27 September 2021. Index: Yes. Internet: Yes/No.
id_1266	0	Case Number: CBI/34/2021, Reference Case Number: 220-2015-0012, under section 120-B, read with sections 420 and 468 of the Indian Penal Code, and sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act. Central Bureau of Investigation versus Ram Gopal and others. Supreme Court of India, by orders dated 16 December 2022, pointed out the following queries to the Central Bureau of Investigation:, Adani Enterprises Limited: It is not clear why, despite the observations of the Technical Evaluation Committee in its reports dated 29 August 2012, 15 September 2012, an undated report, a report dated 19 October 2012 and a report dated 6 November 2012 insisting that Adani Enterprises Limited was not eligible in the absence of copies of submissions made to the statutory government authorities in support of overburden and coal production, the firm was declared eligible by the Tender Committee on the basis of a certificate dated 24 September 2012 issued by its chartered accountant and an undated certificate of its company secretary. The certificates mentioned that the information given with respect to coal produced and overburden planned was as per the quarterly report of coal production activity submitted to the Department of Mining and Energy of the Republic of Indonesia and the Department of Environment of the Republic of Indonesia. When such quarterly submissions were filed with the Indonesian authorities, why were they not insisted upon by the Tender Committee? Would this not amount to showing undue favour to the company? During investigation, if the copies of submissions made to the Indonesian government authorities in support of overburden and coal production were taken on record, it would have shown whether the certificates furnished by the company showed correct figures of overburden and coal production., AMR India Limited (AMR – Coastal Consortium): The Technical Evaluation Committee, in its report dated 29 August 2012, found that the company had not filed copies of submissions made to the government authorities in support of overburden and coal production, year‑wise and mine‑wise, duly certified by the statutory auditors. Yet Deputy General Manager Arvind Kumar, Corporate Relations and Management Group, in a letter dated 31 August 2012, did not ask for those submissions and instead sought clarification regarding work‑done certificates issued by Singareni Collieries Company Limited. Did the Tender Committee show undue favour to AMR India Limited by declaring its bid technically fit despite the company not providing the required submissions? During investigation, if the copies of submissions made to the government authorities in support of overburden and coal production were taken on record, it would have shown whether the work‑done certificates furnished by Singareni Collieries Company Limited showed correct figures. The financial expert informed that, as per the prevailing system of submissions of returns to government authorities in India, such a declaration has to be provided by the authorised person of the mine owner for coal production on a monthly, quarterly and annual basis to the Controller General (Mines), Controller of Mines, Regional Controller of Mines and the concerned State Government. Therefore, when such a declaration is filed regularly, why was it not insisted upon by the Tender Committee?, LANCO Infratech Limited: During investigation, if the copies of submissions made by LANCO Infratech Limited to the government authorities in Australia in support of overburden and coal production were taken on record, it would have shown whether the royalty returns furnished by LANCO Infratech Limited showed correct figures of overburden and coal production., If undue favours were shown by the Tender Committee to all three ineligible bidders, would this constitute a conspiracy of the Tender Committee with all three ineligible bidders, a conspiracy with the successful bidder only, or was the Tender Committee persuaded by the royalty returns filed by LANCO Infratech Limited, the certificates of the chartered accountant/company secretary of Adani Enterprises Limited and the work‑done certificates given by Singareni Collieries Company Limited in order to ensure wider competition, considering that the coal block was allocated in 1995, attempts to select the Mine Developer and Operator had failed in 2007, 2008 and 2009, the tender deadline was extended twice for greater participation, and the Ministry of Coal was pressing for early mining activity by Steel Authority of India Limited?, The Central Bureau of Investigation has filed a reply to the queries of the Supreme Court of India. Regarding Adani Enterprises Limited, it is factually correct that the certificate dated 24 September 2012 issued by the chartered accountant and the undated certificate of its company secretary did not fulfil the eligibility requirement. The investigation was not specifically directed to examine this deficiency because it concentrated on the specific question of illegal award of the contract for the appointment of Mine Developer and Operator. The contract was awarded to Messrs Lanco Infratech Limited; consequently, the conduct of other companies that unsuccessfully applied for the award was not subjected to intensive investigation. There was no undue favour to the non‑awardee companies., Regarding AMR India Limited, it is indisputable that there were clear‑cut deficiencies in the documents submitted to substantiate its claim for eligibility. However, for the reasons stated above concerning Adani Enterprises Limited, the investigation was not directed at the non‑allocatee/awardee companies. It is also indisputable that the Tender Committee exceeded its powers in modifying or relaxing some eligibility conditions set out in the original tender document. For the reasons stated, the investigation did not focus on adherence to substantive procedural provisions in the case of non‑allocatee/awardee companies., The conclusion of the Supreme Court of India as mentioned in paragraph 100(iii) is absolutely correct., It is undoubtedly correct that the Tender Committee overlooked the matter of ineligibility by failing to strictly comply with the clear prescribed conditions for all three applicants. The moot point is whether any mens rea can be attributed to the members of the Tender Committee for such unilateral relaxation or non‑compliance, in the peculiar circumstance where the withdrawal or de‑allocation of the coal block on account of inordinate delay loomed large. Even after uniformly relaxing the condition at that stage, it was incumbent to insist upon absolute compliance in the matter of the entity that was eventually awarded the contract. In other words, the situation would be different if the successful applicant had been given an opportunity to submit the requisite documents as a precondition to the award of the contract., Supreme Court of India has carefully considered the reply filed on behalf of the Central Bureau of Investigation as well as submissions addressed by Shri R. S. Chema, Lead Senior Advocate for the Central Bureau of Investigation., Directions regarding Adani Mining Private Limited: It was noted in the earlier order dated 16 December 2022 that, by a letter dated 15 September 2012 (CD‑I‑9830, D‑51, page 86), Steel Authority of India Limited called upon Adani Mining Private Limited to provide mine‑wise submissions made to the statutory government authorities duly certified by the statutory auditor., In response, Adani Enterprises Limited, by its letter dated 25 September 2012, submitted its statutory auditor’s certificate against the mining experience criteria (CD‑I‑13005, D‑59, vol. III, page 414). It did not submit mine‑wise submissions made to the statutory government authority by PT Lamindo Inter Multikon in Jakarta, Indonesia., The certificate dated 24 September 2012, given by Anuj Jain, Partner of Dharmesh Parikh & Co., Chartered Accountants, and enclosed with the letter of Adani Enterprises Limited dated 25 September 2012, certified that coal produced and overburden planned by PT Lamindo Inter Multikon during the financial year 2010‑11 were as follows: Overburden (OB) planned for the period April 2010 to March 2011 was 94,25,880 tonnes; coal produced was 21,52,241 tonnes; total overburden planned was 25,18,122 tonnes. These figures were derived from the quarterly report of coal production activity submitted to the Department of Mining and Energy of the Republic of Indonesia and the Department of Environment of the Republic of Indonesia. The certificate also stated that Adani Enterprises Limited (through its subsidiary) is the holding company of PT Lamindo Inter Multikon., Why did Adani Enterprises Limited shy away from providing mine‑wise submissions made by PT Lamindo Inter Multikon to the state government authority in Jakarta, Indonesia? The Technical Evaluation Committee was not satisfied with the response of Adani Enterprises Limited and, as a result, another letter dated 9 October 2012 was issued by Steel Authority of India Limited to Adani Mining Private Limited to provide mine‑wise submissions made to the statutory government authorities with respect to coal produced and overburden excavated, duly certified by its statutory auditor (CD‑I‑9731, D‑51, page 188). In the response dated 16 October 2012, Adani Mining Private Limited again relied on the certificate of its company secretary, which certified that the information given with respect to coal produced and overburden planned was as per the submission of the quarterly report of coal production activity to the Department of Mining and Energy of the Republic of Indonesia (CD‑I‑9721, D‑51, page 198). The certificate provided the following details: Bunyu Mine (single mine), address Mustika Ratu building, 3rd floor, JI Gatot Subroto Kav. 74‑75 Jakarta, Indonesia; mineral: coal; PT Lamindo Inter Multikon; 2.518 million tonnes per annum (MTPA) capacity; overburden planned 1.179.425 million tonnes., Why did Adani Enterprises Limited not submit the quarterly report of coal production activity submitted by PT Lamindo Inter Multikon to the Department of Mining and Energy of the Republic of Indonesia despite repeated requests of Steel Authority of India Limited? As per the reply of the Central Bureau of Investigation, the certificate dated 24 September 2012 did not fulfil the eligibility requirement and the investigation was not specifically directed to examine this deficiency. The conduct of other companies that unsuccessfully applied for the award was not subjected to intensive investigation., In the opinion of the Supreme Court of India, if there had been an investigation into the quarterly report of coal production activity submitted to the Department of Mining and Energy of the Republic of Indonesia and the Department of Environment of the Republic of Indonesia by PT Lamindo Inter Multikon for the financial year 2010‑11, it would have revealed whether there was any malafide intent in withholding these returns and whether the certificate dated 24 September 2012 gave true and correct information. If the information in the certificates was not correct, consequences would obviously follow. Therefore, further investigation is required with regard to the quarterly reports of coal production activity submitted by PT Lamindo Inter Multikon for the financial year 2010‑11, a step‑down subsidiary (through its subsidiaries) of Adani Enterprises Limited. The Supreme Court of India orders accordingly., Directions regarding AMR India Limited: Regarding the consortium of AMR India Limited and Messrs Coastal Projects, it is noted in the order dated 16 December 2022 that the Technical Evaluation Committee, in its report dated 29 August 2012, required copies of submissions made to government authorities in support of overburden and coal production, year‑wise and mine‑wise, duly certified by the statutory auditors of the bidders (CD‑I‑9850, D‑51, page 67). However, Shri Arvind Kumar, Deputy General Manager (Corporate Relations and Management Group), in a letter dated 31 August 2012, called upon AMR India Limited to provide a clarification from Singareni Collieries Company Limited indicating the relation of Pit‑II of Koyagudem OCP‑II with Koyagudem OCP‑II (CD‑I‑9843, D‑51, page 74) and did not call upon AMR India Limited to provide the required copies of submissions., According to the reply of the Central Bureau of Investigation, it is factually indisputable that there were clear‑cut deficiencies in the documents submitted by AMR India Limited to substantiate its claim for eligibility. The reply also states that the investigation did not focus on adherence to substantive procedural provisions in the case of non‑allocatee/awardee companies. In the opinion of the Supreme Court of India, further investigation is required to determine why the work‑done certificate dated 20 April 2012 issued by Singareni Collieries Company Limited for overburden excavation from Koyagudem OCP‑II and the work‑done certificate issued by Singareni Collieries Company Limited for coal extraction from Pit‑II of Koyagudem OCP‑II were accepted in place of submissions made to government authorities in support of overburden and coal production, year‑wise and mine‑wise, duly certified by statutory auditors. Further investigation is also required with regard to submissions made to government authorities in support of overburden and coal production, year‑wise and mine‑wise, by Singareni Collieries Company Limited for extraction of coal/shale with surface miner including loading, transportation, dumping etc. at Pit‑II Koyagudem, Opencast Project‑II, Yellandu area, Khammam District, Andhra Pradesh, as well as blast‑hole drilling, controlled blasting with shock‑tube initiation, excavation, loading, transportation, dumping etc. at Koyagudem OCP‑II through contractor Messrs AMR India Limited, to find out whether the work‑done certificates gave true and correct figures. The Supreme Court of India directs that further investigation be carried out and a report be filed in this regard., Directions with regard to Messrs Lanco Infratech Limited: The Supreme Court of India observed in paragraph 100(iii) of the order dated 16 December 2022 that, during investigation, if the copies of submissions made by LANCO Infratech Limited to the government authorities in Australia in support of overburden and coal production were taken on record, it would have shown whether the royalty returns furnished by LANCO Infratech Limited showed correct figures of overburden and coal production. The Central Bureau of Investigation has replied that the conclusion of the Court as mentioned in paragraph 100(iii) is absolutely correct. Therefore, further investigation is required with regard to submissions made by Messrs Lanco Infratech Limited to the government authorities in Australia in support of overburden and coal production to determine whether the royalty returns furnished by Lanco Infratech Limited showed correct figures. Let further investigation be carried out and a report be filed on 5 April 2023. The further investigation shall not be circumscribed by anything recorded in this order and may be conducted on other aspects as deemed necessary by the Investigating Officer, considering the spirit of this order., A copy of the order shall be given dasti if so requested. Announced in open court by Shri Arun Bhardwaj on 4 January 2023. Special Judge (Prevention of Corruption Act) Central Bureau of Investigation Coal Block Cases‑01.
id_1267	0	Reportable Civil Appeal No. 8129 of 2022 Madhyamam Broadcasting Limited (Appellant) versus Union of India and others (Respondents). Civil Appeal No. 8130 of 2022 and Civil Appeal No. 8131 of 2022. Dr Dhananjaya Y Chandrachud, Chief Justice of India., The Union Ministry of Information and Broadcasting revoked the permission it had granted to Madhyamam Broadcasting Limited to uplink and downlink a news and current affairs television channel called Media One. The appellants, comprising Madhyamam Broadcasting Limited, the trade union of working journalists, and the editor, senior web designer and senior cameraman of Planetcast Media Services Ltd, initiated proceedings under Article 226 of the Constitution before the High Court of Kerala challenging the action of the Union Ministry of Home Affairs. A Single Judge dismissed the petitions by judgment dated 8 February 2022. The Division Bench of the High Court dismissed the writ appeal by judgment dated 2 March 2022, relying on material disclosed in a sealed cover by the Union Ministry of Home Affairs. The appellants instituted proceedings under Article 136 of the Constitution to challenge the correctness of the Division Bench judgment., On 19 May 2010 Madhyamam Broadcasting Limited applied for permission to uplink and downlink a news and current affairs television channel named Media One. On 7 February 2011 the Ministry of Home Affairs granted a security clearance for the operation of the channel. By an order dated 30 September 2011 the Ministry of Information and Broadcasting gave Madhyamam Broadcasting Limited permission to uplink Media One for a period of ten years under the Policy Guidelines for Uplinking of Television Channels from India. The permission was granted subject to compliance with the Uplinking Guidelines and conditions set out in the annexure to the letter, including powers of the licensing authority to impose restrictions, revoke the licence on grounds of national security and public order, prohibit programmes prejudicial to friendly relations with foreign governments, communal harmony, etc., and to require access to equipment, records and detailed technical information., On the same day the Ministry of Information and Broadcasting issued a registration certificate for downlinking Media One for a period of five years according to the Policy Guidelines for Downlinking of Television Channels. The downlinking permission required compliance with the Annexure conditions as well as the Programme and Advertising Code prescribed under the Cable Television Networking (Regulation) Act, 1995., In 2012 Madhyamam Broadcasting Limited applied for uplinking and downlinking of a non‑news television channel called Media One Life and a news television channel Media One Global. Madhyamam Broadcasting Limited withdrew the application for Media One Global. On 26 August 2015 the Ministry of Information and Broadcasting granted permission to uplink and downlink Media One Life for a period of ten years., On 12 February 2016 the Ministry of Information and Broadcasting issued a show cause notice proposing to revoke the permission for uplinking and downlinking granted to Media One and Media One Life in view of the denial of security clearance by the Ministry of Home Affairs. The notice stated that security clearance to the company and its directors is a prerequisite condition for grant of permission, that the licence can be revoked on grounds of national security and public order, and that the denial of security clearance constituted non‑compliance., Seven days after the show cause notice Madhyamam Broadcasting Limited applied to renew the licence to downlink Media One, whose initial five‑year licence had expired. By an order dated 11 July 2019 the Ministry of Information and Broadcasting renewed the downlinking permission of Media One for a further period of five years. By an order dated 11 September 2019 the Ministry of Information and Broadcasting cancelled the uplinking and downlinking permission to Media One Life., On 3 May 2021 Madhyamam Broadcasting Limited applied to renew the downlinking and uplinking permissions for Media One, which were to expire on 30 September 2021 and 29 September 2021 respectively. On 5 January 2022 the Ministry of Information and Broadcasting issued another show cause notice invoking clause 9.2 of the Uplinking Guidelines and proposing to revoke the permission granted to operate Media One, stating that security clearance is a prerequisite, that the Ministry of Home Affairs had denied security clearance in the past and may consider it denied in the present case, and that consequently Madhyamam Broadcasting Limited had ceased to fulfil the eligibility condition for renewal., On 19 January 2022 Madhyamam Broadcasting Limited replied to the show cause notice, submitting that it had not received any intimation of denial of security clearance, that the grounds for denial were not communicated, that it had not engaged in any activity warranting denial, that a similar notice had been served in 2016 and the licence was subsequently renewed, and that the actions of the Ministry of Information and Broadcasting were arbitrary, violative of Article 14 of the Constitution and of the right to freedom of speech and expression under Article 19(1)(a)., By an order dated 31 January 2022 the Ministry of Information and Broadcasting revoked the permission to uplink and downlink Media One because of the denial of security clearance. The order noted that the permission granted on 30 September 2011 was valid up to 29 September 2021, that clause 9.2 of the Uplinking Guidelines requires security clearance as a prerequisite, that Madhyamam Broadcasting Limited had applied for renewal on 3 May 2021 for a ten‑year period, that the Ministry of Home Affairs had denied security clearance, and that consequently the permission was revoked with immediate effect., Madhyamam Broadcasting Limited initiated proceedings under Article 226 of the Constitution before the High Court of Kerala to challenge the Ministry of Information and Broadcasting's order revoking the uplinking and downlinking permission. The appellants sought (i) setting aside of the order dated 31 January 2022, (ii) a direction to the Ministry of Information and Broadcasting and the Ministry of Home Affairs to provide an opportunity to be heard before revoking the permission, and (iii) a declaration that there are no circumstances warranting denial of security clearance or revocation of the licence., The Assistant Solicitor General of India filed a statement before the High Court submitting that security clearance was denied on the basis of intelligence inputs that are sensitive and secret in nature, and that the Ministry of Home Affairs could not disclose the reasons for denial as a matter of policy and in the interest of national security., By judgment dated 8 February 2022 the Single Judge of the High Court of Kerala dismissed the writ petition, holding that (i) paragraph 10.4 of the Uplinking Guidelines and paragraph 9.4 of the Downlinking Guidelines stipulate that eligibility criteria such as net worth and management experience do not apply at renewal but other terms do, so security clearance must be considered at renewal; (ii) the principles of natural justice are not applicable in matters concerning national security, relying on Ex‑Armymen’s Protection Services Private Limited v. Union of India and Digi Cable Network (India) Private Ltd. v. Union of India; and (iii) files submitted by the Ministry of Home Affairs indicated that a Committee of Officers, after taking note of intelligence agency inputs, advised non‑renewal, and the Ministry of Home Affairs accepted those recommendations., The Division Bench of the High Court directed that the files submitted by the Ministry of Home Affairs be placed before it. Upon perusing the files the Division Bench held that (i) although the precise nature and gravity of the issue were not discernible, there were clear indications that the security of the state and public order would be impacted if the permission were renewed; (ii) while the State cannot ordinarily interfere with freedom of the press, judicial review in matters involving national security is limited; (iii) the Union of India may decline to provide information when constitutional considerations such as state security exist or when a specific statutory immunity applies, but it must justify the claim on affidavit, relying on M.L. Sharma v. Union of India; and (iv) the State justified non‑disclosure because the Ministry of Home Affairs indicated that denial of security clearance was based on sensitive intelligence inputs, and therefore reasons could not be disclosed., The appellants instituted proceedings under Article 136 of the Constitution against the Division Bench judgment. By order dated 15 March 2022 the Supreme Court of India, after perusing the relevant files submitted in sealed cover, granted an interim stay on the Ministry of Information and Broadcasting order of 31 January 2022. The Court directed that the order revoking the security clearance shall remain stayed, that Madhyamam Broadcasting Limited may continue operating Media One on the same basis as prior to the revocation, and that the question of whether the contents of the files should be disclosed to the appellants is expressly kept open for determination before final disposal., Mr Dushyant Dave, Senior Counsel for Madhyamam Broadcasting Limited, submitted that (i) the order revoking the permission is unconstitutional because security clearance is a prerequisite only for grant of permission, not for renewal, and under clause 10.2 of the Uplinking Guidelines renewal is subject only to the channel not having been found guilty of violating the Programme and Advertising Code on five occasions or more; (ii) security clearance cannot be denied on grounds that exceed the reasonable restrictions on freedom of the press prescribed under Article 19(2) of the Constitution read with Section 4(6) of the Cable Television Networks (Regulation) Act, 1995; and (iii) paragraphs 5.2 and 5.9 of the Uplinking Guidelines prescribe limited grounds of public interest and national security to suspend the permission for a specified period. He further argued that the security clearance was not withdrawn between 2011 and 2022, that the renewal should have been automatic, and that the Union of India, by submitting material in a sealed cover and the High Court relying on it, violated the principles of natural justice and the open court doctrine., Mr Huzefa A Ahmadi, senior counsel for the editor, senior web designer and senior cameraman of Media One, submitted that the order violates Madhyamam Broadcasting Limited’s freedom of speech protected under Article 19(1)(a), that the show cause notice and revocation order are bereft of reasons, that the Ministry of Home Affairs cited sensitivity and policy as reasons for non‑disclosure, that the Division Bench observed that the gravity and impact of the issue were not discernible from the files, and that the Court has consistently frowned upon overbroad use of national security to abridge fundamental rights. He invoked the doctrine of proportionality as enunciated in Anuradha Bhasin v. Union of India and K.S. Puttaswamy (J) v. Union of India, arguing that revocation was not the least restrictive means., Mr Mukul Rohatgi, senior counsel for the Kerala Union of Working Journalists, submitted that freedom of the press under Article 19(1)(a) is a precious freedom that must not be infringed callously, that the High Court applied the same standard for grant of permission and renewal, and that even if material is sensitive, the respondent could have redacted it before allowing the appellants to peruse the file., Mr K.M. Nataraj, Additional Solicitor General, submitted that paragraphs 9.2 and 10 of the Uplinking Guidelines demonstrate that security clearance is a prerequisite for renewal, that the Ministry of Information and Broadcasting was justified in revoking the permission because the Ministry of Home Affairs denied security clearance, and that the principles of natural justice are excluded when issues of national security are involved, relying on Ex‑Armymen and Digi Cable., The issues for determination are: (i) whether security clearance is a condition required for renewal of permission under the Uplinking and Downlinking Guidelines; (ii) whether denying renewal and the Division Bench’s course of action violated the appellants’ procedural guarantees under the Constitution; and (iii) whether the order denying renewal is an arbitrary restriction on Madhyamam Broadcasting Limited’s right to freedom of speech and expression under Article 19(1)(a)., On 3 May 2021 Madhyamam Broadcasting Limited submitted an application for renewal of uplinking and downlinking permission, stating that the permissions would expire on 30 September 2021 and 29 September 2021 respectively. The Assistant Solicitor General filed that the application was forwarded by the Ministry of Information and Broadcasting to the Ministry of Home Affairs, which by a letter dated 29 December 2021 denied security clearance. The Ministry of Information and Broadcasting issued a show cause notice stating that Madhyamam Broadcasting Limited had ceased to fulfil the eligibility requirement for renewal due to denial of security clearance and asked it to show cause why the permission should not be revoked. By its letter dated 31 January 2022 the Ministry of Information and Broadcasting ordered that the permission be revoked. The Division Bench noted the inconsistency in the use of the terms ‘renewal’ and ‘revocation’., Paragraph 10 of the Uplinking Guidelines stipulates that renewal of permission will be considered for a period of ten years, subject to the condition that the channel not have been found guilty of violating the terms and conditions of permission, including violations of the Programme and Advertising Code on five or more occasions. Paragraph 10.4 provides that at the time of renewal the eligibility criteria of net worth and management experience do not apply, but other terms and conditions continue to apply. Paragraph 9 of the Downlinking Guidelines contains a similar procedure for renewal, indicating that renewal is not a vested right and is subject to the conditions set out in paragraph 10., Media One has not been found guilty of violating the Programme and Advertisement Code on five or more occasions.
id_1267	1	On 28 February 2020, a show cause notice was issued by the Ministry of Information and Broadcasting (MIB) alleging a violation of the Cable Television Network Rules 1994 and Programme Code of the Cable Television Networks (Regulation) Act 1995 while telecasting reports on the violence which took place in North‑East Delhi during the protests organised against the Citizenship (Amendment) Act 2019. By an order dated 6 March 2020, MIB in exercise of powers conferred by Section 20(2) and 20(3) of the Cable Television Networks (Regulation) Act 1995 and paragraphs 8.1 and 8.2 of the Uplinking Guidelines ordered the prohibition on the transmission and retransmission of Media One channel for forty‑eight hours. However, by an order dated 7 March 2020, MIB directed that Media Broadcast Ltd may resume uplinking the channel Media One from 9.30 am on the same day. Other than this instance, there is nothing on record to indicate that Media One violated the Programme Code. Paragraph 10.2 of the Uplinking Guidelines states that the channel should not have violated the Programme Code on more than five occasions. The solitary incident of an alleged violation of the Programme Code does not fulfil the first condition of Paragraph 10 of the guidelines., Condition 2 and 3: requirement of security clearance for renewal of licence. Paragraph 10.4 of the Uplinking Guidelines stipulates that at the time of considering the application for renewal, the channel should fulfil all the terms and conditions that apply to the grant of permission as modified by the letter of permission. The terms and conditions applicable for the grant of permission are spread across the Uplinking and Downlinking Guidelines and are not concentrated in a specific paragraph or clause. Paragraph 2 of the Uplinking Guidelines (and paragraph 1 of the Downlinking Guidelines) prescribes the criteria of eligibility applicable to applicant companies. The conditions, inter alia, include minimum net worth and prior managerial experience. Paragraph 3 of the Uplinking Guidelines (and paragraph 2 of the Downlinking Guidelines) prescribe the eligibility criteria for uplinking and downlinking a news and current affairs TV channel. Paragraph 9 of the Uplinking Guidelines (and Paragraph 8 of the Downlinking Guidelines) prescribe the procedure for grant of permission of channels., The provision is extracted below: 9.1 The applicant company can apply to the Secretary, Ministry of Information and Broadcasting, in triplicate, in the prescribed format Form 1 along with all requisite documents including a demand draft for an amount equal to the processing fee wherever prescribed, payable at par at New Delhi, in favour of the Pay and Accounts Officer, Ministry of Information and Broadcasting, Shastri Bhawan, New Delhi. 9.2 On the basis of information furnished in the application form, if the applicant is found eligible, its application will be sent for security clearance to the Ministry of Home Affairs and for clearance of satellite use to the Department of Space wherever required. Paragraph 9.2 stipulates that an application which is found to be eligible would be sent to the Ministry of Home Affairs for security clearance. Paragraphs 3 and 9 indicate that upon receipt of the application form, MIB will undertake an exercise to determine if the conditions of eligibility prescribed in Paragraphs 2 and 3 are fulfilled. If the conditions are fulfilled, the application is sent to the Ministry of Home Affairs for security clearance. Thus, Paragraph 9.2 prescribes a condition in addition to those stipulated in Paragraphs 2 and 3 of the Uplinking Guidelines. The heading of Paragraph 9, namely, procedure for obtaining permission, does not detract from the prescription of a substantive condition., Paragraph 10.4 excludes the eligibility criteria of net worth of the company and managerial experience from the consideration of the renewal application. All other conditions prescribed by the guidelines for permission are applicable for renewal of permission. The requirement of security clearance arises at a stage subsequent to the fulfilment of conditions prescribed under Paragraphs 2 and 3. If the preliminary conditions prescribed are applicable at the time of renewal, there is no reason to exclude the application of the requirement of security clearance for renewal of permission. Further, Paragraph 10.4 of the Uplinking Guidelines stipulates that the conditions as modified by the permission letter are applicable at the time of renewal of the licence. The annexure to the permission letter does not specify any condition modifying or eliminating the condition of security clearance. Rather, the annexure provides that the licence shall be revoked on grounds of public order and national security. Though in view of Paragraph 10 of the Uplinking Guidelines, the licencee does not have a vested interest for renewal of the permission, the grounds for denying a renewal of licence cannot be materially different from the grounds for revoking the licence. This is because both non‑renewal of licence and revocation of licence are restrictions on the right to freedom of the press. The intent behind the exclusion of the eligibility criteria of net worth and managerial experience for the purpose of a renewal application is because the freedom of the press cannot be restricted on grounds other than stipulations under Article 19(2) of the Constitution. Thus, Paragraph 10.4 of the Uplinking Guidelines as modified by the permission letter indicates that the Ministry of Home Affairs could deny security clearance on the grounds of national security and public order. Accordingly, according to the Uplinking and Downlinking Guidelines, security clearance from the Ministry of Home Affairs is one of the conditions that is required to be fulfilled for renewal of permission for uplinking and downlinking of news channels., Judicial Review on procedural grounds. Article 13 of the Constitution states that all laws that are inconsistent with fundamental rights enumerated in Part III of the Constitution shall be void. Article 13(3)(a) states that for the purpose of this provision, law includes any ordinance, order, bye‑law, rule, regulation, notification, custom or usage having in the territory of India the force of law. It is a settled position of law that an administrative action can be challenged on the ground of a violation of fundamental rights. Following the expansion of the content of the right to equality under Article 14 to include the guarantee against arbitrariness, the grounds for judicial review of administrative action have expanded. Administrative action is judicially reviewable on the grounds of (i) unreasonableness or irrationality; (ii) illegality; and (iii) procedural impropriety. The Supreme Court of India has also held that in addition to the above grounds, administrative action can be reviewed on the ground of proportionality if it affects freedoms that are guaranteed under Articles 19 and 21 of the Constitution., The principle of natural justice that is derived from common law has two primary facets – Audi Alterum Partem and Nemo Judex In Causa Sua. Audi Alterum Partem encapsulates the rule of fair hearing. Nemo Judex In Causa Sua encapsulates the rule against bias, that is, no person should be a judge of his own case. It is the case of Media Broadcast Ltd that MIB did not comply with the principle of Audi Alterum Partem because the reasons for the denial of security clearance and the material relevant to the decision of revocation were not disclosed. This, it is argued, infringes upon the right of Media Broadcast Ltd to a fair hearing. On the other hand, MIB contends that it was not required to comply with the principles of natural justice since the denial of security clearance is a matter involving national security, which is an established exception to the application of the principles of natural justice. There are three important considerations that have to be answered in the context: (i) Whether the non‑disclosure of reasons and relevant material for the decision to deny security clearance infringes upon the right to a fair hearing, that is protected under Articles 14 and 21; (ii) Whether the infringement of the right to a fair hearing would render the decision void; and (iii) If considerations of national security are an established exception to principles of natural justice, how should the Supreme Court of India resolve the competing interests represented by the principles of natural justice and national security. This case presents the Supreme Court of India with an opportunity to clarify and lay down the law on the applicability of the principles of natural justice when issues of national security are involved. The Court must choose between either permitting a complete abrogation of the principles of natural justice or attempting to balance the principles of natural justice with concerns of national security. It is imperative that we analyse the purpose natural justice serves, and the jurisprudential development of procedural due process before choosing between these two competing visions., Principles of natural justice: purpose and content. The principles of natural justice were read into the law and conduct of judicial and administrative proceedings with an aim of securing fairness. These principles seek to realise the following four momentous purposes: Fair Outcome – Procedural rules are established to prevent the seepage of bias and unfairness in the process of decision making. A decision that is reached after following the procedural rules is expected to be fair. An outcome that is reached through a fair process is reliable and accurate. In the context of criminal proceedings, procedural rules are prescribed in the Indian Evidence Act 1872 and the Code of Criminal Procedure 1973 to secure the correct outcome and to identify the truth. In Chief Constable of North Wales Police v. Evans, the appellant was a probationary member of the North Wales Police Force. He was removed from the force without putting forth the allegations against him. The House of Lords set aside the decision on the ground that the non‑disclosure of allegations was violative of the principles of natural justice. The Court cautioned that there was an extreme danger in proceeding without putting forth the allegations because the veracity of the allegations could never be tested., Inherent value in fair procedure: Fair procedure is not only a means to the end of achieving a fair outcome but is an end in itself. Fair procedure induces equality in the proceedings. The proceedings seem to be and are seen to be fair. In Kanda v. Government of Malaya, an Inspector of Police challenged his dismissal on the ground that the disciplinary proceedings were not conducted in accordance with the principles of natural justice. It was contended that he did not have knowledge of the contents of the enquiry report that was before the adjudicating officer. The crux of the case was whether his lack of knowledge of the contents of the report led to a likelihood of bias both conscious and unconscious. The Court held that the likelihood of bias test cannot be solely used to determine the violation of natural justice. It is not necessary that the accused must prove bias or prejudice. Rather, it is sufficient if the non‑disclosure would lead to a possibility of bias and prejudice since no one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing. The House of Lords held that non‑disclosure of information is per se violative of the principles of fair trial., Legitimacy of the decision and decision‑making authority: When a decision is formed following the principles of natural justice, there is a perception that the decision is accurate and just. It preserves the integrity of the system as the decisions, in addition to being fair, also appear to be fair. The perception of the general public that the decisions appear to be fair is important in building public confidence in institutions, which aids in securing the legitimacy of the courts and other decision‑making bodies., Dignity of individuals: Non‑outcome values, that is, values that are independent of the accuracy and soundness of the verdict, are intrinsically important. The principles of fairness express the elementary idea that to be a person, rather than a thing, is at least to be consulted about what is done with one. D.J. Galligan in his book Due Process and Fair Procedures explains that to insist on fair treatment is implicit on a renewed understanding of the relationship between citizens and the State: it builds on the idea of decision‑making as a social process rather than a purely logical activity, on the inherent indeterminacy and contingency of standards to insist on fair treatment of persons by administrative bodies is to draw on those implicit commitments and understandings at the very base of the relationship between the citizen and the State. TRS Allan argues that more often than not, the right outcome is itself a matter of controversy. It is possible to arrive at divergent views, both of which are reasonable. He argues that when procedures allow the genuine participation and contestation of ideas, a citizen is treated with respect and dignity that they deserve in a society that is governed by the rule of law., Indian courts have been significantly influenced by the courts in England on the interpretation, application, and content of natural justice, primarily because the principles are derived from common law and are grounded in the rule of law. The jurisprudential developments across other common law jurisdictions relating to the principles of natural justice usually, if not always, spill over to Indian jurisdiction. Our courts were soon to follow suit when the courts in England made a functional distinction between executive and non‑judicial actions and between an action that deprives rights and an action that deprives privilege for deciding the applicability of the principles of natural justice. In Ridge v. Baldwin, the House of Lords repudiated the functional distinction based on the nature of the adjudicating body and held that the duty to act judicially in compliance with the principles of natural justice can be inferred from the nature of the decision and not the nature of the decision‑making body. Courts have with time substituted the usage of the terminology of the principles of natural justice with the doctrine of fairness because natural justice is encapsulated in the doctrine of fairness; as Justice Bhagwati termed it, fair‑action in play. The duty to act fairly that is derived from common law is not exhaustively defined in a set of concrete principles. Courts, both in India and abroad, have demonstrated considerable flexibility in the application of the principles of natural justice by fine‑tuning them to situational variations. The Supreme Court of India has observed earlier that the concept of natural justice cannot be put into a straitjacket formula and that it is incapable of a precise definition. Courts have undertaken an ends‑based reasoning to test if the action violates the common law principle of natural justice. The party alleging a violation of a principle of natural justice has to prove that the administrative action violated the principles of natural justice and that non‑compliance prejudiced the party. The courts, while assessing prejudice, determine if compliance with the principles of natural justice could have benefited the party in securing a just outcome. It needs to be seen if this content of natural justice and the standard for judicial review of non‑compliance has undergone a change after principles of natural justice were constitutionalised in Maneka Gandhi v. Union of India., Constitutionalising principles of natural justice: the impact of Maneka Gandhi. Two jurisprudential developments on the interpretation of Part III of the Constitution must be noticed to understand the impact of constitutionalising the principles of natural justice. The first is the expansion of the meaning of the expression “procedure established by law” as it finds place in Article 21 of the Constitution to include procedural due process. The second is the shift from reading the provisions of Part III of the Constitution as isolated silos to understanding the overlapping tendencies of fundamental rights. In A.K. Gopalan v. State of Madras, the appellant contended that the phrase “procedure established by law” as it finds place in Article 21 includes within its ambit the principles of natural justice. While the majority rejected this contention, Justice Fazl Ali in his celebrated dissent held that the expression cannot be given a limited meaning. The learned Judge observed that the phrase must include procedural due process which includes (i) issuance of a notice; (ii) an opportunity to be heard; (iii) an impartial tribunal; and (iv) an orderly course of procedure. Justice Fazl Ali’s opinion was followed by the Supreme Court of India in Maneka Gandhi. In Maneka Gandhi, it was held that the life and liberty of a person cannot be restricted by any procedure that is established by law but only by a procedure that is just, fair, and reasonable. In that case, the appellant challenged the order of the Regional Passport Officer impounding her passport. The impounding order did not disclose the reasons for such action. The Government of India declined to disclose its reasons for the action by relying on Section 10(5) of the Passports Act 1967 which stipulates that the reason for impounding the passport may not be given where the passport authority is of the opinion that disclosure of reasons is not in the interests of the sovereignty and integrity of India, security of India, friendly relations of India with any foreign country or in the interest of the general public. The appellant filed a writ petition, inter alia, challenging the action of the Government of India declining to give reasons. The Supreme Court of India observed that the right to go abroad is an extension of the right to life and personal liberty protected under Article 21 of the Constitution. This right can only be taken away by a procedure that is not unfair, arbitrary, and unreasonable. Relying on the judgment of a Constitution Bench of this Court in R.C. Cooper v. Union of India which had held that fundamental rights are not watertight compartments, it was observed that the principle of reasonableness that is guaranteed under Article 14 projects on the procedure contemplated by Article 21. Thus, every individual has a right to a reasonable hearing: the principle of reasonableness must be projected in the procedure contemplated by Article 21, having regard to the impact of Article 14 on Article 21. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non‑arbitrariness, pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be right and just and fair and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. The Supreme Court of India held that principles of natural justice infuse reasonableness into the procedure. However, the Court noted that the principles of natural justice are not set‑in‑stone and are by their very nature modifiable. So, the violation of every conception of natural justice will not necessarily render the procedure unreasonable and violative of Articles 21 and 14. The Court held that the test that must be followed to determine if non‑compliance of natural justice has led to an unreasonable procedure is whether the procedure that was followed (or the procedure that was not followed) violates the core of the primary tenets of natural justice – the right to a fair hearing and the right against bias., On the facts of the case, Justice Bhagwati held that the procedure for impounding a passport under the provisions of the Passports Act 1967 was fair and just. The learned Judge held that the denial of pre‑decisional hearing was justified because otherwise, the purpose of impounding the passport, which is to take prompt action, would be defeated, and that the exceptional circumstances reasonably justified the departure from the settled principle of pre‑decisional hearing. The judgment of the Supreme Court of India in Maneka Gandhi spearheaded two doctrinal shifts on procedural fairness because of the constitutionalising of natural justice. Firstly, procedural fairness was no longer viewed merely as a means to secure a just outcome but a requirement that holds an inherent value in itself. In view of this shift, the courts are now precluded from solely assessing procedural infringements based on whether the procedure would have prejudiced the outcome of the case. Instead, the courts must decide if the procedure that was followed infringed upon the right to a fair and reasonable procedure, independent of the outcome. In compliance with this line of thought, the courts have read the principles of natural justice into an enactment to save it from being declared unconstitutional on procedural grounds. Secondly, natural justice principles breathe reasonableness into the procedure. Responding to the argument that the principles of natural justice are not static but are capable of being moulded to the circumstances, it was held that the core of natural justice guarantees a reasonable procedure which is a constitutional requirement entrenched in Articles 14, 19 and 21. The facet of audi alterum partem encompasses the components of notice, contents of the notice, reports of inquiry, and materials that are available for perusal. While situational modifications are permissible, the rules of natural justice cannot be modified to suit the needs of the situation to such an extent that the core of the principle is abrogated because it is the core that infuses procedural reasonableness. The burden is on the applicant to prove that the procedure that was followed (or not followed) by the adjudicating authority, in effect, infringes upon the core of the right to a fair and reasonable hearing., Standard to test reasonableness of procedure: proportionality as reasonableness. Once the applicant proves that the procedure that was followed was not reasonable with reference to the core of the principles of natural justice, the burden shifts on the State to prove that the limitation of the right is justified and reasonable. The State usually claims that the limitation of the right is justified because following a fair procedure would, inter alia, be prejudicial to public interest. What standard of review should the courts employ to test the reasonableness of the limitation? Rights are not absolute in a constitutional democracy. The jurisprudence that has emanated from the Supreme Court of India is that rights can be limited but such a limitation must be justified on the ground of reasonableness. Although only Article 19 of the Constitution expressly prescribes that the limitation must be reasonable, after the judgments of the Supreme Court of India in R.C. Cooper and Maneka Gandhi it is conclusive that the thread of reasonableness runs through the entire chapter on fundamental rights guiding the exercise of procedural and substantive limitations. That leaves us to answer the question of the standard used to assess the reasonableness of the limitation. The Constitution does not prescribe a standard of review. Much ink has flowed from the Supreme Court of India in laying down the varying standards to test reasonableness: rationality, Wednesbury unreasonableness, proportionality, and strict scrutiny. Reasonableness is a normative concept that is identified by an evaluation of the relevant considerations and balancing them in accordance with their weight. It is value oriented and not purpose oriented. That is why the courts have been more than open in identifying that the action is unreasonable rather than identifying if the action is reasonable. This is also why the courts, while assessing the reasonableness of limitations on fundamental rights, have adopted a higher standard of scrutiny in the form of proportionality. The link between reasonableness and proportionality and the necessity of using the proportionality standard to test the limitation on fundamental rights has been captured by Justice Jackson in the Canadian Supreme Court judgment in R v. Oakes. To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a constitutionally protected right or freedom. Second, the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves a form of proportionality test., The proportionality analysis assesses both the object and the means utilised, which are pertinent requirements while testing an infringement of fundamental rights. The Supreme Court of India has held that the proportionality standard can be used to assess the validity of administrative action infringing upon fundamental freedoms. However, the courts have till date used the proportionality standard to only test the infringement of a substantive right such as the right to privacy protected under Article 21, and the freedoms protected under Article 19. Courts have been using a vague and unstructured standard of the reasonableness test to assess the validity of limitations on procedural due process. We are of the opinion that the standard of proportionality must be used to assess the reasonableness of the limitation of procedural rights as well. The courts have to undeniably undertake a balancing exercise while deciding if the limitation on the right is valid. A three‑Judge Bench of the Supreme Court of India in M.H. Hoskot v. State of Maharashtra observed that procedural reasonableness does not have an abstract standard of reasonableness. It must be assessed on the touchstone of numerous factors. The factors list the considerations that are undertaken in the balancing stage.
id_1267	2	The nature of the right infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, all provide the basis for considering the reasonableness of a particular provision. The procedure embodied in the Act has to be judged in the context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions and the prevailing conditions. Om Kumar (n 16); Teri Oat Estates (P) Ltd. v. Union Territory, Chandigarh, (2004) 2 SCC 130., The judgments of the Supreme Court of India in Justice K.S. Puttaswamy (supra) and Modern Dental College & Research Centre v. State of Madhya Pradesh, establishing the proportionality standard to test the reasonableness of the infringements on substantive rights, do not preclude the application of the proportionality standard to test the reasonableness of limitations on procedural guarantees. The standard of proportionality infuses a culture of justification, where the State has to discharge the burden of justifying that its action was reasonable and not arbitrary. Once the principle of reasonableness is read into procedural requirements, there is no reason for the Supreme Court of India to use different standards to test the reasonableness of substantive and procedural actions., F. Infringement of MBL's right to a fair hearing. MBL contends that the principles of a reasoned order, disclosure of relevant material, and open justice have been infringed by the order of the Ministry of Information and Broadcasting and the judgment of the High Court of Punjab and Haryana at Chandigarh. It is contended that the abrogation of these three principles infringes upon the right to a fair hearing which constitutes the core of the procedural requirements protected under Article 21. (i) Reasoned order: In the present case, the notice to show cause states that the Ministry of Home Affairs has denied security clearance to MBL to operate its channel, Media One, but does not mention the reasons for the denial. Further, the order dated 31 January 2022 denying the permission for renewal of licence also does not provide reasons for the denial of security clearance. In such circumstances, MBL was put in a precarious position without any actual recourse to defend the case against them. (ii) Disclosure of material relevant to the decision: The Ministry of Home Affairs declined to disclose any material that was relevant to its decision. The claim of non‑disclosure of relevant documents by the Ministry of Home Affairs was not limited to a few top‑secret documents; rather, all documents that were relevant to the decision have not been disclosed. (iii) Open justice: The Ministry of Home Affairs disclosed the documents in a sealed cover to the High Court. The High Court dismissed the writ petition by relying on the material that was disclosed solely to it in sealed cover. The relevant material is not removed from the proceedings; it is only removed from the affected party's docket. The party defending its actions, which most often is the State, and the adjudicating authority rely on the material while making arguments and while reaching a finding respectively., An ancillary question that must be answered at this stage is whether the three alleged procedural infractions have to be individually or collectively assessed to decide if the right to a fair and reasonable hearing is violated. We are of the opinion that the High Court of Punjab and Haryana at Chandigarh must determine if the procedure that was followed as a whole is fair and reasonable. After the judgment of this Court in Maneka Gandhi (supra), where the Supreme Court of India prioritised the process (and the effect of the process) as opposed to the outcome (and the objective of the outcome), it is sufficient if the affected party proves that the procedure followed by the adjudicating authority was not procedurally fair and reasonable without any reference to the impact on the outcome due to non‑compliance. While doing so, it is well within the power of the claimant to argue that multiple facets of the right to a fair trial were infringed. However, the court, while undertaking the exercise of assessing the validity of such a claim, must view violation claims from a holistic procedural perspective. The requirement of procedural fairness does not impose a uniform, unvarying standard to be applied irrespective of the context, facts, and circumstances. Adjudicatory bodies must be provided sufficient flexibility in deciding procedural requirements. As observed above, a non‑compliance of every facet and component of natural justice does not render the procedure unreasonable. The claimant must prove that the effect of non‑compliance of a component of natural justice is so grave that the core of the right to a fair trial is infringed while making an argument from a component‑facet perspective. The procedure followed must not infringe upon the core which secures reasonableness of a procedure., The appellants have discharged their burden by proving that the non‑compliance of the above three principles infringed the core of the principles of natural justice: the right to a fair and reasonable hearing. The principles of natural justice ensure that justice is not only done but it is seen to be done as well. A reasoned order is one of the fundamental requirements of fair administration. It holds utmost significance in ensuring fairness; scholars now term it as the third principle of natural justice. The rule of a reasoned order serves five important purposes. Firstly, it ensures transparency and accountability. It places a check on arbitrary exercise of power. Lord Denning observed that in giving reasons lies a whole difference between a judicial decision and an arbitrary one. Justice Bhagwati observed in Maneka Gandhi (supra) that the rule is designed to secure the rule of law and the court should not be too ready to eschew it in its application to a given case. Secondly, non‑reasoned orders have the practical effect of placing the decision out of the purview of judicial review. A non‑reasoned order limits the power of the courts to exercise judicial review because the scope of judicial review is not limited to the final finding on law or facts but extends to the reasons to arrive at the finding. A limitation on the right to appeal necessarily means that the scope of judicial review is restricted. Thirdly, articulation of reasons aids in arriving at a just decision by minimizing concerns of arbitrary state action. It introduces clarity of thought and eschews irrelevant and extraneous considerations. Fourthly, it enhances the legitimacy of the institution because decisions will appear to be fair. There is a higher probability that the finding through a reasoned order is just. Fifthly, reasoned orders are in furtherance of the right to information and the constitutional goal of open government. Secrecy broods partiality, corruption and other vices that are antithetical to a governance model that is premised on the rule of law., On the facts of the case, the Ministry of Information and Broadcasting has denied to disclose even the summary of the reasoning denying security clearance. This has necessarily left MBL with no remedy. It is crucial to note that the freedom of press which is protected under Article 19(1)(a) has effectively been trumped without providing them with an effective and reasonable avenue to challenge the decision. This infringes upon the core of the right to a fair hearing. The appellants have proved that the disclosure of reasons is necessary for them to have a reasonable hearing. The reply to the show cause notice and the writ petition challenging the validity of the revocation order also indicate that the appellants have been constrained in a situation where they are unable to effectively lay a challenge against the decision., The Ministry of Home Affairs disclosed the material forming the opinion for denying security clearance solely to the High Court of Punjab and Haryana at Chandigarh. The High Court, instead of deciding if any other less restrictive but equally effective means could have been employed, straight away received the material in a sealed cover without any application of mind. It is now an established principle of natural justice that relevant material must be disclosed to the affected party. This rule ensures that the affected party is able to effectively exercise their right to appeal. When the State Government claims non‑disclosure on the ground of public interest under Section 124 of the Evidence Act, the material is removed from the trial itself. As opposed to this method, when relevant material is disclosed in a sealed cover, two injuries are perpetuated. First, the documents are not available to the affected party. Second, the documents are relied upon by the opposite party (which is most often the State) in the course of the arguments, and the court arrives at a finding by relying on the material. In such a case, the affected party does not have any recourse to legal remedies because it would be unable to prove or disprove any inferences from the material before the adjudicating authority. This form of adjudication perpetuates a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge. The affected party would be unable to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. The right to seek judicial review, which has now been read into Articles 14 and 21, is restricted. A corresponding effect of the sealed‑cover procedure is a non‑reasoned order., In Commander Amit Kumar Sharma v. Union of India, Justice D.Y. Chandrachud, speaking for the Supreme Court of India, commented on the procedural infirmities which the procedure of sealed cover perpetuates: 'The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with reasonable probability influence the decision of the authority, must be disclosed. A one‑sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice.' The judgment further observed that the non‑disclosure of relevant material to the affected party and its disclosure in a sealed cover to the adjudicating authority sets a dangerous precedent, making the process vague and opaque and bestowing absolute power in the hands of the adjudicating authority., Upon a perusal of the material in sealed cover, the Single Judge of the High Court of Punjab and Haryana at Chandigarh observed that the files submitted by the Ministry of Home Affairs indicated that the Committee of Officers took note of inputs provided by intelligence agencies and found that the inputs were of a serious nature and fell under the security rating parameters. The Single Judge noted that in those circumstances the Committee of Officers advised not to renew the licence. The Single Judge did not provide any clarity on the nature of the inputs that were of a serious nature, nor mention the security rating parameters that were relied upon. A non‑reasoned order perpetuates the non‑application of judicial mind in assessing the veracity of the inputs. The nexus of the reasons to the order cannot be adjudicated upon if the reasons are not disclosed., On appeal, the Division Bench of the High Court of Punjab and Haryana at Chandigarh observed that although the nature and gravity of the issue is not discernible from the files, there are clear indications that the security of the State and public order would be impacted if permission granted to MBL to operate the channel is renewed. The Division Bench also did not disclose the reasons for the denial of security clearance. There is no explanation of what weighed in the mind of the court leading it to hold that the denial of clearance was justified despite observing that the nature and gravity of the issue is not discernible. The sealed‑cover procedure followed by the Single Judge and the Division Bench has necessarily rendered the appellants' right to writ remedies, described as the heart and soul of the Constitution and a basic feature of the Constitution, a dry parchment. The non‑disclosure of reasons for the denial of security clearance, which is the sole ground for denying the permission to renew the licence, and the disclosure of relevant material only to the court in a sealed cover has rendered the appellants' procedural guarantees under the Constitution otiose. The appellants' right to writ remedies has been denied through a formalistic order by the High Court. The procedure that was followed by the High Court has left the appellants in a maze where they are attempting strenuously to fight in the dark. The non‑disclosure of reasons for denial of security clearance to the appellants and the disclosure solely to the Court in a sealed cover has restricted the core of the principles of natural justice – the right to a fair and reasonable proceeding., G. Whether the infringement of MBL's right to a fair hearing is justified. The Additional Solicitor General, in the statement filed before the High Court of Punjab and Haryana at Chandigarh, stated that the reasons for denial of security clearance cannot be disclosed because (i) intelligence inputs on the basis of which security clearance was denied are secret and sensitive; and (ii) in the interest of national security. It has thus been submitted that the principles of natural justice stand abrogated because the decision is based on intelligence inputs which are sensitive in nature from security and intelligence agencies, and because these inputs are in the interest of national security. The Union of India has relied on the judgments of this Court in Ex‑Armymen's Protection Services (supra) and Digi Cable Network (supra) to contend that the principles of natural justice will not apply when considerations of national security are involved. The validity of this argument has to be assessed before deciding if the State has discharged its burden justifying that the infringements on procedural guarantees are reasonable., G.1 Natural justice and national security: decisions in Digi and Ex‑Armymen. In Ex‑Armymen's Protection Services (supra), the appellant was granted the business of ground handling services. Rule 92 of the Aircraft Rules 1937 stipulates that the business shall be provided subject to security clearance. The appellant was informed that security clearance was withdrawn on grounds of national interest. The appellant initiated proceedings under Article 226 of the Constitution before the High Court of Patna. The writ petition was disposed with a direction that the appellant should be furnished materials that were relied on by the Central Government for withdrawal of security clearance. However, the Central Government passed an order that the documents in the file were classified as secret and could not be shared with the appellant. The documents were placed in a sealed cover before the Single Judge of the High Court. On perusal of the documents, the Single Judge directed that a gist of the allegations be disclosed. The Division Bench of the High Court allowed the appeal and held that the materials could not be disclosed to the appellant in national interest. The appellant initiated proceedings under Article 136. A two‑Judge Bench of the Supreme Court of India dismissed the proceedings. Justice Kurian Joseph, writing for the Bench, observed that if concerns of national security are involved, then the party cannot insist on the strict observance of the principles of natural justice. It was further observed that it is open to the Court to satisfy itself that the claim of the government that national security is involved is indeed true. The Supreme Court of India relied on the judgments in Zamora and Secretary of State for Home Department v. Rehman to hold that deference must be given to the Government's decision when it is of the opinion that issues of national security are involved. However, it was held that the Court may call for records to satisfy itself that issues of national security are involved. Further, the judgment in Council of Civil Service Unions v. Minister of Civil Service was relied on to hold that strict observance of the principles of natural justice may not be possible when national security is involved. The Court noted that what is in the interest of national security is not a question of law but a matter of policy, and it should be left to the executive., In Digi Cable Network (supra), the permission that was granted to the appellant for operating as a Multi‑Systems Operator in the Digital Addressable System was cancelled on the ground that the Ministry of Home Affairs denied security clearance to the appellant. The High Court rejected the challenge to the order of cancellation. The Additional Solicitor General filed a copy of the reasons for the denial of security clearance in a sealed cover before the Supreme Court of India. A two‑Judge Bench of the Supreme Court of India dismissed the appeal by relying on the judgment in Ex‑Armymen's Protection Services (supra), holding that the appellant was not entitled to claim any prior notice before the order cancelling the permission was passed. The Court further held that the principles of natural justice were not violated in this case in the light of the law laid down by the Supreme Court of India in Ex‑Armymen's Protection Services., The observation in Ex‑Armymen's Protection Services that what is in national security is a question of policy and not law for the courts to decide was affirmed in the majority opinion in Justice K.S. Puttaswamy (supra) while deciding on the constitutional validity of Section 33 of the Aadhaar Act., The Supreme Court of India in Ex‑Armymen's Protection Services referred to a series of judgments from the courts in the United Kingdom to elucidate the principle that the Government is best placed to decide whether national security concerns are involved and that principles of natural justice may not be complied with when issues of national security are involved. In The Zamora (supra), a ship that was captured contained contraband belonging to the Austrian Government and was imported into Sweden. The right to requisition exists in international law, but vessels must be urgently required in the defence of the realm or for matters involving national security. The Privy Council observed that statements on oath of the proper officer of the Crown that vessels or goods are urgently required for defence of the realm, prosecution of war, or other matters involving national security are conclusive of the fact, and that those responsible for national security must be the sole judges of what the national security requires. In Council of Civil Service Unions (supra), the Minister of Civil Service released an instruction that employees of the Government Communications Headquarters could not be part of trade unions. The decision was defended on the ground that prior consultation would involve a real risk of disruption that would threaten national security. The House of Lords observed that the decision of whether the requirements of national security outweigh the duty of fairness is for the Government and not the courts, but qualified that the Government is under an obligation to produce evidence that the decision was based on grounds of national security if the decision is successfully challenged., Lord Scarman, in his opinion, observed that the observations in The Zamora were not indicative of an abdication of judicial function but indicated that evidence was required by the Court. He stated that when a question as to the interest of national security arises in judicial proceedings, the court has to act on evidence. In some cases a judge or jury is required by law to be satisfied that the interest is proved to exist; in others, the interest is a factor to be considered in the review of the exercise of an executive discretionary power. Once the factual basis is established by evidence so that the court is satisfied that the interest of national security is a relevant factor, the court will accept the opinion of the Crown or its responsible officer unless it is possible to show that the opinion was one which no reasonable minister could have held. There is no abdication of the judicial function, but there is a common‑sense limitation recognised by the judges as to what is justiciable, consistent with the modern case law of judicial review.
id_1267	3	On a perusal of the evidence, it was held that work at the headquarters involved matters of grave national security, and that if the employees and trade unions were consulted before the decision then the security would have been compromised. Lord Scarman observed that the Minister did not consult the employees because she feared that a union‑organised disruption of services could occur. It was held that this conclusion by the Minister could have been reached reasonably., In Rehman (supra), the appellant, a Pakistani national whose parents were British citizens, applied for indefinite leave to remain in the United Kingdom. The Secretary of State refused his application on the ground that he was involved with a terrorist organization. The Secretary of State also added that his deportation from the United Kingdom would be conducive to public good and in the interests of national security. The Special Immigration Appeals Commission allowed the appeal against the decision of the Secretary of State observing that the standard of civil balance of probabilities had not been satisfied. The Commission observed that though it was not disputed that the appellant provided sponsorship, information and advice to persons going to Pakistan for training which may have included militant training, it could not be concluded that these actions constituted a threat to national security. The Court of Appeal allowed the appeal against the judgment of the Commission., The appeal against the judgment of the Court of Appeal was dismissed by the House of Lords. Lord Slynn of Hadley observed in his opinion that where the liberty of the person and the opportunity of his family to remain in the country are at stake, and when specific actions which have already occurred are relied on, then it is fair that the civil standard of proof is applied; when the Secretary of State decides that a person must be deported for public good, he is entitled to have precautionary and preventive principles. There must be material on the basis on which he can reasonably and proportionately conclude that there is a real possibility that the activities harm national security; the Secretary of State is in the best position to assess the security threat. Due weight must be given to his assessment. However, his decision is open to review on the above two grounds; and it was held in Council of Civil Service Unions (supra) that if it is contested that the deportation was not based on the grounds of national security, then the Government must produce evidence to satisfy the Supreme Court of India that the decision is based on the grounds of national security. However, that is not the issue in the present case., Lord Hoffman in his opinion observed that the Commission cannot differ from the opinion of the Secretary of State on the meaning of national security. That is, the question of whether, for example, the promotion of terrorism in a foreign country by a United Kingdom resident would be contrary to the interests of national security is for the Government to decide. Relying on the judgment in Council of Civil Service Unions (supra), it was held that the decision on the validity of deportation is not conceded to the Secretary of State. The Commission has to determine the factual basis for the executive's opinion that deportation would be in the interests of national security; whether the decision of the Secretary of State was one which a reasonable minister would have arrived at; and any other legal defence that was available to the appellant., This does not mean that the whole decision on whether deportation would be in the interests of national security is surrendered to the Home Secretary, so as to defeat the purpose for which the Commission was set up. It is important neither to blur nor to exaggerate the area of responsibility entrusted to the executive. The precise boundaries were analysed by Lord Scarman, by reference to Chandler's case in his speech in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 406. His analysis shows that the Commission serves at least three important functions which were shown to be necessary by the decision in Chahal. First, the factual basis for the executive's opinion that deportation would be in the interests of national security must be established by evidence. It is therefore open to the Commission to say that there was no factual basis for the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir. In this respect the Commission's ability to differ from the Home Secretary's evaluation may be limited by considerations inherent in an appellate process but not by the principle of the separation of powers. The effect of the latter principle is only, subject to the next point, to prevent the Commission from saying that although the Home Secretary's opinion that Mr Rehman was actively supporting terrorism in Kashmir had a proper factual basis, it does not accept that this was contrary to the interests of national security. Secondly, the Commission may reject the Home Secretary's opinion on the ground that it was one which no reasonable minister advising the Crown could in the circumstances reasonably have held. Thirdly, an appeal to the Commission may turn upon issues which at no point lie within the exclusive province of the executive. A good example is the question, which arose in Chahal itself, as to whether deporting someone would infringe his rights under article 3 of the Convention because there was a substantial risk that he would suffer torture or inhuman or degrading treatment. The European jurisprudence makes it clear that whether deportation is in the interests of national security is irrelevant to rights under article 3. If there is a danger of torture, the Government must find some other way of dealing with a threat to national security. Whether a sufficient risk exists is a question of evaluation and prediction based on evidence. In answering such a question, the executive enjoys no constitutional prerogative., The following principles emerge from the above judgments: The party affected by the decision must establish that the decision was reached by a process that was unfair without complying with the principles of natural justice; the State can claim that the principles of natural justice could not be followed because issues concerning national security were involved; the Supreme Court of India has to assess if the departure was justified. For this purpose, the State must satisfy the Supreme Court of India that firstly, national security is involved; and secondly, whether on the facts of the case, the requirements of national security outweigh the duty of fairness. At this stage, the court must make its decision based on the component of natural justice that is sought to be abrogated; and while satisfying itself of the national security claim, the Supreme Court of India must give due weightage to the assessment and the conclusion of the State. The Supreme Court of India cannot disagree on the broad actions that invoke national security concerns – that is, a question of principle such as whether preparation of terrorist activities by a citizen in a foreign country amounts to a threat to national security. However, the courts must review the assessment of the State to the extent of determining whether it has proved through cogent material that the actions of the aggrieved person fall within the principles established above., The contention of the respondent that the judgment of this Supreme Court of India in Ex‑Armymen’s Protection Services (supra) held that the principles of natural justice shall be excluded when concerns of national security are involved is erroneous. The principle that was expounded in that case was that the principles of natural justice may be excluded when on the facts of the case, national security concerns outweigh the duty of fairness. Thus, national security is one of the few grounds on which the right to a reasonable procedural guarantee may be restricted. The mere involvement of issues concerning national security would not preclude the State’s duty to act fairly. If the State discards its duty to act fairly, then it must be justified before the Supreme Court of India on the facts of the case. Firstly, the State must satisfy the Supreme Court of India that national security concerns are involved. Secondly, the State must satisfy the Supreme Court of India that an abrogation of the principles of natural justice is justified. These two standards that have emerged from the jurisprudence abroad resemble the proportionality standard. The first test resembles the legitimate aim prong, and the second test of justification resembles the necessity and the balancing prongs., Application of the proportionality standard. Having held that the concerns of national security do not permit an absolute abrogation of the principles of natural justice, we are now required to assess if the restriction on procedural guarantees is reasonable on an application of the proportionality standard. The proportionality standard as laid down by the Supreme Court of India in Modern Dental (supra) is as follows: The measure restricting a right must have a legitimate goal; the measure must be a suitable means for furthering this goal; the measure must be least restrictive and equally effective; the measure must not have a disproportionate impact on the right holder., Legitimate Goal Stage. This prong requires an analysis of the legitimacy of the aim that restricts rights. The aim must be of sufficient importance to override fundamental rights. At this stage, the State is required to discharge the burden of proving that the action is in furtherance of an aim that is legitimate. The State is also required to discharge the additional burden of proving that the action is indeed in furtherance of the legitimate aim that is contended to be served. The Union of India claims that the reasons and the documents cannot be disclosed in the interest of national security and confidentiality of intelligence inputs. The State at this stage is required to prove that confidentiality and national security are legitimate aims, and that the purposes of confidentiality and national security are served by non‑disclosure., At this stage, the Supreme Court of India has to examine the threshold question whether in a constitutional democracy, a fundamental right can be limited to realise the purpose underlying the law or action. The criteria for determining proper purpose differs from one legal system to another. For instance, the South African Constitution prescribes a general limitation clause which prescribes the general grounds to limit all fundamental rights. The Indian Constitution does not prescribe a general limitations clause. A few of the provisions in Part III such as Article 19 and 25 have a specific purpose‑based limitation clause. This does not mean that the provisions that do not have an express limitation clause are absolute. Other rights that do not have an express limitation clause can be limited through an implied reading of the provisions of the Constitution. Our constitutional jurisprudence does not accept the theory that constitutionally protected rights live and survive in contextual isolation. Each is linked to the other. Hence, the entire text has to evolve in meaning and content with the canvas which bears the tapestry., Aharon Barak argues that one of the accepted grounds of proper purpose for the limitation of rights is public interest (or public good). Though the existence of such a purpose is never in contention, the content of public interest is unclear. Public interest, he argues, must reflect the notions of justice and tolerance shared by the society. The courts while identifying if the purpose is legitimate must not fall into the den of dominant impulses but instead prioritise purposes in furtherance of constitutional ideals and values. However, the court must necessarily be cautious to not cross the thin line between adjudication and policy making. Certain purposes are absolutely antithetical to public interest in a constitutional democracy. The Constitution, as we all know, is a living document. Its meaning and the values it espouses develop with time. The court while determining the purpose must be cognizant of such developments and must read the Constitution in the sociopolitical context bearing in mind both history and the prospect of societal change at the time of interpretation., The Constitution prescribes national security as one of the grounds which can be used to reasonably restrict rights expressly in the context of Article 19. Further, other provisions of the Constitution prescribe a departure from principles during emergency situations that impact national security. Similarly, informational privacy and confidentiality are now values that have been read into the Constitution, particularly in view of the decision of a nine‑Judge Bench in Justice K.S. Puttaswamy (supra) and the enactment of the Right to Information Act 2005. Thus, confidentiality and national security are legitimate goals recognised by the Constitution for the purpose of limiting procedural rights., Confidentiality and IB Reports. The State has to now prove that these are the two purposes that the state action seeks to serve. The Ministry of Home Affairs in response to the Ministry of Broadcasting's request for disclosure of reasons for denial of security clearance states that the reasons cannot be disclosed because reports from investigative agencies are secret in nature. The Ministry of Home Affairs has made a general claim that all reports of the investigative agencies are confidential. We are unable to accept such an argument. Investigative agencies such as the Central Bureau of Investigation and Intelligence Bureau are required to conduct background checks on innumerable personnel and entities for a multitude of reasons. The interaction between private individuals and the State has increased by virtue of which the involvement of intelligence agencies has also proliferated. The reports of the intelligence agencies are not merely fact‑finding reports. As it would be evident from the extractions of the material below, reports of investigative agencies make observations and provide inferences on the conduct of individuals which are then relied upon by the decision‑making authority. To argue that reports of the intelligence agencies may contain confidential information is one thing but to argue that all such reports are confidential is another. Such an argument is misplaced and cannot be accepted on the touchstone of constitutional values. The reports by investigative agencies impact decisions on the life, liberty, and profession of individuals and entities, and to give such reports absolute immunity from disclosure is antithetical to a transparent and accountable system., National Security. The Ministry of Home Affairs also opined that the relevant material must not be disclosed in the interest of national security. The issue before us is whether the Supreme Court of India can judicially review this inference, and if it can, the extent of such review. We must refer to the jurisprudence on the extent of judicial review of national security claims before assessing if the action serves the purpose of national security. It is now settled that the Supreme Court of India does not resort to a hands‑off approach when it is claimed that national security implications are involved. In Manohar Lal Sharma v. Union of India, a three‑Judge Bench of this Court held that though the extent of judicial review in matters concerning national security is limited, it does not mean that the State gets a free pass every time the argument of national security is made. This Court held that the State must plead on affidavit and prove that disclosure of information would injure national security. The Court observed: Of course, the Respondent – Union of India may decline to provide information when constitutional considerations exist, such as those pertaining to the security of the State, or when there is a specific immunity under a specific statute. However, it is incumbent on the State to not only specifically plead such constitutional concern or statutory immunity but also to prove and justify the same in Court on affidavit. The Respondent – Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept in secret as their divulgence would affect national security concerns. They must justify the stand that they take before a Court. The mere invocation of national security by the State does not render the Court a mute spectator. The issue is not whether the inference that national security concerns are involved is judicially reviewable. It is rather on the standard of proof that is required to be discharged by the State to prove that national security concerns are involved. It is necessary that we understand the meaning and implications of the term national security before embarking on an analysis of the issue. This Court has held that it is not possible to define national security in strict terms. National security has numerous facets, a few of which are recognised under Article 19(2) of the Constitution. In Ex‑Armymen’s Protection Services (supra), a two‑Judge Bench of this Court observed that the phrase national security would include factors like socio‑political stability, territorial integrity, economic stability and strength, ecological balance, cultural cohesiveness and external peace. Justice Patanjali Sastri writing for the majority in Romesh Thappar v. State of Madras demarcated the fields of public order and security of State as they find place in Article 19 of the Constitution. This Court held that the expression security of the State was defined to include a distinct category of those offences against public order which aim at undermining the security of the State or overthrowing it. In Ram Manohar Lohia v. State of Bihar, Justice M. Hidayatullah distinguished the expressions security of State, law and order, and public disorder. He observed that disorders affecting the security of State are more aggravated than disorders that affect public order and law and order. It will thus appear that just as public order in the rulings of this Court was said to comprehend disorders of less gravity than those affecting security of State, law and order also comprehends disorders of less gravity than those affecting public order. One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents security of State. It is then easy to see that an act may affect law and order but not public order just as an act may affect public order but not security of the State. By using the expression maintenance of law and order the District Magistrate was widening his own field of action and was adding a clause to the Defence of India Rules., Thus, the expression national security does not have a fixed meaning. While courts have attempted to conceptually distinguish national security from public order, it is impossible and perhaps unwise to lay down a textbook definition of the expression which can help the courts decide if the factual situation is covered within the meaning of the phrase. The phrase derives its meaning from the context. It is not sufficient for the State to identify its purpose in broad conceptual terms such as national security and public order. Rather, it is imperative for the State to prove through the submission of cogent material that non‑disclosure is in the interest of national security. It is the Supreme Court of India's duty to assess if there is sufficient material for forming such an opinion. A claim cannot be made out of thin air without material backing for such a conclusion. The Court must determine if the State makes the claim in a bona fide manner. The Court must assess the validity of the claim of purpose by determining whether there is material to conclude that the nondisclosure of the information is in the interest of national security; and whether a reasonable prudent person would arrive at the same conclusion based on the material. The reasonable prudent person standard which is one of the lowest standards to test the reasonableness of an action is used to test national security claims by courts across jurisdictions because of their deferential perception towards such claims. This is because courts recognise that the State is best placed to decide if the interest of national security would be served. The Court allows due deference to the State to form its opinion but reviews the opinion on limited grounds of whether there is nexus between the material and the conclusion. The Court cannot second‑guess the judgment of the State that the purpose identified would violate India’s national security. It is the executive wing and not the judicial wing that has the knowledge of India’s geo‑political relationships to assess if an action is in the interest of India’s national security., We now proceed to assess if on the facts of the case, there is sufficient material to conclude that the action is in furtherance of the interests of confidentiality and national security, as contended., Opening the sealed cover. In 2010, Media Broadcast Ltd (MBL) applied for permission to uplink and downlink the news and current affairs television channel Media One. According to the Uplinking and Downlinking Guidelines, the application would be sent for security clearance if the applicant is eligible according to the information provided. MBL’s application was sent for security clearance. The Central Bureau of Investigation remarked that there was nothing adverse that was found on the record against MBL. However, the Intelligence Bureau made the following adverse remarks against MBL: MBL is closely associated with Madhyamam Daily which has links to Jamaat‑e‑Islami; the tenor of articles carried out by Madhyamam Daily was of an adverse nature from the security perspective; a few of the key executives of the applicant had associated with JEI‑H; the proposed TV channel may espouse the ideology of JEI/H if permitted to operate., IB also submitted a note on the alleged role and activities of JEI‑H. The note stated that JEI‑H was formed in 1941 with the objective of securing the rule of Allah. After the partition of the Indian sub‑continent, JEI formed units in India, Pakistan, and Kashmir. JEI‑H is opposed to secularism, democracy, and socialism; JEI‑H was banned in 1955 for anti‑national activities in Kashmir, the ban was lifted in 1955; again banned in 1975 under the Defence and Internal Security Rules 1971, the ban was lifted in 1977; and in 1992 under the Unlawful Activities (Prevention) Act 1967. The Supreme Court nullified the ban in 1994; JEI‑H plays a crucial role in attracting and channelising foreign funds to Islamic institutions in the country through official and clandestine channels; JEI‑H through its publication, Madhyamam Daily, has been critical of India’s foreign policy, besides indulging in anti‑US propaganda. It has also been critical of security agencies and judiciary and often presents news from a communal perspective. Senior functionaries of JEI, Kerala are learnt to be mobilising funds through hawala channels from the Gulf for launching a TV Channel., The Ministry of Home Affairs considered the report and noted that these remarks were not so strongly adverse in nature to deny permission on the grounds of security, especially when the applicants were operating a newspaper with twelve editions. The IB report on Madhyamam Daily on the tenor of the articles is extracted below: Madhyamam Daily brings out 12 editions (published from 6 places in Kerala, 2 in Karnataka and 4 places abroad in Saudi Arabia, Qatar, Bahrain, and Dubai), which are published by JEI/H run Islamic Publishing House, Kozhikode, Kerala. The newspapers which have a combined circulation of approximately 1.75 lakh are being used by JEI/H to air its views on various issues affecting the Muslim community. It has been highlighting the alleged discrimination against Muslims in India. Recently it had alleged targeted attack on [ ] who is the prime accused in the Bangalore bomb blast, and his family members and vehemently criticised police action against [ ] for her alleged role in the Kalamassery bus burning case and has contrasted it with the alleged soft attitude taken against Hindu fundamentalists responsible for bomb blasts in the country and Babri Masjid demolition., In 2014, when security clearance was again sought by MBL for uplinking and downlinking TV Channels Media‑One Life and Media One Global, IB submitted a report stating that fresh enquiries corroborated the issues that were flagged earlier. The fresh enquiries were based on a scrutiny of the contents of programmes aired in the recent past by Media One TV. On a scrutiny of the contents of the programmes that were telecast by Media One, IB opined that Media‑One tends to propagate the ideology of JEI‑H; portrays security forces and intelligence agencies of India in a bad light; is over‑critical of Government policies, especially vis‑à‑vis its handling of law and order issues involving minorities and militancy., MHA sought fresh comments from IB after receiving the above report. In the subsequent report, IB made three findings. Firstly, that the major source of funding for MBL is through shares in which JEI/H cadres and sympathisers have reportedly invested. IB submitted a comprehensive list of shareholders who have invested in MBL. We have not extracted the list of the shareholders to protect their privacy and confidentiality. Secondly, that enquiries have confirmed that Media One airs provocative programmes such as: on 5 August 2015, the channel reportedly made attempts to denigrate the Indian Judiciary for alleged adoption of double standards in dealing with terrorism‑related cases; it blames US and Israel for the misery of the Muslims across the world; and a publication of MBL Prabodhanam Weekly propagates fundamental Islamic viewpoint through its editorials., On 24 July 2014, a Committee of Officers recommended that security clearance may be denied with respect to the proposals to uplink and downlink Media‑One Life and Media One Global, and security clearance may be withdrawn to MBL based on the adverse remarks by IB in 2011 and 2014. MHA sought fresh comments and multiple Committee of Officers meetings were held to discuss the same. On 26 August 2015, the Ministry of Information and Broadcasting granted permission to uplink and downlink Media One Life., However, on 22 January 2015, Committee of Officers recommended denial of security clearance to two proposals: (A) to uplink/downlink non‑news and current affairs TV channel Media‑One Life and Media‑One Global; (B) for the appointment of two directors. It was noted that the security clearance granted in 2011 may not be withdrawn. The minutes of the meeting of Committee of Officers note as follows: The Ministry of Home Affairs had issued policy guidelines for assessment of proposal for national security on 30 June 2015 which clearly prescribe security‑relating parameters for assessment of proposals. The Committee of Officers felt that adverse inputs against the company and its Directors are serious in nature (linkage with radical organisation) and falls under security rating parameters mentioned in Sl No. 13 of Ministry of Home Affairs Policy guidelines issued vide Office Memorandum dated 30 June 2015. Further, Committee of Officers observed that the policy mandates that the security clearance granted by the Ministry of Home Affairs will usually have prospective effect unless otherwise decided by the Ministry concerned in the discharge of its mandate. Therefore, the security clearance granted in 2011 may not be withdrawn. However, the future expansion of the company may be stopped in view of the adverse inputs., MHA denied security clearance for these two proposals based on the recommendation of the Committee of Officers. Though the order of MHA denying security clearance on such recommendation is not annexed to the file submitted, it finds mention in the internal notes on the file. It seems that the MHA was not aware that the Ministry of Information and Broadcasting had by then already granted the permission to uplink and downlink Media One. Further, in spite of the observations of Committee of Officers that the revocation may not be retrospective, the Ministry of Information and Broadcasting issued a show‑cause notice to MBL for revocation of the permission granted to Media One and Media One Life. The Ministry of Information and Broadcasting requested MHA to consider the response of MBL against the show‑cause notice. In this regard, MHA observed that though it had not withdrawn security clearance of the existing News and Current Affairs Channel Media One, the actions of the Ministry of Information and Broadcasting were in compliance with the guidelines dated 30 June 2015. It is crucial to note that as on the date when security clearance was denied by MHA, both Media One and Media One Life were existing news channels.
id_1267	4	Since the Ministry of Home Affairs has not withdrawn security clearance of the existing News and Current Affairs TV channel Media One, it is the Ministry of Information and Broadcasting that has to justify its action of issuing a show‑cause notice for withdrawal of permission. At the same time, since the Ministry of Home Affairs has given leverage to the nodal Ministry in the guidelines dated 30‑06‑2015 to take action for retrospective application of the guidelines in the discharge of its mandate and that the Ministry of Information and Broadcasting has taken action in accordance with its own guidelines, we may not state that the Ministry of Home Affairs has not withdrawn security clearance granted vide Office Memorandum dated 17‑02‑2011. This would give the impression that the action of the nodal Ministry was not in conformity with Ministry of Home Affairs guidelines. We may simply mention the proposals to which security clearance was denied on 27‑01‑2016, and state that the Ministry of Information and Broadcasting has issued a show‑cause notice in discharge of its mandate and may defend its action. As regards sharing of the reason for denial of clearance, it is informed that the denial is based on inputs from intelligence agencies which are secret in nature and cannot be disclosed to the applicant. The response of the Ministry of Home Affairs further notes that the security clearance was denied based on inputs from intelligence agencies which are secret and cannot be disclosed to the applicant., On 11 September 2019, the Ministry of Information and Broadcasting revoked the uplinking and downlinking permission which was granted to Media One Life. Media Broadcast Ltd (MBL) submitted a representation against the revocation. The Ministry of Home Affairs requested the Intelligence Bureau to furnish comments on the representation of MBL. The Intelligence Bureau concluded that the inputs attract parameters (Serial Numbers 20 and 21) stipulated by the Guidelines issued on 25 June 2018 for assessment of proposals received for national security clearance by the Ministry of Home Affairs. The Intelligence Bureau made the following two adverse remarks: Main source of income – MBL’s main source of income is the shares invested by cadres of Jamaat‑e‑Islami Hind (JEI‑H) through its sympathisers. Most of the Board of Directors are JEI‑H sympathisers; and Anti‑establishment stance – Media One channel is learned to be espousing an anti‑establishment stance on various issues including the Unlawful Activities (Prevention) Act, Armed Forces (Special Power) Act, developmental projects of the Government, encounter killings, Citizenship (Amendment) Act, and the Citizenship Amendment Act/National Population Register/National Register of Citizens., The 2018 Guidelines stipulate that national security covers a wide range of issues but the principal focus, inter alia, is on (i) matters relating to preserving the unity, territorial integrity and sovereignty of the nation and protecting the life and liberty of its citizens; and (ii) matters vital to economic security, protection of critical infrastructure, and development and prosperity of the country and its citizens. Clause 3.2 stipulates that sector‑sensitive proposals emanating from, inter alia, the Ministry of Information and Broadcasting shall be assessed in accordance with the Guidelines. According to Clause 4, national security verification will be done through record checks, field enquiries and other means for the vetting of the company, entity and the persons associated with the same. The provision stipulates that on receipt of a proposal from the concerned ministry (in this case, the Ministry of Information and Broadcasting), the Ministry of Home Affairs would seek inputs from security and law‑enforcement agencies. Clause 5 stipulates that the intelligence and law‑enforcement agencies will conduct an assessment based on the list of security parameters set out in Annexure C. The assessment will be done on the basis of the reported threat, probability of materialisation and overall impact. Annexure C prescribes the security parameters. Serial Number 13 of the Annexure reads: Terror funding, financial linkage with underworld, drug cartels, crime syndicates. Serial Number 20 reads: Involvement in religious proselytisation activities in India. Serial Number 22 reads: Intentional or systemic infringement of safety concerns or security systems endangering the safety of the public., Media Broadcast Ltd filed an application for renewal of permission to uplink and downlink the Media One channel. The Ministry of Information and Broadcasting forwarded the application for renewal to the Ministry of Home Affairs for security clearance. The Ministry of Home Affairs noted that there is no reason to consider the renewal of permission if security clearance has been denied to the company and its directors earlier. It has been observed that the Ministry of Information and Broadcasting has been forwarding the proposals for renewal of security clearance to the Ministry of Home Affairs on a routine basis, including cases where security clearance has already been denied to the company and its directors. If security clearance has been denied by the Ministry of Home Affairs to a company and its directors, there is no reason to consider its renewal unless there are specific reasons to indicate that the situation has changed. The security clearance guidelines dated 25‑06‑2018, paragraph 7.4, stipulate that the decision on security clearance by the Ministry of Home Affairs will have prospective effect unless otherwise decided by the ministry or department concerned in the discharge of its mandate. This was explicitly clarified in the meeting dated 21‑01‑2016 of the then Home Secretary and Secretary of Information and Broadcasting in response to a Ministry of Information and Broadcasting query on whether withdrawal of security clearance to company or individual entities in one sector would tantamount to withdrawal in other sectors also. Since the Ministry of Information and Broadcasting has already been communicated denial of security clearance to the above‑mentioned companies, there is no need for fresh consideration for the cases as per security clearance guidelines. In view of the above, the Ministry of Information and Broadcasting may be requested that proposals for renewal of security clearance in cases where security clearance has already been denied to the company should not be forwarded to the Ministry of Home Affairs in a routine manner unless and until there is sufficient and proper reason for the same., Before addressing whether the non‑disclosure of the relevant material would be in the interest of national security, it is our constitutional duty to mention the cavalier manner in which the Union of India has raised the claim of national security. Other than merely claiming that national security is involved, both in the affidavit that was filed before the High Court and in the submissions before us, the Union of India made no attempt to explain how non‑disclosure would be in the interest of national security. The Union of India has adopted this approach in spite of reiterations by the Supreme Court of India that judicial review would not be excluded on a mere mention of the phrase national security. The State is using national security as a tool to deny citizens remedies that are provided under the law. This is not compatible with the rule of law., Security clearance was denied to Media Broadcast Ltd because of its alleged link with Jamaat‑e‑Islami Hind and its alleged anti‑establishment stance. To conclude that Media Broadcast Ltd is linked to JEI‑H, the Intelligence Bureau has relied on the tenor of the articles published by dailies of Media Broadcast Ltd and the shareholding pattern of Media Broadcast Ltd. To conclude that JEI‑H has an anti‑establishment stance, the Intelligence Bureau has solely relied upon the programmes that were broadcast by Media One. Some of the views highlighted in the Intelligence Bureau report to conclude that Media Broadcast Ltd has an anti‑establishment stand are that it portrays security forces and the judiciary in a bad light; it highlighted the discrimination faced by minorities in the country and contrasted it with the State’s alleged soft attitude towards the Hindus who were involved in the destruction of Babri Masjid; and its comments on the Unlawful Activities (Prevention) Act, Armed Forces (Special Power) Act, developmental projects of the Government, encounter killings, and the Citizenship (Amendment) Act., Significantly, with respect to the list of shareholders who are alleged sympathisers of JEI‑H, the file does not contain any evidence on the alleged link between the shareholders and JEI‑H. The report of the Intelligence Bureau is purely an inference drawn from information that is already in the public domain. There is nothing secretive about this information to attract the ground of confidentiality. Additionally, it cannot be argued that the purpose of national security will be served by non‑disclosure merely by alleging that Media Broadcast Ltd is involved with JEI‑H, which is an organisation with alleged terrorist links. While we have held above that it would be impractical and unwise for the courts to define the phrase national security, we also hold that national security claims cannot be made out of thin air. There must be material backing such an inference. The material on the file and the inference drawn from such material have no nexus. The non‑disclosure of this information would not be in the interest of any facet of public interest, much less national security. On a perusal of the material, no reasonable person would arrive at the conclusion that the non‑disclosure of the relevant material would be in the interest of national security and confidentiality., We proceed to apply the subsequent prongs of the proportionality standard, even assuming that the action taken is in the interest of confidentiality and national security. The second prong of the proportionality analysis requires the State to assess whether the means used are rationally connected to the purpose. At this stage, the Supreme Court of India is required to assess whether the means, if realised, would increase the likelihood of protecting the interests of national security and confidentiality. It is not necessary that the means chosen should be the only means capable of realising the purpose of the State action. This stage of the analysis does not prescribe an efficiency standard. It is sufficient if the means used constitute one of the many methods by which the purpose can be realised, even if it only partially gives effect to the purpose. The Canadian Supreme Court in the case of Oakes emphasized that the means adopted must not be arbitrary, unfair, or based on irrational connection. The requirements under this prong will not be fulfilled if the State uses constitutionally impermissible means. Though it is not necessary that the means opted should be the best possible means, the means must still pass the muster of the constitution., The Ministry of Home Affairs disclosed the relevant material solely to the Supreme Court of India in a sealed cover. By this method of disclosure, information that is claimed to be confidential and in the interests of national security is sought to be protected by not disclosing it to the public and the claimant. The means that are used may not necessarily be the best possible means to protect the interest involved because the sealed cover procedure permits partial disclosure as opposed to complete non‑disclosure. However, it still shares a rational connection to the purpose that is sought to be achieved. On the other hand, the non‑disclosure of even a summary of reasons for denying security clearance does not share a rational connection with the purpose identified., In A v. the United Kingdom, the European Court of Human Rights held that there must always be equality of arms between the parties. The Court held that if procedural guarantees are restricted, then the limitation must be sufficiently counterbalanced. In Secretary of State for the Home Department v. AF, the House of Lords, while interpreting the judgment of the European Court of Human Rights in A, held that there is a core irreducible minimum of procedural guarantees which cannot be infringed. The House of Lords observed that the essence of the case against the applicant is a core irreducible minimum which has to be disclosed. We are in agreement with the observations of the House of Lords and the European Court of Human Rights in AF and A respectively. The Ministry of Home Affairs, by not disclosing the reasons for denying security clearance, has rendered Media Broadcast Ltd’s procedural guarantees otiose. The summary of reasons for denying security clearance constitutes the core irreducible minimum of the procedural guarantees under Article 14. By not disclosing the summary of reasons, the Ministry of Home Affairs has undertaken an unreasonable and arbitrary means to fulfil its purpose., The judgment of the majority in Justice K.S. Puttaswamy (5J) adopted the moderate interpretation of necessity that was propounded by David Bilchitz. The author sought to draw a middle ground between strong and weak forms of the necessity prong. The sub‑components of the necessity prong as devised by Bilchitz are as follows: (a) Whether there are other possible means which could have been adopted by the State; (b) Whether the alternative means identified realise the objective in a real and substantial manner; (c) Whether the alternative identified and the means used by the State impact fundamental rights differently; and (d) Whether on an overall comparison and balancing of the measure and the alternative, the alternative is better suited considering the degree of realising the government objective and the impact on fundamental rights., In Charkaoui v. Canada (Citizenship and Immigration) the Canadian Supreme Court held that the procedure for detention prescribed under the Immigration and Refugee Protection Act 2001 suffered from procedural infirmities. Under the 2001 Act, a person may be deprived of some or all of the information on the basis of which the detention was ordered. The Canadian Supreme Court held that the provisions of the 2001 Act unjustifiably violate Section 7 of the Canadian Charter of Rights and Freedoms because State action is judicially reviewed based on secret material without devising any means to protect the affected person’s procedural rights. The Court referred to the system of special advocates in the United Kingdom and observed that this system protects the interests of the affected party. The Court concluded that the procedure prescribed in the statute cannot be justified as minimum impairment of the individual’s right to a judicial determination on the facts and the law, and the right to know and meet the case., The Canadian Supreme Court referred to the jurisprudence on the procedure followed by courts across various jurisdictions to decide claims that involve State secrets and held that there were other lesser restrictive means that could have been employed, as in the United Kingdom. As part of the analysis of the least restrictive means prong, we deem it necessary to refer to alternative procedures that are available in India and in other countries that substantially aid in realising the objective and which protect the interest of the affected party in a better fashion., The Courts in the United States have recognised that in exceptional circumstances, the court must act in the interest of national security to prevent the disclosure of state secrets. One of the applications of this principle is through the Totten claim. According to the Totten claim, if claims are premised on state secrets, then they are barred from adjudication. If the subject matter is a matter of state secret then the action may be dismissed on pleadings before the proceedings could reach the stage of evidence. The Totten claim, if allowed, permits the dismissal of the suit in the pre‑discovery stage., In Chahal v. the United Kingdom, the Home Secretary issued an order to deport the appellant, an Indian national and a Sikh separatist. One of the grounds of the appellant’s challenge to the deportation order was that although the Home Secretary’s decision is amenable to judicial review, the effective determination of his risk to national security was made by an internal Home Office advisory panel on the basis of material which was not disclosed to him. The European Court of Human Rights accepted the contention of the appellant and held that the procedure violated the rights under Article 5(4) of the European Convention on Human Rights. The Court observed that there are other less restrictive methods which could be employed to accommodate legitimate concerns of national security and procedural justice. The Court referred to the procedure that is applied in Canada under the Canadian Immigration Act 1976 under which a Federal Court judge holds an in‑camera hearing of all the evidence; the applicant is provided a statement summarising the case that is made against them; and the confidential material is then disclosed to a security‑cleared counsel who assists the court in testing the strength of the State’s case., In response to the judgment in Chahal, the Government of the United Kingdom passed the Special Immigration Appeals Commission Act 1997 which paved the way for security‑cleared Special Advocates to represent the applicant in substantive proceedings that take place behind closed doors. The material is not disclosed to the claimant. However, the Special Advocate represents the interest of the party before the Supreme Court of India though they are not permitted to interact with the claimant about the non‑disclosable security evidence in the closed proceedings. For all purposes, closed material proceedings are similar to the sealed cover procedure, except that a security‑cleared lawyer is appointed to counterbalance the limitations on procedural guarantees. The Terrorism Act 2000 prescribes a similar procedure. Since then the Courts in the United Kingdom have been using Special Advocates in civil proceedings, quasi‑criminal proceedings, and in public interest immunity claims. The Special Advocate serves two purposes: firstly, to seek maximum possible disclosure of closed material; and secondly, to test by cross‑examination and make submissions on any material that remains closed., The Evidence Act prescribes rules precluding disclosure of certain communications and evidence. Section 123 stipulates that no person shall be permitted to give any evidence that is derived from unpublished official records relating to affairs of the State. The evidence shall be disclosed only with the permission of the officer at the head of the department: ‘Evidence as to affairs of State – No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.’, Section 124 provides that a public officer shall not be compelled to disclose communications made to him in official confidence if the disclosure affects public interest: ‘Official communications – No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.’, Section 162 stipulates that a witness who is summoned to produce a document in court shall bring the document to court notwithstanding any objection that is raised on its production and admissibility. The provision provides that the objection shall be decided by the Supreme Court of India. For this purpose, the Court shall inspect the document, unless it refers to matters of State. The provision reads: ‘Production of document – A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.’, The claim of public interest immunity allows the State to remove the material from the proceedings on the ground that its disclosure would injure public interest. All three parties to the proceeding – the applicant, the State, and the Court – cannot refer to or rely on the documents for substantive hearings in the course of the proceedings if the Court allows the public interest immunity claim at the discovery stage. In effect, the public interest immunity claim renders the relevant document non‑existent for the purposes of the proceedings. Public interest immunity substantially realises the objective of protecting the interests of confidentiality and national security., All three alternatives identified above realise the objective in a real and substantive manner insofar as they further non‑disclosure. However, each of the alternative means has a different effect on fundamental rights because they operate in different penumbrae. In a public interest immunity claim, the material is not relied on by either the parties or the Court in the course of the substantive hearings. The Court removes the material from the proceeding, and the public interest immunity proceedings are conducted in a closed setting. In a Totten claim, the Court at the admission stage itself declares that the issue is non‑justiciable if the material on state secrets may have to be disclosed. The Court does not undertake any balancing exercise to decide if the injury due to disclosure of information is heavier than the injury due to non‑disclosure. Rather, if the material is, according to the State, related to a state secret then the applicant is deprived of the remedy of judicial review. Under the closed material procedure, non‑disclosable material is relied on by the State and referred to by the Court in the course of the substantive hearing. The Special Advocate would represent the interests of the affected party but would be precluded from discussing the evidence with the affected party. Special Advocates are also involved in public interest immunity claims to represent the affected party in the closed hearing to decide if the relevant information must be disclosed. Thus, the Special Advocate system is a means to counterbalance the limitation on procedural guarantees of the affected party., When these three means are placed on a continuum, public interest immunity claims would be at one end as they have the least impact on rights, whereas the Totten claim would be at the other end. The closed material procedure would be in the middle because Special Advocates are used to counterbalance the infringement of procedural rights. The difference in impact must be determined firstly based on the stage of consideration. The public interest immunity claim and the closed material procedure claim are raised at the discovery stage. Under the Totten claim, the claim is held to be non‑justiciable at the pleading stage if the State contends that the proceedings are premised on state secrets. Secondly, the Totten claim limits the fundamental right to judicial review since claims based on state secrets are rendered non‑justiciable. However, in a public interest immunity claim, whichever way the claim is decided, the parties will have equality of arms because the same evidence will have to be relied on in the course of the proceedings. It may be argued that the removal of the documents from the proceedings would, in effect, render the claim non‑justiciable if the documents that are sought to be not disclosed are closely intertwined with the cause of action. The sealed cover procedure and the closed material proceeding both exclude non‑disclosable evidence from the claimant. However, the closed material procedure in the United Kingdom does not exist independent of Special Advocates who aim to provide sufficient counterbalance. The closed material proceeding is more injurious to the claimant’s procedural guarantees as compared to public interest immunity because non‑disclosed material is used by the State to defend its actions and relied on by the Court to arrive at a conclusion. In public interest immunity, the non‑disclosable evidence is completely removed at the discovery stage. Although Special Advocates aim to provide sufficient counterbalance, the process still causes prejudice to the claimant since the security‑cleared advocates are not permitted to interact with the claimant about the evidence. The sufficiency of the counterbalance provided by Special Advocates largely depends on the facts of the case, particularly on the material that is sought to be unrevealed and revealed. The interrelationship between the allegations, open material, and closed material was aptly addressed by the European Court of Human Rights in A. The Court observed that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and making submissions on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function effectively unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate. While this question must be decided on a case‑by‑case basis, the Court observes generally that where the evidence was largely disclosed and the open material played the predominant role, it could not be said that the applicant was denied an effective opportunity to challenge the reasonableness of the Secretary of State’s belief and suspicions about him. In other cases, even where most of the underlying evidence remained undisclosed, if the allegations in the open material were sufficiently specific, it would have been possible for the applicant to provide his representatives and the special advocate with information to refute them without needing to know the detail or sources of the evidence., In view of the above discussion, public interest immunity is perhaps a less restrictive means among the alternative methods listed above. Having held that there are alternative means which further the purpose of non‑disclosure at the disposal of the State, we shall now undertake a comparative analysis of the impact of the alternative means identified (public interest immunity) and the means used (sealed cover) on fundamental rights. In Section F, we have already discussed the effect of the disclosure of material solely to the courts in a sealed cover on the fundamental precepts of procedural fairness and how the courts do not employ any safeguards to protect the procedural rights of the applicant. In the next section, we will discuss the jurisprudence on public interest immunity. A reference to how the courts have dealt with public interest immunity claims will allow us to analyse whether the courts have employed sufficient procedural guarantees to protect the rights of the applicant or have, on the contrary, been deferential to the claims of the State. This analysis is important because only a comparative analysis of how the courts would deal with sealed cover and public interest immunity claims will allow us to evaluate their relative effect on procedural rights., The Supreme Court of India has on earlier occasions interpreted Sections 124 and 164 of the Evidence Act. In State of Punjab v. Sodhi Sukhdev Singh, the respondent, a District and Sessions Judge who was removed from service and later re‑employed, sought the report of the Public Service Commission and the proceedings of the Council of Ministers. The Chief Secretary filed an affidavit claiming privilege under Section 123 of the Evidence Act. The claim for privilege was allowed. Justice Gajendragadkar, writing the majority opinion of the Constitution Bench, laid down the scope of review of a claim of non‑disclosure. Sections 164 and 123 were construed to deal with the conflict between public interest and private interest. It was observed that the Supreme Court of India must assess if the disclosure that affects public interest would outweigh the concerns of private interest which disclosure of material to the litigant further.
id_1267	5	A valid claim for privilege made under Section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest, and that, where a conflict arises between public interest and private interest, the latter must yield to the former. No doubt the litigant whose claim may not succeed as a result of the non‑production of the relevant and material document may feel aggrieved by the result, and the Supreme Court of India, in reaching the said decision, may feel dissatisfied; but that will not affect the validity of the basic principle that public good and interest must override considerations of private good and private interest. The Supreme Court of India held that when a claim of public interest immunity is made against disclosure, the Court must on a preliminary enquiry of the affidavit determine if the document relates to affairs of the State. If the document relates to State affairs, then the decision of the head of the department on whether the disclosure would violate public interest would be final. The document must be disclosed if on a preliminary enquiry the Court is of the opinion that the document does not relate to State affairs. The Court would only possess the power to scrutinise the affidavit and not inspect the document on which immunity is claimed to determine if the document relates to affairs of State., Justice Subba Rao, in his opinion, differed from the majority opinion on this point of law. The divergence was one of principle. While the majority pitted the issues on the lines of public interest and private interest, Justice Subba Rao held that both disclosure and non‑disclosure further public interest. He observed that the disclosure of information aids the party in the proceedings and also serves the purpose of administration of justice. On the extent of scrutiny by the Supreme Court of India, Justice Subba Rao observed that the Court has the power to disallow a claim of privilege. For this purpose, the Court has to determine if the public interest in disclosure outweighs the public interest in non‑disclosure. He noted that the Courts should ordinarily accept the affidavit of the Minister claiming privilege but when the Court has reason to disbelieve the claim, it can examine the Minister. Justice Subba Rao agreed with the opinion of Justice Gajendragadkar that the Court shall not inspect the document that is sought to be protected from disclosure., In State of Uttar Pradesh v. Raj Narain, the respondent sought to summon documents in an election petition. The State made a claim for immunity. Justice K K Mathew, in his concurring opinion for the Constitution Bench, raised doubts on the observation in Sodhi Sukhdev Singh that the Court does not have the power to inspect documents for which the claim of privilege is made. He held that it would be difficult to determine the effect of the disclosure on public interest without inspecting the document. The learned Judge classified such documents as belonging to noxious classes and others. He held that if the documents belong to noxious classes such as national security, they would per se infringe on public interest. For other documents that do not belong to noxious classes, the Courts ought to survey aspects of public interest involved in both disclosure and non‑disclosure to assess the relative claims of the different aspects of public interest. He observed that few would question the necessity of the rule to exclude that which would cause serious prejudice to the State. When a question of national security is involved, the Court may not be the proper forum to weigh the matter and that is the reason why a minister's certificate is taken as conclusive. Those responsible for national security must be the sole judges of what national security requires. Therefore, documents in relation to these matters might fall into a class which per se might require protection., In SP Gupta v. Union of India, a seven‑Judge Bench of the Supreme Court of India settled the position of law on claims of non‑disclosure on the grounds of public interest. In this case, the Union of India claimed immunity against the disclosure of the correspondence between the Law Minister, the Chief Justice of the Delhi High Court and the Chief Justice of India. It was argued that the documents sought to be disclosed belong to a class that is immune from disclosure, and thus the Courts ought to allow the claim for non‑disclosure irrespective of its contents. Justice Bhagwati, whose view five other judges agreed to, rejected the claim for non‑disclosure. Justice Bhagwati observed that a claim of class immunity is not absolute: the executive cannot by merely invoking the formula of class immunity defeat the cause of justice by withholding a document which is essential to do justice between the parties, for otherwise the doctrine of class immunity would become a frightful weapon in the hands of the executive for burying its mistakes, covering up its inefficiencies and sometimes even hiding its corruption. Every claim for immunity in respect of a document, whatever be the ground on which the immunity is claimed and whatever be the nature of the document, must stand scrutiny of the Court with reference to one test, namely, what does public interest require – disclosure or non‑disclosure. The doctrine of class immunity is therefore no longer impregnable; it does not any more deny judicial scrutiny; it is no more a mantra to which the Court pays obeisance. Whenever class immunity is claimed, the Court has to weigh the aspect of public interest that requires the document not to be disclosed against the aspect that the Court in performing its functions should not be denied access to relevant documents and decide which way the balance lies. This exercise has to be performed in the context of the democratic ideal of an open Government. Justice Bhagwati further observed that the non‑appointment of a Judge for an additional term, which was under challenge in this case, could only be challenged on the ground that there was no full and effective consultation between the three constitutional functionaries, or that the decision was mala fide. Hence, the correspondence that is sought is the only documentary evidence that would aid in establishing the claim. On the other hand, non‑disclosure would have the effect of ensuring the dismissal of the writ petition and would affect the wider constitutional principles of independence of the judiciary if the appointment process is insulated from public view. When the transfer of a High Court Judge is challenged, the burden to prove that the transfer was not mala fide is on the Union of India. The Union of India cannot meet such a heavy burden by merely filing an affidavit for non‑disclosure. Justice Bhagwati rejected the claim for non‑disclosure by observing that the Union of India was unable to prove its claim that disclosure of the correspondence would be injurious to public interest., The principles elucidated in the judgment are summarised as follows: (i) Open government is a crucial component of a democratic form of government. Disclosure of information is advantageous to the affected party in the proceedings and also furthers public interest in access to information and open government. The conflict which Sections 123 and 162 seek to redress is not between public interest and private interest but between two conflicting conceptions of public interest; (ii) The majority opinion in Sodhi Sukhdev Singh perpetuates two inconsistencies. Firstly, it would be difficult to determine if a document relates to affairs of the State without inspecting it. The Court determines the effect of its disclosure on public interest only after inspection. Secondly, the Court, and not the head of the department, determines if the disclosure of the information would affect public interest. After the Court undertakes this exercise, it would be futile for the head of the department to again decide if the disclosure would be injurious to public interest; (iii) The burden of establishing the claim for immunity is on the person making the claim; (iv) When a claim of public interest immunity is made, the Court must, on a perusal of the affidavit filed by the Minister or the head of the department, decide if the disclosure would be injurious to public interest. The Court may inspect the document if it doubts the claim of the State and is unable to satisfy itself on a perusal of the affidavit. This power of inspection of the Court is not excluded by the operation of Section 162 of the Evidence Act; (v) Protection from disclosure must not be granted to documents merely because disclosure would lead to political criticism. The right to access information cannot be limited due to fear of criticism of actions of the government in a democratic society premised on open government; (vi) Disclosure cannot be denied per se merely because the documents belong to a noxious class. The Court must still conduct a balancing exercise. Class immunity is not absolute or inviolable. It is not a rule of law to be applied mechanically in all cases; (vii) The Court must determine if (a) the disclosure of the document would in effect be against public interest (the effect test), and (b) if so, whether the public interest in disclosure is so strong that it must prevail over the public interest in the administration of justice (the balancing test); and (viii) While undertaking the balancing test, the Court should consider the following lines of enquiry: (a) On facts: Whether non‑disclosure would injure the interest of the party of the case. Injury due to non‑disclosure must be determined on the basis of the nature of the proceedings, the relevance of the document, the likelihood that the document will be important to the litigation, and whether allowing the claim of non‑disclosure would render the issue non‑justiciable; (b) On principle: Whether non‑disclosure would affect a constitutional principle other than administration of justice., It is important to refer to the approach of courts across jurisdictions towards balancing the different conceptions of public interest in the context of public interest immunity claims. This is necessary because the law on public interest immunity that was developed in India in SP Gupta heavily relied on the jurisprudence emanating from other common law countries. Chief Justice Ray records in paragraph 41 of the Constitution Bench judgment in Raj Narain that the foundation of the law behind Section 123 and Section 162 of the Evidence Act is the same as in English law., The United Kingdom account began with the decision of the House of Lords in Duncan v. Cammell Laird. The House of Lords gave precedence to form over substance while assessing a public interest immunity claim for non‑disclosure. Lord Simon framed two issues: the form in which an objection to disclosure has to be made, and if the objection is made in a proper form, whether the Court ought to treat the objection as conclusive without scrutiny. The Law Lord held that the claim for non‑disclosure must be allowed if the form of the objection is valid, and the interests of a private citizen may have to be subsumed by public interest. Consequently, courts cannot examine the documents while determining the validity of the claim because it would violate the principle that the Judge should have no dealings on the matter in hand with one of the litigants save in the presence of and to the equal knowledge of the other. The House of Lords established two principles for the application of public interest immunity: that the interest of a litigant must give way to the secrecy of the government, and the Minister has the sole power to decide if the document ought to be withheld. The House of Lords altered its approach in Conway v. Rimmer. Lord Reid observed that the impact of non‑disclosure must not be viewed through the narrow lens of private interest and that it is public interest in the administration of justice that is injured due to non‑disclosure of documents. The House of Lords established three principles of seminal importance. Firstly, the power to decide if evidence has to be withheld from the Court resides with the Court and not the executive. Secondly, the Court while exercising this power must balance the potential harm to public interest due to disclosure with the Court’s ability to administer justice. The Court must assess the effect of non‑disclosure on ascertaining the true facts and on the wider principle of public confidence in the court system. Thirdly, the Court is entitled to inspect, in private, the material on which immunity is claimed. On scrutinising the material, the Court must determine if non‑disclosure is necessary due to public interest, and not merely advantageous to the functioning of public service. Lord Hudson held that the Court in its scrutiny must discard the generalities of classes and must weigh the injuries to the public of a denial of justice on the one side and, on the other, a revelation of governmental documents which were never intended to be made public. The conflict of the claims of public interest must be determined based on the importance of the documents sought to be withheld in the case before the Court and whether non‑disclosure would result in a complete or partial denial of justice. In Reg v. Chief Constable, West Midlands, ex p. Wiley, Lord Woolf, speaking for the House of Lords, observed that while determining the balance on the scale, the Court should also enquire if the interest in disclosure could be effectuated through other alternate means, such as providing necessary information without producing the actual document or disclosing a part of the document on a restricted basis., In the United States, judicial decisions have recognised that in exceptional circumstances the Court must act in the interest of national security to prevent the disclosure of state secrets. One example is the Reynolds privilege. Reynolds privilege is an evidentiary principle where the successful assertion of the privilege removes the privileged evidence from litigation. The test propounded in Reynolds is whether there is a reasonable danger that compulsion of evidence will expose matters which, in the interest of national security, should not be divulged. The privileged evidence is excluded from the case and may incidentally result in the dismissal of the claims. Unlike the standard in the United Kingdom, even the most compelling necessity in disclosure cannot overcome the claim of privilege if the Court is satisfied that state secrets are at stake. Ordinarily, the evidence is excluded, unlike a Totten bar where the issue is declared non‑justiciable, if the information relates to a class of protected evidence. However, in some cases the application of privilege may require dismissal of the action and at this point the Reynolds privilege converges with the Totten bar. The United States Court of Appeals for the Ninth Circuit in Binyam Mohamed v. Jeppesen Dataplan observed that termination of the case is justified on the application of Reynolds privilege in three circumstances: if the plaintiff cannot prove their case prima facie; if the plaintiff prima facie proves their case but the privilege deprives the defendant of information that would provide a valid defence, the Court may grant summary judgment to the defendant; and even if the claims might be theoretically established without relying on privileged evidence, it may be impossible to proceed because the privileged evidence is inseparable from the non‑privileged evidence. The standard of scrutiny followed by the courts in the United States differs from that in the United Kingdom on three basic principles: firstly, the Reynolds privilege test identifies if the information relates to protected classes; secondly, the Court does not conduct a balancing exercise between disclosure and non‑disclosure – if the information relates to the protected class, the claim is allowed irrespective of the effect of non‑disclosure on the case and broader constitutional principles; thirdly, the burden of proof is on the affected party to prove its case with non‑privileged evidence and not on the State to prove the necessity of non‑disclosure., Similar to the Courts in the United Kingdom, Canadian jurisprudence on non‑disclosure of information has shifted away from class scrutiny towards the scrutiny of individual documents. The consistent view of the Canadian Courts is that documents may be withheld only for the proper functioning of the executive branch and not to facilitate its improper conduct. Section 38 of the Canada Evidence Act 1985 stipulates the conditions for disclosure of information that is sought to be protected. The Court undertakes the following analysis to determine the validity of the claim of non‑disclosure filed by the Attorney General of Canada: (i) The relevancy test – whether the information sought to be disclosed is relevant to the case. The burden of proof to prove relevancy is on the party claiming disclosure; (ii) The injury test – whether disclosure would be injurious to international relations, national defence or national security. The burden of proving injury is on the party opposing disclosure. The Court must assess if the executive’s claim of injury has a factual basis, considering the nature of the information and the nature of the injury sought to be protected; (iii) The alternative test – whether there are alternatives to full disclosure that would protect a fair trial; (iv) The balancing test – the Court must determine if public interest in disclosure outweighs public interest in non‑disclosure. If it does, the information must be disclosed. While undertaking the balancing exercise, the Court considers (a) the relative importance of the information in proving or defending the claim; (b) the extent of injury that would be caused by disclosure; (c) whether higher interests such as human rights issues or the right to make a full answer and defence in the criminal context are at stake; (d) the importance of the open court principle; and (e) whether the redacted information is already known to the public., The discussion of public interest immunity claims across the mentioned jurisdictions leads to the following conclusions: (i) The earlier position of law across all jurisdictions was that Courts should be deferential to the claim of the government that disclosure would be injurious to public interest, but this position has undergone a sea‑change. It is now settled law that Courts possess the power to assess the validity of public interest immunity claims, although the extent of such power remains contested; (ii) The extent of scrutiny of public interest immunity claims by Courts hinges on four primary factors: the identification of injury caused by non‑disclosure, the permissibility of class claims, the burden of proof, and the evidentiary requirement to prove the claim; (iii) Identification of injury due to non‑disclosure and assessment of the ground for non‑disclosure impacts the Court’s standard of assessment of the permissibility of class claims, the burden of proof and the evidentiary requirement. The standard of scrutiny is higher when the effect of non‑disclosure is considered in its wider implications to democratic governance and rule of law; (iv) Courts in India, the United Kingdom, and Canada have held that non‑disclosure of relevant material affects public interest and the interests of the party seeking disclosure, injuring the principle of open government, a basic premise of democracy. The Courts in the United States have been more deferential to non‑disclosure claims, particularly on national security, and do not undertake a balancing exercise between disclosure and non‑disclosure, giving prominence to the objective of non‑disclosure; (v) The standard laid down in India (in SP Gupta), the United Kingdom, and Canada on the assessment of public interest immunity claims is similar in that the impact of non‑disclosure on broader principles of constitutional governance is considered; (vi) In Canada, the party seeking production is required to prove relevancy of the material after the public interest immunity claim is made by the State, imposing a heightened burden of proof. This integration of discovery and objection stages creates challenges because the considerations at the discovery stage and the objection stage are distinct. The party seeking discovery must prima facie prove relevance; once that burden is discharged and the Court orders disclosure, the State may object on the ground of injury to public interest, at which stage the burden shifts entirely to the State to prove injury. After the objection is raised, the relevancy of the disclosure is weighed only at the balancing stage.
id_1267	6	Identifying the relevancy of a document before the State is required to discharge the burden of proving public interest introduces a fundamental misconception in the application of public interest immunity, which is an exception to the production of documents. At an elementary level, it would be impossible to prove the relevancy of the document to the proceedings without the party having viewed it; and once the injury due to disclosure is proved, the Supreme Court of India and courts in the United Kingdom and Canada follow the structured proportionality test to balance the conflicting claims of public interest., According to the Code of Civil Procedure, 1908, a party to a proceeding may file an application for discovery to secure knowledge of information that the other party holds. A party may file an application without filing any affidavit, seeking a direction for disclosure of documents relating to any matter in question that is in the possession or power of the other party. The Supreme Court of India may either refuse or adjourn the application if it is satisfied on hearing that such discovery is not necessary at the stage of the suit. The court shall issue an order limiting the discovery to certain classes of documents, and the application shall be dismissed if discovery is not necessary for the fair disposal of the suit or for saving costs. The phrase \fair disposal of the suit\ includes the spirit of procedural and substantive fairness., If the Supreme Court of India allows the application considering that discovery is necessary, the other party should file an affidavit listing the documents in its possession relating to the matter in question. The affidavit must be produced in the form specified in Form No. 5 in Appendix C, with variations as circumstances may require. The form requires the deponent to state possession of documents, objections to production, documents previously possessed, the date they were last in possession, and a declaration that, to the best of the deponent’s knowledge, no other relevant documents are in possession of the deponent, the pleader, agent, or any other person on the deponent’s behalf., After the Supreme Court of India has directed disclosure of all documents, the party directed to disclose may object to the disclosure of specific documents in its possession in the form prescribed in Annexure C of the Code. Order XI Rule 13 of the Code of Civil Procedure stipulates that the form of discovery may be changed if circumstances require. While a party seeks discovery of documents in the possession of the other party, it is not necessary to prove at the discovery stage that disclosure would be relevant to the outcome of the proceedings. The burden of proof lies entirely on the party objecting to disclosure to prove injury to public interest and to justify the claim of public interest immunity., The Constitution Bench of the Supreme Court of India in S.P. Gupta held that if the State objects to disclosure of documents on the ground of public interest immunity, the Supreme Court of India shall assess the validity of the objection based on the reasons in the affidavit. The court has the power to inspect the document if, on perusal of the affidavit, it has any doubt whether the document relates to the affairs of the State. The affidavit must therefore be detailed enough to enable the court to assess the claim of public interest immunity. The claim must be made by the minister who is the political head of the department concerned, or, failing him, by the secretary of the department, and it must always be made in the form of an affidavit., The substance of a public interest immunity claim is to seek an exception to the compliance of principles of natural justice. A departure from procedural fairness, after it has been proved that a party has been denied a fair and reasonable hearing due to non‑compliance, must be tested on the proportionality standard. The Supreme Court of India should use the proportionality standard to assess public interest immunity claims because the State, by invoking public interest immunity, seeks to deviate from the right to know the case against a person, which infringes the right to a fair trial protected by Article 21 of the Constitution., The proportionality standard resembles the sub‑facets laid down in S.P. Gupta: (i) focus on the effect rather than the purpose of non‑disclosure; (ii) balancing the effects of disclosure and non‑disclosure on facts and principle; (iii) a four‑step test that provides flexibility for the court to apply existing jurisprudence; and (iv) reliance on common‑law doctrine, with persuasive value from the United Kingdom and Canada, which also use the proportionality standard to assess public interest immunity claims., Article 19(2) to Article 19(6) of the Constitution provide reasonable restriction clauses that can be invoked in the interests of sovereignty and integrity of India. Section 124 of the Evidence Act stipulates that restriction to disclosure is justified only if public interest is injured, thereby prescribing a heightened standard for the application of public interest immunity. The proportionality standard tests the effect of the infringement only at the balancing stage; the suitability and legitimate‑aim prongs are framed in terms of purpose rather than effect. Section 124 therefore implies that no purpose of sufficient importance can override the right to a fair hearing, and only an injury to public interest can justify non‑disclosure., The structured proportionality test to be applied by the Supreme Court of India consists of three stages: (i) whether disclosure of information would injure public interest (injury stage); (ii) whether there is a less restrictive but equally effective alternative means to protect the injury (necessity stage); and (iii) whether the public interest in non‑disclosure outweighs the public interest in disclosure (balancing stage). In the balancing stage, the court must consider whether non‑disclosure would render the issue non‑justiciable, the relative relevancy of the material, and the impact on other constitutional rights such as freedom of the press., The Supreme Court of India must follow the structured proportionality standard, modified by Section 124 of the Evidence Act, to assess public interest immunity claims. Under this standard, the burden of proof lies on the party opposing disclosure to demonstrate the claim of public interest in non‑disclosure. The proportionality test imposes a strict reasonableness requirement, unlike the ad‑hoc and extemporaneous exercise of power by courts to secure material in a sealed cover., Article 145 of the Constitution grants the Supreme Court of India the power to make rules for regulating its practice and procedure. Pursuant to this power, the Supreme Court Rules 1966 were notified, but they contained no provision on disclosure of documents in a sealed cover. The Supreme Court of India Rules 2013 replaced the 1966 Rules. Order XIII Rule 1 of the 2013 Rules provides that a party to a proceeding in the Supreme Court of India is entitled to apply for and receive certified copies of all pleadings, judgments, decrees, orders, documents and depositions. Rule 7 creates an exception, stating that no person has a right to documents that are (i) confidential; (ii) directed to be placed in a sealed cover by the court or the Chief Justice; or (iii) whose disclosure is not in public interest, unless permission is obtained from the court or the Chief Justice., The power of the Supreme Court of India to receive material in a sealed cover is read from Order XII Rule 7. Unlike the closed‑material procedure in the United Kingdom and Canada, the sealed‑cover procedure is a creation of the courts, not the legislature. Rule 7 recognises non‑disclosure on the ground of public interest immunity but does not prescribe detailed guidelines for exercising the power to secure material in a sealed cover. The sealed‑cover procedure was not intended to replace public interest immunity proceedings, which remain the established method for dealing with confidentiality claims., In both the sealed‑cover procedure and public interest immunity claims, the documents withheld from disclosure are not revealed to the counsel for the applicant, and the proceedings are effectively ex‑parte for the party seeking disclosure. However, a crucial difference is that in the sealed‑cover procedure the court may rely on the material disclosed in the sealed cover during the substantive hearing, whereas in public interest immunity the documents are completely removed from the proceedings and cannot be relied upon by either party or the adjudicator. The sealed‑cover procedure therefore violates both principles of natural justice and open justice., In Al Rawi v. The Security Service, the Supreme Court of the United Kingdom recognised that the closed‑material procedure causes greater harm than public interest immunity because the closed documents are only available to the party possessing them, the special advocate, and the court. Lord Dyson observed that the public interest immunity procedure respects common‑law principles: if documents are disclosed, they are available to both parties and the court; if they are not disclosed, they are unavailable to anyone, ensuring equality of arms. By contrast, a closed‑material procedure creates an imbalance by limiting access to the material., The total removal of information from the proceedings has two impacts: it may lead to dismissal of the claimant’s suit, rendering the issue non‑justiciable, and it may leave the State defenseless. The Supreme Court of India must consider these consequences when deciding whether a public interest immunity claim is a less restrictive means. At the second stage of the enquiry, the court must determine whether information excluded on a successful public interest immunity claim can be fairly removed from the proceeding., The New Zealand Law Commission’s report on National Security Information in Proceedings proposes a two‑step procedure for dealing with sensitive information. First, the court decides whether the information should be disclosed on a balance of considerations; second, it decides whether the information can be fairly excluded from the proceedings. The Commission recommends that a closed‑material procedure be used only when the national‑security information is sufficiently relevant that it is in the interests of justice to keep the material closed rather than to exclude it entirely. The report notes that the State would find it difficult to prove that withholding information from the claimant while using it against them serves the interests of justice., The recommendations of the New Zealand Law Commission and the opinions of Lord Clarke and Lord Mance in Al Rawi introduce closed‑material proceedings as an additional step after the completion of public interest immunity proceedings. In a closed‑material procedure, similar to the sealed‑cover process, the court relies on material that the claimant cannot see while disposing of the case. The purpose is to counterbalance the injustice caused by the complete removal of evidence under public interest immunity., Lord Kerr warned that the State faces a dilemma with public interest immunity claims because it may be tempted to seek a closed‑material procedure, claiming that disclosure would injure national security. He emphasized that evidence must be capable of withstanding challenge; otherwise, insulated evidence may mislead the adjudicator. The right to know the opponent’s case and to challenge it is central to a fair trial, and a procedure that gives one party control over the production and presentation of material threatens that fairness., Lord Mance (with Lord Hale) and Lord Clarke held that the court has the power to order a closed‑material procedure in certain circumstances after a public interest immunity claim is decided, but they differed on the precise circumstances. Lord Mance suggested that after a public interest immunity claim is allowed, the court may order a closed‑material procedure if the material is in the defendant’s possession and the claimant consents. Lord Clarke argued that the parties should make representations to the judge, who may then order a closed‑material procedure depending on the facts., The introduction of a sealed‑cover procedure does not render public interest immunity proceedings redundant. Allowing a public interest immunity claim may injure procedural guarantees, but a sealed‑cover procedure does not ensure a fairer proceeding. The effect of public interest immunity—removing evidence completely from the proceedings—encourages the State to make restricted claims of public interest immunity. A sealed‑cover or closed‑material procedure would be inherently disadvantageous to the claimant because they are unaware of the contents of the document and cannot challenge its effect., It may be argued that removal of documents from the proceedings would render the case non‑justiciable if the protected documents are closely intertwined with the cause of action. However, the Supreme Court of India, in the balancing stage of adjudicating a public interest immunity claim, must consider whether non‑disclosure would render the issue non‑justiciable. If the court finds that the material is essential to the case, it may direct disclosure despite the public interest claim. The purpose of the balancing prong is to weigh the conflicting claims and effects of such claims.
id_1267	7	Even if the disclosure would conceivably injure public interest, the courts may still dismiss the claim of public interest immunity if the non-disclosure would render the issue non-justiciable, and on the facts of the case it is decided that the injury due to non-disclosure overweighs the injury due to disclosure. The courts could adopt the course of action of redacting the confidential portions of the document and providing a summary of the contents of the document instead of opting for the sealed cover procedure to fairly exclude the document from the proceedings on a successful public interest immunity claim. Both parties can then only be permitted to refer to the redacted version of the document or the summary in the proceeding., In view of the above discussion, we are of the opinion that public interest immunity proceeding is a less restrictive means to deal with non-disclosure on the grounds of public interest and confidentiality. This leaves the final issue to be answered: if public interest immunity is a less restrictive means, then whether the procedure of sealed cover can be used at all, and if so, in what circumstances would it be permissible for the Supreme Court of India to exercise its power to secure evidence in a sealed cover. While it would be beyond the scope of this judgment to lay down the possible situations when the sealed cover procedure can be used, it is sufficient to state that if the purpose could be realised effectively by public interest immunity proceedings or any other less restrictive means, then the sealed cover procedure should not be adopted. The Supreme Court of India should undertake an analysis of the possible procedural modalities that could be used to realise the purpose, and the means that are less restrictive of the procedural guarantees must be adopted., In view of the observations above, we are of the opinion that the respondents, by not providing a reasoned order denying the renewal of licence, not disclosing the relevant material, and by disclosing the material only to the Supreme Court of India in a sealed cover, have violated the appellant's right to a fair hearing protected under Article 21 of the Constitution. The respondents were unable to prove that the restrictions on the appellant's right to a fair hearing were reasonable. Therefore, the order of the Ministry of Information and Broadcasting dated 31 January 2022 denying permission for renewal of the licence and the judgment of the Division Bench of the High Court dated 2 March 2022 must be set aside on the ground of the infringement of procedural guarantees., Substantive Challenge: the validity of the action of the Ministry of Information and Broadcasting in denying renewal of the permission. In the course of his arguments, Mr Huzefa A Ahmadi, in addition to arguments on the violation of procedural guarantees, requested the Supreme Court of India to peruse the material that was disclosed solely to the Court in a sealed cover to decide if there was sufficient material to justify the non-renewal of permission. Thus, notwithstanding the conclusion that we have reached above setting aside the order of the Ministry of Information and Broadcasting dated 31 January 2022 and the judgment of the High Court dated 2 March 2022 on procedural grounds, we will proceed to decide the substantive challenge to the order denying renewal of permission on the ground of denial of security clearance by the Ministry of Home Affairs., In 2010, Media Broadcast Ltd (MBL) applied for permission to uplink and downlink the news and current affairs television channel Media One. The Ministry of Home Affairs sought reports from the Intelligence Bureau and the Central Bureau of Investigation for granting security clearance. The Central Bureau of Investigation remarked that there was nothing adverse on record against MBL. The Intelligence Bureau reported that MBL shares a close association with Madhyamam Daily, and that the tenor of the articles carried out by Madhyamam Daily are adverse. To substantiate its conclusion on the adverse tenor of the articles, the Intelligence Bureau referred to reports of Madhyamam Daily on the alleged discrimination against Muslims in India and the alleged soft attitude taken against Hindu fundamentalists responsible for bomb blasts as opposed to the view taken against Muslim fundamentalists. The Ministry of Home Affairs considered the report and concluded that the remarks were not strong enough to deny permission on security grounds, thereby granting security clearance to MBL., Between 2014 and 2019, similar reports were submitted by the Intelligence Bureau when security clearance was sought for other proposals of MBL. The Intelligence Bureau made adverse remarks on MBL's main source of income, which was alleged to be from Jamaat-e-Islami Hind sympathisers, and its anti‑establishment stance. To substantiate its conclusion that MBL has been taking an anti‑establishment stance, references were made to its reports on the Unlawful Activities (Prevention) Act, Armed Forces (Special Powers) Act, development projects of the Government, encounter killings, Citizenship (Amendment) Act, National Register of Citizens, National Population Register, the Indian Judiciary's alleged double standards in terrorism cases, and the alleged portrayal of security forces in a bad light. The Ministry of Home Affairs denied security clearance based on the Intelligence Bureau reports. We are required to decide if these reasons provide a justifiable ground for the denial of security clearance, and consequently, restricting MBL's right to freedom of the press under Article 19(1)(a) of the Constitution., The freedom of the press, which is protected as a component of Article 19(1)(a), can only be restricted on the grounds stipulated in Article 19(2) of the Constitution. The grounds stipulated in Article 19(2) include the sovereignty and integrity of India, the security of the State, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation or incitement to an offence. We have already held in Part C of this judgment that security clearance is a requirement for renewal of an uplinking and downlinking licence. The denial of security clearance to operate a news channel is a restriction on the freedom of the press, and such restriction is constitutionally permissible only on the grounds stipulated in Article 19(2)., Though the courts have been using the proportionality standard to test the reasonableness of restrictions on fundamental rights after the decisions in Modern Dental (supra) and Justice K.S. Puttaswamy (supra), this has generally been deployed in the area of legislative action. The position laid down by the Supreme Court of India is that all violations of fundamental rights have to be tested on the standard of proportionality. The Court, under Article 13 of the Constitution, has the power to declare laws that violate fundamental rights to be void. For the purpose of the provision, law includes administrative action. The position of law that administrative action infringing fundamental freedoms has to be tested on the proportionality standard has been established by the Supreme Court of India in its earlier judgments. Thus, the action of the Ministry of Information and Broadcasting denying renewal of permission will be judicially reviewed based on the proportionality standard., The first test of the proportionality standard as laid down by the Supreme Court of India in Modern Dental (supra) requires the Court to assess if the measure restricting the right has a legitimate goal. Article 19, unlike other provisions of Part III of the Constitution, prescribes the purposes for which the rights recognised can be reasonably restricted. Thus, the purpose of the state action that is challenged must necessarily be traceable to the grounds stipulated in Article 19(2) to test if the freedom of the press has been reasonably restricted. Security clearance was denied on the basis of two grounds: the alleged anti‑establishment stand of MBL, and the alleged link of MBL to Jamaat-e-Islami Hind., An independent press is vital for the robust functioning of a democratic republic. Its role in a democratic society is crucial because it shines a light on the functioning of the State. The press has a duty to speak truth to power and present citizens with hard facts enabling them to make choices that propel democracy in the right direction. The restriction on the freedom of the press compels citizens to think along the same tangent. A homogenised view on issues that range from socioeconomic policy to political ideologies would pose grave dangers to democracy., The critical views of the channel Media One on policies of the Government cannot be termed anti‑establishment. The use of such a terminology in itself represents an expectation that the press must support the establishment. The action of the Ministry of Information and Broadcasting by denying a security clearance to a media channel on the basis of the views which the channel is constitutionally entitled to hold produces a chilling effect on free speech, and in particular on press freedom. Criticism of governmental policy can by no stretch of imagination be brought within the fold of any of the grounds stipulated in Article 19(2)., The note submitted by the Intelligence Bureau on the alleged role and activities of Jamaat-e-Islami Hind states that the organisation was banned three times and all three bans were revoked. The organisation was banned last in 1992 under the Unlawful Activities (Prevention) Act 1947. This Court nullified the ban in 1994. Thus, when Jamaat-e-Islami Hind is not a banned organisation, it would be rather precarious for the State to contend that the links with the organisation would affect the sovereignty and integrity of the nation, the security of the State, friendly relations with foreign states, or public order. Additionally, the only piece of evidence in the file to link MBL to Jamaat-e-Islami Hind is the alleged investment in the shares of MBL by cadres of Jamaat-e-Islami Hind. In support of this, the Intelligence Bureau has submitted a list of shareholders. However, there is no evidence on record to link them to Jamaat-e-Islami Hind. Thus, the allegation that MBL is linked to Jamaat-e-Islami Hind is fallacious, firstly because Jamaat-e-Islami Hind is not a banned organisation and there is no material to conclude that the investment by Jamaat-e-Islami Hind sympathisers would affect India's security, and secondly, even if it were accepted that the investment by Jamaat-e-Islami Hind sympathisers would affect the security of the State, there is no material to prove that the shareholders are sympathisers of Jamaat-e-Islami Hind. In view of the discussion above, the purpose of denying security clearance does not have a legitimate goal or a proper purpose., The Intelligence Bureau has noted that the above material against MBL attracts Sl. No. 20 and 22 of the security parameters annexed to the 2018 Guidelines which are used to assess security clearance proposals. Sl. No. 20 reads as \Involvement in religious proselytisation activities in India\, and Sl. No. 22 reads as \Intentional or systemic infringement of safety concerns or security systems endangering the safety of the public\. There is no rational nexus between the material submitted against MBL and the security parameters in Sl. No. 20 and 22. MBL cannot be said to be indulging in religious proselytisation for merely publishing reports on the alleged discrimination against the Muslim community in India, or infringing safety concerns by a mere reference to the shareholding pattern of MBL., Conclusion and Directions: In view of the discussion above, the appeals are allowed and the order of the Ministry of Information and Broadcasting dated 31 January 2022 and the judgment of the High Court dated 2 March 2022 are set aside. We summarise our findings below: (i) Security clearance is one of the conditions required to be fulfilled for renewal of permission under Uplinking and Downlinking Guidelines; (ii) The challenge to the order of the Ministry of Information and Broadcasting and judgment of the High Court on procedural grounds is allowed for the following reasons: (a) The principles of natural justice were constitutionalised by the judgment of this Court in Maneka Gandhi (supra). The effect is that the courts have recognised that there is an inherent value in securing compliance with the principles of natural justice independent of the outcome of the case. Actions which violate procedural guarantees can be struck down even if non‑compliance does not prejudice the outcome of the case. The core of the principles of natural justice breathes reasonableness into procedure. The burden is on the claimant to prove that the procedure followed infringes upon the core of procedural guarantees; (b) The appellants have proved that MBL's right to a fair hearing has been infringed by the unreasoned order of the Ministry of Information and Broadcasting dated 31 January 2022, and the non‑disclosure of relevant material to the appellants, and its disclosure solely to the Court. The burden then shifts on the respondents to prove that the procedure that was followed was reasonable and in compliance with the requirements of Articles 14 and 21 of the Constitution. The standard of proportionality has been used to test the reasonableness of the procedure; (c) The judgments of this Court in Ex‑Armymen's Protection Services (supra) and Digi Cable Network (supra) held that the principles of natural justice may be excluded when, on the facts of the case, national security concerns outweigh the duty of fairness; (d) Though confidentiality and national security are legitimate aims for the purpose of limiting procedural guarantees, the State has been unable to prove that these considerations arise in the present factual scenario. A blanket immunity from disclosure of all investigative reports cannot be granted; (e) The validity of the claim of involvement of national security considerations must be assessed on the test of (i) whether there is material to conclude that the non‑disclosure of information is in the interest of national security; and (ii) whether a reasonable prudent person would draw the same inference from the material on record; (f) Even assuming that non‑disclosure is in the interest of confidentiality and national security, the means adopted by the respondents do not satisfy the other prongs of the proportionality standard. The non‑disclosure of a summary of the reasons for the denial of security clearance to MBL, which constitutes the core irreducible minimum of procedural guarantees, does not satisfy the suitability prong; (g) The courts assess the validity of public interest immunity claims, which address the same harms as the sealed cover procedure, based on the structured proportionality standard. The power of courts to secure material in a sealed cover when contrasted with the scope of assessment of public interest immunity claims is rather unguided and ad‑hoc. The standard of review that is used by the courts in public interest immunity claims and the lack of such a standard in sealed cover proceedings to protect procedural safeguards indicates that public interest immunity claims constitute less restrictive means. Additionally, while public interest immunity claims conceivably impact the principles of natural justice, sealed cover proceedings infringe the principles of natural justice and open justice; (h) The courts could take the course of redacting confidential portions of the document and providing a summary of the contents of the document to fairly exclude materials after a successful public interest immunity claim; and (iii) The challenge to the order of the Ministry of Information and Broadcasting is allowed on substantive grounds. The non‑renewal of permission to operate a media channel is a restriction on the freedom of the press which can only be reasonably restricted on the grounds stipulated in Article 19(2) of the Constitution. The reasons for denying a security clearance to MBL, that is, its alleged anti‑establishment stance and the alleged link of the shareholders to Jamaat-e-Islami Hind, are not legitimate purposes for the restriction of the right of freedom of speech protected under Article 19(1)(a) of the Constitution. In any event, there was no material to demonstrate any link of the shareholders, as was alleged., While we have concluded that a public interest immunity claim is a less restrictive means, the dilution of procedural guarantees while hearing the claim cannot be ignored by the Supreme Court of India. It is only the Court and the party seeking non‑disclosure of the material who are privy to the public interest immunity proceedings. The Court has a duty to consider factors such as the relevance of the material to the case of the applicant while undertaking the proportionality standard to test the public interest immunity claim. However, the applicant who is unrepresented in the proceedings would be effectively impaired. While there may be material on serious concerns of national security which cannot be disclosed, the constitutional principle of procedural guarantees is equally important and it cannot be turned into a dead letter. As the highest constitutional court, it is our responsibility to balance these two considerations when they are in conflict. To safeguard the claimant against a potential injury to procedural guarantees in public interest immunity proceedings, we have recognised a power in the Court to appoint an amicus curiae. The appointment of an amicus curiae will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process., The amicus curiae appointed by the Supreme Court of India shall be given access to the materials sought to be withheld by the State. The amicus curiae shall be allowed to interact with the applicant and their counsel before the proceedings to ascertain their case to enable them to make effective submissions on the necessity of disclosure. However, the amicus curiae shall not interact with the applicant or their counsel after the public interest immunity proceeding has begun and the counsel has viewed the document sought to be withheld. The amicus curiae shall, to the best of their ability, represent the interests of the applicant. The amicus curiae would be bound by oath not to disclose or discuss the material with any other person, including the applicant or their counsel., Article 145 of the Constitution stipulates that all judgments of the Supreme Court shall only be delivered in open court. Though public interest immunity proceedings will take place in a closed setting, the Supreme Court of India is required to pass a reasoned order for allowing or dismissing the claim in open court. We are cognizant of the objection that an order justifying the reasons for allowing the claim would inevitably disclose information on the very material that it seeks to protect. The Court in such cases is still required to provide a reasoned order on the principles that it had considered and applied, even if the material that is sought not to be disclosed is redacted from the reasoned order. However, the redacted material from the reasoned order shall be preserved in the Court records which may be accessed by the courts in the future, if the need arises., The Civil Appeals are accordingly allowed. The Ministry of Information and Broadcasting shall now proceed to issue renewal permissions in terms of this judgment within four weeks and all other authorities shall cooperate in issuing necessary approvals. The interim order of this Court shall continue to operate until the renewal permissions are granted.
id_1268	0	Two important questions arise in these appeals first, as to whether an award delivered by an Emergency Arbitrator under the Arbitration Rules of the Singapore International Arbitration Centre (SIAC Rules) can be said to be an order under Section 17(1) of the Arbitration and Conciliation Act, 1996 (Arbitration Act); and second, as to whether an order passed under Section 17(2) of the Arbitration Act in enforcement of the award of an Emergency Arbitrator by a learned Single Judge of the Delhi High Court is appealable., The brief facts necessary to appreciate the context in which these two questions arise are as follows: Proceedings were initiated by the Appellant, Amazon.com NV Investment Holdings LLC (Amazon) before the Delhi High Court under Section 17(2) of the Arbitration Act to enforce the award/order dated 25 October 2020 of an Emergency Arbitrator, Mr V.K. Rajah, SC. This order was passed in arbitration proceedings SIAC Arbitration No. 960 of 2020 commenced by Amazon against Respondents No. 1 to 13, who are described as: Respondent No.1 Future Retail Limited, India’s second‑largest offline retailer (FRL); Respondent No.2 Future Coupons Private Limited, a company that holds 9.82% shareholding in FRL and is controlled and majority‑owned by Respondents No.3 to 11 (FCPL); Respondent No.3 Mr Kishore Biyani, Executive Chairman; Respondent No.8 Mr Rakesh Biyani, Managing Director of FRL; Respondents No.4 to 7 and 9 to 11 other members of the Biyani family, namely Ms Ashni Kishore Biyani, Mr Anil Biyani, Mr Gopikishan Biyani, Mr Laxminarayan Biyani, Mr Sunil Biyani, Mr Vijay Biyani, and Mr Vivek Biyani, who are promoters and shareholders of FRL; Respondents No.12 and 13 Future Corporate Resources Private Limited and Akar Estate and Finance Private Limited, group companies of FRL. Respondents No.1 to 13 are hereinafter collectively referred to as the Biyani Group., The seat of the arbitral proceedings is New Delhi, and as per the arbitration clause agreed upon by the parties, SIAC Rules apply., Three agreements were entered into between the parties. A Shareholders Agreement dated 12 August 2019 was entered into amongst the Biyani Group (FRL Shareholders Agreement). Under this Shareholders Agreement, Future Coupons Private Limited was accorded negative, protective, special, and material rights with regard to Future Retail Limited including, in particular, FRL’s retail stores. The rights granted to FCPL were to be exercised for Amazon’s benefit and thus were mirrored in a Shareholders Agreement dated 22 August 2019 entered into between Amazon, FCPL, and Respondents No.3 to 13 (FCPL Shareholders Agreement). Amazon agreed to invest a sum of Rs 1,431 crore in FCPL based on the rights granted to FCPL under the FRL Shareholders Agreement and the FCPL Shareholders Agreement. This investment was recorded in the Share Subscription Agreement dated 22 August 2019 entered into between Amazon, FCPL, and Respondents No.3 to 13 (Share Subscription Agreement). It was expressly stipulated that this investment in FCPL would flow down to FRL. The basic understanding between the parties was that Amazon’s investment in the retail assets of FRL would continue to vest in FRL, so that FRL could not transfer its retail assets without FCPL’s consent, which could not be granted unless Amazon had provided its consent. FRL was also prohibited from encumbering, transferring, selling, divesting, or disposing of its retail assets to restricted persons, being prohibited entities, with whom FRL, FCPL, and the Biyani family could not deal. A list of such restricted persons was set out in Schedule III of the FCPL Shareholders Agreement and also under the FRL Shareholders Agreement vide letter dated 19 December 2019. The Mukesh Dhirubhai Ambani group (Reliance Industries group) is a restricted person under both Shareholders Agreements., On 26 December 2019, Amazon invested the aforesaid sum of Rs 1,431 crore in FCPL which flowed down to FRL on the very same day. The bone of contention between the parties is that within a few months from the date of this investment, i.e., on 29 August 2020, Respondents No.1 to 13 entered into a transaction with the Mukesh Dhirubhai Ambani group which envisages the amalgamation of FRL with that group, the consequential cessation of FRL as an entity, and the complete disposal of its retail assets in favour of the said group., Amazon initiated arbitration proceedings and filed an application on 5 October 2020 seeking emergency interim relief under the SIAC Rules, asking for injunctions against the aforesaid transaction. Mr V.K. Rajah, SC was appointed as the Emergency Arbitrator, heard detailed oral submissions from all parties and then passed an interim award dated 25 October 2020, in which the Arbitrator issued the following injunctions/directions: (a) the Respondents are injuncted from taking any steps in furtherance or in aid of the Board Resolution made by the Board of Directors of FRL on 29 August 2020 in relation to the Disputed Transaction, including but not limited to filing or pursuing any application before any person, including regulatory bodies or agencies in India, or requesting approval at any company meeting; (b) the Respondents are injuncted from taking any steps to complete the Disputed Transaction with entities that are part of the Mukesh Dhirubhai Ambani group; (c) without prejudice to the rights of any current Promoter Lenders, the Respondents are injuncted from directly or indirectly taking any steps to transfer, dispose, alienate, or encumber FRL’s retail assets or the shares held in FRL by the promoters in any manner without the prior written consent of the Claimant; (d) the Respondents are injuncted from issuing securities of FRL or obtaining financing, directly or indirectly, from any Restricted Person that will be contrary to Section 13.3.1 of the FCPL Shareholders Agreement; (e) the orders in (a) to (d) are to take effect immediately and will remain in place until further order from the Tribunal; (f) the Claimant is to provide within seven days a cross‑undertaking in damages to the Respondents, and if the parties are unable to agree on its terms, they are to refer their differences to the Emergency Arbitrator for resolution; and (g) the costs of this application are to be part of the costs of this arbitration., The Biyani Group thereafter went ahead with the impugned transaction, describing the award as a nullity and the Emergency Arbitrator as coram non judice in order to press forward for permissions before statutory authorities. FRL, consistent with this stand, did not challenge the Emergency Arbitrator’s award under Section 37 of the Arbitration Act, but instead filed a civil suit before the Delhi High Court (Civil Suit No. 493 of 2020) seeking to interdict the arbitration proceedings and asking for interim relief to restrain Amazon from writing to statutory authorities, calling it tortious interference with its civil rights. A learned Single Judge of the Delhi High Court, after finding a prima facie case of tortious interference, refused to grant any interim injunction, stating that the principles for grant of interim injunction – prima facie case, irreparable loss and balance of convenience – were required to be tested. The judge observed that although a prima facie case was made out, the balance of convenience lay both in favour of FRL and Amazon, and that it would be a matter of trial to determine whether Amazon’s representation that the transaction was in breach of the Shareholders Agreements would outweigh the plea of FRL. The judge further held that no interim injunction could be granted because both parties had already made representations to the statutory authorities and it was for those authorities to decide. Consequently, the application was disposed of, declining the grant of interim injunction, and directing the statutory authorities to take decisions in accordance with law. No appeal against this order was filed by the Biyani Group. Amazon filed an appeal against certain observations in the order, which is pending., Meanwhile, Amazon went ahead with an application filed under Section 17(2) of the Arbitration Act which was heard and disposed of by a learned Single Judge of the Delhi High Court. On 2 February 2021, the judge passed a status‑quo order restraining the Biyani Group from going ahead with the impugned transaction, stating that reasons and a detailed order would follow. An appeal against this was filed by FRL, and a Division Bench, by order dated 8 February 2021, after setting out the facts of the case and reaching certain prima facie findings, stayed the operation, implementation, and execution of the Single Judge order dated 2 February 2021 till the next date of hearing, and listed the appeal for further hearing on 26 February 2021. Meanwhile, on 22 February 2021, the Supreme Court of India allowed the amalgamation proceedings pending before the National Company Law Tribunal to continue, but not to culminate in any final order of sanction of scheme of amalgamation., On 18 March 2021, the learned Single Judge passed a detailed judgment giving reasons for an order made under Section 17(2) read with Order XXXIX, Rule 2‑A of the Code of Civil Procedure, holding that an Emergency Arbitrator’s award is an order under Section 17(1) of the Arbitration Act. Since breaches of the agreements were admitted and the only plea was that the Emergency Arbitrator’s award was a nullity, the judge held that such award was enforceable as an order under the Arbitration Act, and found that the injunctions/directions granted by the award were deliberately flouted by the Biyani Group. The judge also held that alleged violations of the Foreign Exchange Management Act, 1999 did not render the award a nullity, and therefore issued a show‑cause notice under Order XXXIX, Rule 2‑A of the Code of Civil Procedure, after imposing Rs 20 lakh as costs to be deposited with the Prime Minister Relief Fund for providing COVID vaccinations to the Below Poverty Line senior citizens of Delhi. The judge then directed: 188. The Emergency Arbitrator is an Arbitrator for all intents and purposes; order of the Emergency Arbitrator is an order under Section 17(1) and enforceable as an order of this Court under Section 17(2) of the Arbitration and Conciliation Act. 189. Respondent No.2 is a proper party to the arbitration proceedings and the Emergency Arbitrator has rightly invoked the Group of Companies doctrine by applying the well‑settled principles laid down by the Supreme Court in Chloro Controls (supra), Cheran Properties (supra) and MTNL (supra). 190. The respondents have raised a plea contrary to the well‑settled law relating to Group of Companies doctrine laid down by the Supreme Court. 191. The respondents have raised a vague plea of Nullity without substantiating the same. The interim order of the Emergency Arbitrator is not a Nullity as alleged by respondent. 192. Combining/treating all the agreements as a single integrated transaction does not amount to control of the petitioner over FRL and therefore, the petitioner’s investment does not violate any law. 193. All the objections raised by the respondents are hereby rejected with cost of Rs 20,00,000 to be deposited by the respondents with the Prime Minister Relief Fund for being used for providing COVID vaccination to the Below Poverty Line senior citizens of Delhi. The cost be deposited within a period of two weeks and the receipt be placed on record within one week of the deposit. 194. The respondents have deliberately and wilfully violated the interim order dated 25 October 2020 and are liable for the consequences enumerated in Order XXXIX Rule 2‑A of the Code of Civil Procedure. 195. In exercise of power under Order XXXIX Rule 2‑A(1) of the Code of Civil Procedure, the assets of respondents No.1 to 13 are hereby attached. Respondents No.1 to 13 are directed to file an affidavit of their assets as on today in Form 16A, Appendix E under Order XXI Rule 41(2) of the Code of Civil Procedure within 30 days. Respondent No.1, 2, 12 and 13 are directed to file an additional affidavit in the format of Annexure B‑1 and respondents No.3 to 11 are directed to file an additional affidavit in the format of Annexure A‑1 to the judgment of M/s Bhandari Engineers & Builders Pvt. Ltd. v. M/s Maharia Raj Joint Venture, along with the documents mentioned therein within 30 days. 196. Show cause notice is hereby issued to respondents No.3 to 13 to show cause why they be not detained in civil prison for a term not exceeding three months under Order XXXIX Rule 2‑A(1) of the Code of Civil Procedure for violation of the order dated 25 October 2020. Reply to the show cause notice be filed within two weeks. Rejoinder within two weeks thereafter. 197. The respondents are directed not to take any further action in violation of the interim order dated 25 October 2020. The respondents are further directed to approach all the competent authorities for recall of the orders passed on their applications in violation of the interim order dated 25 October 2020 within two weeks. The respondents are directed to file an affidavit to place on record the actions taken by them after 25 October 2020 and the present status of all those actions at least three days before the next date of hearing. 198. Respondents No.3 to 11 shall remain present before this Court on the next date of hearing. The matter was listed for further directions on 28 April 2021., Against this detailed judgment, FAO No. 51 of 2021 was filed by FRL. By the second impugned judgment dated 22 March 2021, a Division Bench of the Delhi High Court referred to its earlier order dated 8 February 2021 and stayed the learned Single Judge’s detailed judgment and order for the same reasons till the next date of hearing, which was 30 April 2021. Special Leave Petitions were filed before the Supreme Court of India, and by its order dated 19 April 2021 the Supreme Court stayed further proceedings before the learned Single Judge as well as the Division Bench of the Delhi High Court, and set the matter down for final disposal before the Supreme Court of India., Mr Gopal Subramanium, learned Senior Advocate appearing on behalf of Amazon, castigated the impugned orders of the Division Bench as suffering from a complete non‑application of mind, noting that the order dated 8 February 2021 referred to three agreements, the third being between FRL and Reliance Retail Ltd., which is an error apparent on the face of the record, and that Amazon is not a party to that agreement. He argued that an appeal against an order under Section 17(2) of the Arbitration Act would be maintainable under the Code of Civil Procedure on the basis of the reasoning contained in South Delhi Municipal Corporation v. Tech Mahindra, relying upon paragraphs 8 to 11 thereof, and that had the Division Bench referred to paragraphs 12 and 13, it would be clear that the authority would be the opposite, rendering an appeal under Order XLIII, Rule 1(r) of the Code of Civil Procedure non‑maintainable when read with Section 37 of the Arbitration Act. He further observed that the prima facie findings that the agreements are between different parties and therefore the group‑of‑companies doctrine cannot be invoked were made without reasoning, betraying a complete non‑application of mind. He contended that the second impugned order, being a reiteration of the first, suffers from the same malady., Mr Subramanium then referred to Sections 2(1)(a), 2(1)(c), 2(1)(d), 2(6), 2(8) and 19(2) to argue that the Arbitration Act reflects the grundnorm of arbitration as being party autonomy, which is respected by these provisions and delineated in several judgments of the Supreme Court of India. He referred to Section 37, pointing out that an appeal under Section 37(2)(b) is restricted to granting or refusing to grant an interim measure under Section 17, which would refer to Section 17(1) and not Section 17(2). He argued that the Arbitration Act is a complete code in itself and if an appeal does not fall within the four corners of Section 37, then it is incompetent, as has been held by several judgments of the Supreme Court of India., He also referred to various judgments of the Supreme Court of India, arguing that an Emergency Arbitrator’s award can never be characterised as a nullity and must be obeyed until set aside. He noted that no appeal was made from the award by the Biyani Group, therefore it was not permissible to go behind the award. He cited judgments that non‑signatories to arbitration agreements would nevertheless be bound, and that the ultimate controlling person behind the transaction was Mr Kishore Biyani, defined as such under the three agreements., He argued that the Foreign Exchange Management Act is wholly unlike the Foreign Exchange Regulation Act, 1973 and does not contain any provision nullifying an agreement, even assuming there was a breach thereof., Mr Aspi Chinoy, learned Senior Advocate appearing on behalf of Amazon, argued that no equity can be found in favour of the Biyani Group as the breach of the Emergency Arbitrator’s award had been admitted by them, and therefore they have no case on merits to resist the directions issued by the learned Single Judge under Section 17(2) of the Arbitration Act. He also argued that enforcement orders were made under the Arbitration Act and not under the Code of Civil Procedure, so the appeal filed under Order XLIII, Rule 1(r) would not be maintainable. He referred to a Division Bench judgment of the Bombay High Court in Kakade Construction Co. Ltd. v. Vistra ITCL to support his submission., Mr Ranjit Kumar, learned Senior Advocate appearing on behalf of Amazon, referred to Sections 9 and 17 of the Arbitration Act and the Arbitration and Conciliation (Amendment) Act, 2015 which brought Section 17 into line with Section 9. He argued that Section 9(3) shows legislative intent to obtain interim orders from an arbitral tribunal so as to decongest courts, and that an Emergency Arbitrator’s award is a step in the right direction. He also pointed out that the amendment added a non‑obstante clause to Section 37(1), making clear that unless an appeal falls within the four corners of Section 37, no other appeal can be filed., Mr Harish Salve, learned Senior Advocate appearing on behalf of FRL, argued that an Emergency Arbitrator’s award cannot be said to fall under Section 17(1) of the Arbitration Act. He cited the 246th Law Commission Report, which advocated amendment of Section 2 of the Arbitration Act to include a provision for the appointment of an Emergency Arbitrator, but Parliament did not adopt it when amending the Act by the 2015 Amendment Act, indicating that such orders would not fall within Section 17(1). He read Sections 10 to 13, 16, 17, 21, 23, 27, 29A and 30, arguing that an arbitral tribunal as defined by Section 2(1)(d) can only mean a tribunal constituted between the parties that finally decides disputes, and cannot include an Emergency Arbitrator who only decides an interim dispute. He contended that the scheme of Part I of the Act shows that an Emergency Arbitrator is foreign to the Act unless Parliament amends it., He further argued, pointing to clause 25.2 of the arbitral agreement contained in the FCPL Shareholders Agreement (mirrored in the FRL Shareholders Agreement as clause 15.2), that the SIAC Rules relating to an Emergency Arbitrator’s award were subject to the Arbitration Act, and since the Act does not provide for Emergency Arbitrators, that part of the SIAC Rules would not apply, making it clear that an Emergency Arbitrator’s award cannot fall within Section 17(1). He also contrasted the Arbitration Act with statutes of Singapore, New Zealand, Hong Kong and England, which expressly include Emergency Arbitrator’s awards., He clarified that the appeal filed in the present case was not under Section 37 of the Arbitration Act but under Order XLIII, Rule 1(r) of the Code of Civil Procedure. He read Section 9 together with Section 37 to stress that orders may be made under Section 9 until enforcement of an award in accordance with Section 36, and that Section 36 makes clear that the contours of Section 37 do not go beyond orders and awards made under the Arbitration Act. Since orders made in enforcement proceedings are under the Code of Civil Procedure, appeals can be filed from such orders under the Code of Civil Procedure. He emphasized that Section 17(2) deems an order passed under Section 17(1) to be an order of the court for all purposes and enforceable under the Code of Civil Procedure, and that the learned Single Judge exercised powers only under Order XXXIX, Rule 2‑A of the Code of Civil Procedure, not under the Arbitration Act. He noted anomalies if the construction suggested by Mr Subramanium were accepted, such as third‑party objectors to an order under Section 17(2) having no right of appeal., Mr K.V. Viswanathan, learned Senior Advocate appearing on behalf of FRL, argued that the words ‘as if’ contained in Section 17(2) create a legal fiction meaning enforcement proceedings are outside the Arbitration Act and within the Code of Civil Procedure, and that the reference to the Code of Civil Procedure in Section 17(2) is legislation by reference, not incorporation.
id_1268	1	He then reiterated that the expression \due regard\ contained in Section 36(3) is fundamentally different from the expression under the Code of Civil Procedure, and that Section 36(1) and Section 17(2) are pari materia provisions, distinct from Section 36(3), under which a stay of an award may be granted under the Arbitration Act with due regard to the Code of Civil Procedure. He added that when different words are used in different provisions, they are meant to be differentiated. He also cited judgments to buttress each one of these submissions. He then discussed various High Court judgments which show that, in practice, appeals filed against orders and awards sought to be enforced are filed under the Code of Civil Procedure and not under the Arbitration Act., He referred to Section 17(1) and, in particular, to the expression that the arbitral tribunal shall have the same power for making orders as the court has for the purpose of, and in relation to, any proceedings before it, and argued that the expression \in relation to\ refers only to incidental powers given to the tribunal and not to powers of enforcement. He also argued that the expression \arbitral tribunal\ in Section 17(1) is to be read as defined by Section 2(1)(d), there being nothing in the context of Section 17(1) to the contrary which would obviate the application of Section 2(1)(d). He referred to the arbitration clause between the parties to argue that the parties contemplated, by virtue of Section 25.2 of the FCPL Shareholders Agreement, that only civil courts could pass interim orders until the arbitral tribunal is properly constituted by the parties. He then referred to a recent judgment of the Supreme Court of India, namely National Highways Authority of India v. M. Hakeem, 2021 SCC OnLine SC 473, arguing that Section 17 was like Section 34(1) of the Arbitration Act in that nothing could be read into Section 17 so as to incorporate awards made by an Emergency Arbitrator., He argued that, on a reading of Schedule 1 of the Singapore International Arbitration Centre Rules, an Emergency Arbitrator cannot be said to be like an arbitral tribunal because, under Rule 3, the President of the Singapore International Arbitration Centre must first decide whether an Emergency Arbitrator is to be appointed at all. Under Rule 9, an administrative authority alone is given the power to extend time in the circumstances mentioned in the Rule, and under Rule 10, an Emergency Arbitrator has no power to act after the arbitral tribunal is constituted, the tribunal not being bound by any reasons given by the Emergency Arbitrator. From this, he argued that an Emergency Arbitrator does not fit within the Arbitration Act as such arbitrator is not an independent quasi‑judicial body under the Rules., He referred to certain judgments and authorities for the proposition that a proper reading of Exception 1 to Section 28 of the Indian Contract Act, 1872 would show that the civil court's jurisdiction is ousted and that only what is expressly provided for by the ouster provisions can be given effect to, as nothing can be implied therein. He argued that the learned Single Judge was in a great hurry to decide the case and did not give sufficient time to the respondents to file objections to the enforcement application, though he conceded that notes of written arguments, including the objection that an award by an Emergency Arbitrator was a nullity, were raised before the learned Single Judge. He also cited various judgments to show that this was a case in which the Emergency Arbitrator lacked inherent jurisdiction, as a result of which his clients were justified in ignoring the award passed by the Emergency Arbitrator., Mr. Vikram Nankani, learned Senior Advocate appearing on behalf of Respondents No. 1 to 12 in Civil Appeal Nos. 4496‑4497 of 2021 and Respondents No. 2 to 13 in Civil Appeal Nos. 4494‑4495 of 2021, pointed out that in the enforcement application, on the facts of this case, it was specifically pleaded that the High Court was being approached as a civil court, and that the application was filed only under Order XXXIX, Rule 2‑A. He cited judgments to show that the provisions of Order XXXIX, Rule 2‑A, being punitive in nature and requiring a heightened standard of wilful disobedience, cannot be applied routinely or in the cavalier manner in which the learned Single Judge applied the provision. He also referred to the fact that only the Singapore International Arbitration Centre Rules pertaining to arbitration stricto sensu were agreed to between the parties, which would exclude rules relating to awards by an Emergency Arbitrator. He distinguished the judgment in Kakade Construction relied upon by Mr. Chinoy and the judgment in Jet Airways (India) Ltd. v. Subrata Roy Sahara, 2011 SCC OnLine Bom 1379, stating that they applied only to Section 36 of the Arbitration Act and are not authorities qua Section 17, which is the subject matter of argument in the present case., Having heard learned counsel for the parties, the first question to be determined by the Supreme Court of India is whether an Emergency Arbitrator's award can be said to be within the contemplation of the Arbitration Act, and whether it can further be said to be an order under Section 17(1) of the Act., The relevant provisions of the Arbitration Act, so far as this contention is concerned, are as follows: Definitions. (1) In this Part, unless the context otherwise requires, (a) arbitration means any arbitration whether or not administered by a permanent arbitral institution; (c) arbitral award includes an interim award; (d) arbitral tribunal means a sole arbitrator or a panel of arbitrators; (6) Construction of references. Where this Part, except Section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person, including an institution, to determine that issue. (8) Where this Part (a) refers to the fact that the parties have agreed or that they may agree, or (b) in any other way refers to an agreement of the parties, that agreement shall include any arbitration rules referred to in that agreement. Determination of rules of procedure. (2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings. Commencement of arbitral proceedings. Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent., A reading of these provisions shows that an arbitration proceeding can be administered by a permanent arbitral institution. Importantly, Section 2(6) makes it clear that parties are free to authorise any person, including an institution, to determine issues that arise between the parties. Under Section 2(8), party autonomy extends to agreements that include arbitration rules referred to in the agreement. Likewise, under Section 19(2), parties are free to agree on the procedure to be followed by an arbitral tribunal. Section 21 provides that arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent, subject to agreement by the parties., Rule 3.3 of the Singapore International Arbitration Centre Rules reads: “The date of receipt of the complete Notice of Arbitration by the Registrar shall be deemed to be the date of commencement of the arbitration. For the avoidance of doubt, the Notice of Arbitration is deemed to be complete when all the requirements of Rule 3.1 and Rule 6.1(b) (if applicable) are fulfilled or when the Registrar determines that there has been substantial compliance with such requirements. The Singapore International Arbitration Centre shall notify the parties of the commencement of the arbitration.” By agreeing to the application of the Singapore International Arbitration Centre Rules, the arbitral proceedings in the present case can be said to have commenced from the date of receipt of a complete notice of arbitration by the Registrar, which indicates that arbitral proceedings under the Rules commence much before the constitution of an arbitral tribunal. When Section 17(1) uses the expression “during the arbitral proceedings”, the expression would be elastic enough, when read with Section 21 of the Act, to include emergency arbitration proceedings, which only commence after receipt of notice of arbitration by the Registrar., A conjoint reading of these provisions, coupled with there being no interdict, either express or by necessary implication, against an Emergency Arbitrator, would show that an Emergency Arbitrator's orders, if provided for under institutional rules, would be covered by the Arbitration Act., As a matter of fact, a number of judgments of the Supreme Court of India have referred to the importance of party autonomy as one of the pillars of arbitration in the Arbitration Act. In Antrix Corporation Ltd. v. Devas Multimedia Pvt. Ltd., (2014) 11 SCC 560, this Court held that the parties were entitled to invoke the Rules of Arbitration of the International Chamber of Commerce for the conduct of the arbitration proceedings, and that the invocation of the ICC Rules would be subject to challenge in appropriate proceedings but not by way of an application under Section 11(6) of the 1996 Act. Similarly, in Bharat Aluminium Co. v. Kaiser Aluminium Technical Services Inc., (2016) 4 SCC 126, this Court stated that party autonomy is the guiding spirit in arbitration, allowing parties to agree on three different laws governing their contract, arbitration agreement, and conduct of arbitration (curial law). The interplay of these laws has been explained in Sumitomo Heavy Industries Ltd. v. ONGC Ltd., (1998) 1 SCC 305, and consistently followed in subsequent decisions including Reliance Industries Ltd. v. Union of India, (2014) 7 SCC 603., In the matter of interpretation, the court has to adopt different approaches depending upon the instrument falling for interpretation. Legislative drafting is made by experts and is subjected to scrutiny at different stages before it takes final shape. Documents drafted by laypersons have comparatively lower legal quality. In the present case, being a contract executed between the parties, the court cannot adopt an approach for interpreting a statute. The terms of the contract must be understood in the way the parties intended. In arbitration agreements, where party autonomy is the grundnorm, how the parties worked out the agreement is an indicator to decipher intention, apart from the plain grammatical meaning of the expressions., The importance of party autonomy in arbitration and commercial contracts was further delineated in Centrotrade Minerals & Metal Inc. v. Hindustan Copper Ltd., (2017) 2 SCC 228. The Court observed that party autonomy is virtually the backbone of arbitrations and reiterated the principles set out in Bharat Aluminium Co. and Sumitomo Heavy Industries Ltd., A recent judgment in National Highways Authority of India v. M. Hakeem dealt with certain provisions of the National Highways Act, 1956, which laid down a scheme of acquisition different from that contained in the Land Acquisition Act, 1984. As part of that scheme, arbitral awards passed under the National Highways Act were challengeable only under Section 34 of the Arbitration Act. The Court held that Section 34, being a verbatim reproduction of Article 34 of the UNCITRAL Model Law, does not contain any power to modify an arbitral award; only an amendment of the Arbitration Act could achieve that., By contrast, the present case is akin to Centrotrade. The parties, by agreeing to the Singapore International Arbitration Centre Rules and the award of an Emergency Arbitrator, have not bypassed any mandatory provision of the Arbitration Act. Nothing in the Act prohibits contracting parties from agreeing to a provision providing for an award made by an Emergency Arbitrator; on the contrary, the provisions speaking of party autonomy support that such rules would apply to govern the rights between the parties., Mr. Salve, relying on Sections 10 to 13, 16, 17, 21, 23, 27, 29A, and 30 of the Arbitration Act, argued that the arbitral tribunal defined in Section 2(1)(d) is exhaustively defined as a sole arbitrator or a panel of arbitrators, which can pass interim and final awards only after being constituted. He contrasted Section 9(1) with Section 17(1), contending that Section 17(1) applies only when a party applies to an arbitral tribunal for interim relief, which cannot apply to an Emergency Arbitrator appointed before a tribunal is constituted. He noted that under Section 9(1), an interim measure by the courts may be availed even before arbitral proceedings commence, up to the stage of enforcement under Section 36., While the definition in Section 2(1)(d) speaks of a tribunal constituted between the parties, the definition of arbitration in Section 2(1)(a) includes any arbitration, whether or not administered by a permanent arbitral institution. Read with Sections 2(6) and 2(8), this makes it clear that interim orders passed by Emergency Arbitrators under the rules of a permanent arbitral institution would, on a proper reading of Section 17(1), be included within its ambit. The term “arbitral proceedings” is not limited by any definition and thus encompasses proceedings before an Emergency Arbitrator, as held with reference to Section 21 of the Act read with the Singapore International Arbitration Centre Rules., The heart of Section 17(1) is the application by a party for interim reliefs. There is nothing in Section 17(1), when read with the other provisions of the Act, to interdict the application of rules of arbitral institutions that the parties may have agreed to. Accordingly, an Emergency Arbitrator, when institutional rules apply, would be included within the scope of Section 17(1). The same object and context would apply to Section 9(3), which makes clear that the court shall not entertain an application for interim relief once an arbitral tribunal is constituted unless circumstances exist which may render the remedy under Section 17 ineffective. Since Sections 9(3) and 17 form part of one scheme, an arbitral tribunal as defined under Section 2(1)(d) would not apply, and the tribunal spoken of in Section 9(3) would be like that in Section 17(1), including an Emergency Arbitrator appointed under institutional rules., Mr. Salve relied upon Firm Ashok Traders v. Gurumukh Das Saluja, (2004) 3 SCC 155, which held that under the Arbitration and Conciliation Act, 1996, the Arbitral Tribunal is empowered by Section 17 to make orders amounting to interim measures. Section 9 operates only during the existence of the Arbitral Tribunal; pre‑ and post‑arbitral proceedings require approach to the court. The present question is whether the Emergency Arbitrator's award can be said to be by an arbitral tribunal as defined, and does not hinge on when a party may approach a court under Section 9., Mr. Salve further argued that the arbitration agreement contained in Section 25.2 of the FCPL Shareholders Agreement (pari materia with Section 15.2 of the FRL Shareholders Agreement) makes clear that the Singapore International Arbitration Centre Rules would be subject to the Indian Arbitration Act, and therefore the provisions governing an award made by an Emergency Arbitrator under those Rules would not be applicable between the parties. Section 25.1 provides that the agreement is governed by the laws of India and that courts at New Delhi shall have exclusive jurisdiction. Section 25.2 sets out the dispute resolution mechanism, referring disputes to arbitration under the Singapore International Arbitration Centre Rules. As held above, it is incorrect to say that Section 17(1) excludes an Emergency Arbitrator's orders; the Act, properly construed, would include such awards, and there is no inconsistency in the Rules when read with the Act., Mr. Nankani's argument that the arbitration agreement in Section 25.2 indicates that the Singapore International Arbitration Centre Rules were agreed upon only insofar as arbitration alone is concerned is also incorrect. Rule 1.3 of the Singapore International Arbitration Centre Rules indicates that an award of an Emergency Arbitrator is included within the ambit of these Rules, and that an Emergency Arbitrator means an arbitrator appointed in accordance with paragraph 3 of Schedule 1.
id_1268	2	It is clear beyond doubt that arbitration mentioned in section 25.2 of the First Capital Private Limited Shareholders Agreement would include an arbitrator appointed in accordance with the Singapore International Arbitration Centre Rules, which in turn would include an Emergency Arbitrator., The Singapore International Arbitration Centre Rules, which are immediately relevant, deal with the concept of an Emergency Arbitrator as follows: Rule 1, Scope of Application and Interpretation, clause 1.3 defines ‘Award’ to include a partial, interim or final award and an award of an Emergency Arbitrator; ‘Emergency Arbitrator’ means an arbitrator appointed in accordance with paragraph 3 of Schedule 1. Rule 30, Interim and Emergency Relief, provides that the Tribunal may, at the request of a party, issue an order or an award granting an injunction or any other interim relief it deems appropriate, and may require the requesting party to provide appropriate security., A party wishing to seek emergency interim relief prior to the constitution of the Tribunal may apply for such relief pursuant to the procedures set forth in Schedule 1. The application must be filed with the Registrar concurrent with or following the filing of a Notice of Arbitration but before the Tribunal is constituted, and a copy must be sent to all other parties. The application must state the nature of the relief sought, the reasons why the party is entitled to such relief, and include a statement certifying that all other parties have been provided with a copy of the application or, if not, an explanation of the steps taken in good faith to provide a copy or notification., If the President determines that the Singapore International Arbitration Centre should accept the application for emergency interim relief, he shall seek to appoint an Emergency Arbitrator within one day of receipt of the application by the Registrar and payment of the administration fee and deposits. If the parties have agreed on the seat of the arbitration, that seat shall be the seat of the proceedings for emergency interim relief; otherwise the seat shall be Singapore, without prejudice to the Tribunal’s determination of the seat under Rule 21.1. Prior to accepting appointment, a prospective Emergency Arbitrator must disclose to the Registrar any circumstances that may give rise to justifiable doubts as to his impartiality or independence, and any challenge to the appointment must be made within two days of the Registrar’s communication of the appointment., An Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dispute unless otherwise agreed by the parties. The Emergency Arbitrator shall have the power to order or award any interim relief he deems necessary, including preliminary orders pending any hearing, telephone or video conference or written submissions. He shall give summary reasons for his decision in writing and may modify or vacate the preliminary order, the interim order or award for good cause., The Emergency Arbitrator shall make his interim order or award within fourteen days from the date of his appointment unless, in exceptional circumstances, the Registrar extends the time. No interim order or award shall be made until it has been approved by the Registrar as to its form. The Emergency Arbitrator has no power to act after the Tribunal is constituted; the Tribunal may reconsider, modify or vacate any interim order or award issued by the Emergency Arbitrator, including a ruling on his own jurisdiction, and is not bound by the reasons given by the Emergency Arbitrator. Any interim order or award issued by the Emergency Arbitrator shall cease to be binding if the Tribunal is not constituted within ninety days of such order or award, or when the Tribunal makes a final award or if the claim is withdrawn., The parties agree that an order or award by an Emergency Arbitrator pursuant to Schedule 1 shall be binding on the parties from the date it is made, and they undertake to carry out the interim order or award immediately and without delay. The parties also irrevocably waive their rights to any form of appeal, review or recourse to any State court or other judicial authority with respect to such award insofar as such waiver may be validly made., A reading of the aforesaid Rules indicates that even before an arbitral Tribunal is constituted, urgent interim relief can be granted by an Emergency Arbitrator. Under paragraph 7 of Schedule 1, the Emergency Arbitrator has all the powers vested in the arbitral tribunal pursuant to the Singapore International Arbitration Centre Rules, including the authority to rule on his own jurisdiction. Paragraph 8 of Schedule 1 empowers the Emergency Arbitrator to order such interim relief as he deems necessary and to give summary reasons in writing. Paragraph 9 requires the interim order to be made within fourteen days of appointment, unless the time is extended. Once the arbitral tribunal is constituted, it may reconsider, modify or vacate any such interim order, which will continue to bind the parties until modified, vacated, a final award is made, or the claim is withdrawn. Paragraph 10 provides that any interim order or award shall cease to be binding only if the tribunal is not constituted within ninety days., The 246th Law Commission Report recommended the insertion of an Emergency Arbitrator’s orders into Section 2(1)(d) of the Arbitration and Conciliation Act, 1996, by adding the words ‘and, in the case of an arbitration conducted under the rules of an institution providing for appointment of an emergency arbitrator, includes such emergency arbitrator’. The note indicated that this amendment was intended to give statutory recognition in India to institutional rules such as the Singapore International Arbitration Centre Rules that provide for an emergency arbitrator., In Avitel Post Studioz Ltd. & Ors. v. HSBC PI Holdings (Mauritius) Ltd., (2021) 4 Supreme Court of India 713, the Supreme Court held that the mere fact that a recommendation of a Law Commission Report is not followed by Parliament does not necessarily mean that the suggestion cannot form part of the statute as properly interpreted., Paragraph 52 of the 246th Law Commission Report reads: ‘The Commission believes that it is important to set this entire controversy to rest and make issues of fraud expressly arbitrable and to this end has proposed amendments to Section 16.’ The Report then proposed an amendment to insert Section 16(7) stating that the Arbitral Tribunal shall have the power to make an award or give a ruling notwithstanding that the dispute involves a serious question of law, complicated questions of fact or allegations of fraud, corruption, etc., Mr. Saurabh Kirpal argued that because Parliament did not incorporate Section 16(7) in the 2015 Amendment Act, the proposal remains without legislative force, and cited La Pintada (President of India v. La Pintada Compania Navigacion SA, 1985 AC 104) to support the view that a recommendation not enacted cannot be treated as law., Lord Brandon of Oakbrook, in the La Pintada judgment, described three scenarios concerning late payment of a debt and the availability of remedies, illustrating the complexity of applying the ratio of N. Radhakrishnan v. Maestro Engineers (2010) 1 Supreme Court of India 72 as a binding precedent given subsequent developments in the law., The High‑Level Committee chaired by Justice B.N. Srikrishna submitted its report on 30 July 2017, noting significant uncertainty regarding the enforceability of emergency awards in arbitrations seated in India. The Committee observed that while the Law Commission’s 246th Report recommended recognising the concept of an emergency arbitrator by widening the definition of ‘arbitral tribunal’ under Section 2(d) of the Arbitration and Conciliation Act, this recommendation was not incorporated in the 2015 Amendment Act. The Committee contrasted India’s position with Singapore, which amended its International Arbitration Act in 2012, and Hong Kong, which introduced Part 3A in 2013 to allow enforcement of emergency relief., The Delhi High Court, in Raffles Design International India Pvt. Ltd. & Anr. v. Educomp Professional Education Ltd. & Ors., (2016) 234 Delhi Law Times 349, held that an emergency award in an arbitration seated outside India is not enforceable in India. The judgment noted that Section 17(2) of the Arbitration and Conciliation Act could potentially be interpreted to enforce emergency awards for arbitrations seated in India, and recommended amendment of the Act to align with international practice., The Law Commission also recommended inserting Sections 9(2) and 9(3) into the Arbitration and Conciliation Act. Section 9(2) would require that where a court grants an interim measure of protection before the arbitral proceedings commence, the arbitral proceedings must be started within sixty days, failing which the interim measure would cease to operate. Section 9(3) would provide that once the Arbitral Tribunal is constituted, the court should ordinarily not entertain an application under Section 9 unless circumstances exist whereby the remedy under Section 17 is not efficacious., The 2015 Amendment Act introduced Sub‑sections (2) and (3) to Section 9, stating that where a court passes an order for any interim measure of protection before the commencement of arbitral proceedings, the arbitral proceedings shall be commenced within ninety days, and that once the arbitral tribunal is constituted, the court shall not entertain an application under Sub‑section (1) unless it finds that circumstances exist which may render the remedy under Section 17 ineffective., In essence, the provisions of the Singapore International Arbitration Centre Rules and other institutional rules are reflected in Sections 9(2) and 9(3) of the Arbitration and Conciliation Act with respect to interim orders passed by courts. The introduction of these sub‑sections aims to decongest the courts and to enable the arbitral tribunal, once constituted, to grant interim relief in a timely and efficacious manner., The Law Commission further recommended amending Section 17 to insert a new sub‑clause (e) after sub‑clause (d) to allow the Arbitral Tribunal to grant any other interim measure of protection it deems just and convenient, and to give the tribunal the same power for making orders as the court has for proceedings before it. It also proposed that, subject to any orders passed in appeal under Section 37, any order issued by the tribunal under Section 17 be deemed an order of the court for all purposes and enforceable under the Code of Civil Procedure, 1908., The 2015 Amendment Act subsequently amended Section 17 so that Section 17(1) mirrors Section 9(1), giving the arbitral tribunal the same power as a court to provide interim relief, and added Section 17(2) to provide for enforceability of such orders as if they were court orders., An Emergency Arbitrator’s award, i.e., order, aligns with the objectives of decongesting the court system and providing parties with urgent interim relief. Party autonomy is respected by the Act, and there is no prohibition against appointing an Emergency Arbitrator. Consequently, an Emergency Arbitrator’s order, which is akin to an order of a properly constituted arbitral tribunal, falls within the institutional rules agreed by the parties and is covered by Section 17(1) when read with the other provisions of the Act., A party cannot, after participating in an Emergency Award proceeding under the agreed institutional rules, claim that it will not be bound by the Emergency Arbitrator’s ruling. Having agreed to paragraph 12 of Schedule 1 to the Singapore International Arbitration Centre Rules, a party cannot ignore the Emergency Arbitrator’s award by asserting it is a nullity, because the parties expressly agreed to the binding nature of such award from the date it is made and undertook to carry out the interim order immediately., Mr. Viswanathan argued that an Emergency Arbitrator under the Singapore International Arbitration Centre Rules is not an independent judicial body like an arbitral tribunal constituted under the Rules, relying on Rules 3, 9 and 10. The Supreme Court of India rejects this argument: Rule 3 merely allows the President to appoint an Emergency Arbitrator if the Centre determines that the application for emergency interim relief should be accepted. Once appointed, the Emergency Arbitrator is vested with all the powers of an arbitral tribunal under Rule 7 and decides independently of any other administrative authority. Rule 9 merely sets the timeframe for making an interim order or award, which may be extended by the Registrar, and Rule 10 does not interfere with the independence of the Emergency Arbitrator’s decision., Mr. Viswanathan also relied on Section 28 of the Contract Act, Justice R.S. Bachawat’s Law of Arbitration and Conciliation (Sixth Ed., LexisNexis), and the Chancery Division judgment in In Re Franklin and Swathling’s Arbitration [1929] 1 Ch. 238, to argue that arbitration is an ouster of civil courts’ jurisdiction and that only expressly provided ouster provisions can be followed. The Supreme Court of India holds that the Arbitration and Conciliation Act, 1996 represents a complete break from the past and is not an ouster statute; rather, it favours arbitration to de‑clog civil courts. Section 5 of the Act overrides other laws and provides that in matters governed by Part I, no judicial authority shall intervene except as provided in that Part, thereby turning the principle of ouster on its head., Even otherwise, as correctly pointed out by Mr. Subramanium, no order bears a stamp of invalidity that automatically requires it to be set aside in regular court proceedings. The Supreme Court of India has held, for example in Krishnadevi Malchand Kamathia v. Bombay Environmental Action Group, (2011) 3 Supreme Court of India 363, and Anita International v. Tungabadra Sugar Works Mazdoor Sangh, (2016) 9 Supreme Court of India 44, that an order, even if later set aside for lack of jurisdiction, must be obeyed for the period of its subsistence. In Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P) Ltd., (1997) 3 Supreme Court of India 443, the Court emphasized that parties cannot simply disregard an order they consider void; instead, they must approach the court to seek vacatur. Section 9‑A of the Code of Civil Procedure, 1908, inserted by the Maharashtra Amendment Act No. 65 of 1977, provides that any objection to a court’s jurisdiction raised at the hearing of an application for interim relief must be decided as a preliminary issue before the court can grant or set aside the interim relief, but the court may still grant necessary interim relief pending determination of that issue.
id_1268	3	At the same time, it should also decide the objection to jurisdiction at the earliest possible moment. This is the general principle and this is what Section 9-A reiterates. Take this very case. The plaintiff asked for temporary injunction. An ad interim injunction was granted. Then the defendants came forward objecting to the grant of injunction and also raising an objection to the jurisdiction of the Civil Court. The Civil Court overruled the objection as to jurisdiction and made the interim injunction absolute. The defendants filed an appeal against the decision on the question of jurisdiction. While that appeal was pending, several other interim orders were passed both by the Civil Court as well as by the High Court. Ultimately, no doubt, the High Court has found that the Civil Court had no jurisdiction to entertain the suit but all this took about six years. Can it be said that orders passed by the Civil Court and the High Court during this period of six years were all non est and that it is open to the defendants to flout them merrily, without fear of any consequence. Admittedly, this could not be done until the High Court's decision on the question of jurisdiction. The question is whether the said decision of the High Court means that no person can be punished for flouting or disobeying the interim/interlocutory orders while they were in force, i.e., for violations and disobedience committed prior to the decision of the High Court on the question of jurisdiction. Holding that by virtue of the said decision of the High Court (on the question of jurisdiction), no one can be punished thereafter for disobedience or violation of the interim orders committed prior to the said decision of the High Court, would indeed be subversive of the Rule of Law and would seriously erode the dignity and the authority of the courts. We must repeat that this is not even a case where a suit was filed in the wrong court knowingly or only with a view to snatch an interim order. As pointed out hereinabove, the suit was filed in the Civil Court bona fide. We are of the opinion that in such a case the defendants cannot escape the consequences of their disobedience and violation of the interim injunction committed by them prior to the High Court's decision on the question of jurisdiction., The learned counsel for Defendants 1 and 2 submitted that this is not a proceeding for contempt but a proceeding under Rule 2-A of Order 39 of the Code of Civil Procedure. The learned counsel submitted that proceedings under Order 39 Rule 2-A are a part of the coercive process to secure obedience to its injunction and that once it is found that the Civil Court has no jurisdiction, question of securing obedience to its orders any further does not arise. The learned counsel also submitted that enforcing the interim order after it is found that the Civil Court had no jurisdiction to try the said suit would not only be unjust and illegal but would also reflect adversely upon the dignity and authority of the Civil Court. It is also suggested that the plaintiff had instituted the present suit in the Civil Court knowing fully well that it had no jurisdiction to try it. It is not possible to agree with any of these submissions not only on principle but also in the light of the specific provision contained in Section 9-A of the Code of Civil Procedure (Maharashtra Amendment). In the light of the said provision, it would not be right to say that the Civil Court had no jurisdiction to pass interim orders or interim injunction, as the case may be, pending decision on the question of jurisdiction. The orders made were within the jurisdiction of the Civil Court and once this is so, they have to be obeyed and implemented. It is not as if the defendants are being sought to be punished for violations committed after the decision of the High Court on the question of jurisdiction of the Civil Court. Here the defendants are sought to be punished for the disobedience and violation of the order of injunction committed before the decision of the High Court in Vishanji Virji Mepani (All India Reporter 1996 Bombay 366). According to Section 9-A, the Civil Court and the High Court did have the power to pass interim orders until that decision. If they had that power, they must also have the power to enforce them. In the light of the said provision, it cannot also be held that those orders could be enforced only till the said decision but not thereafter. The said decision does not render them (the interim orders passed meanwhile) either non est or without jurisdiction. Punishing the defendants for violation of the said orders committed before the said decision (Vishanji Virji Mepani (All India Reporter 1996 Bombay 366)) does not amount, in any event, to enforcing them after the said decision. Only the orders are being passed now. The violations are those committed before the said decision., However, the learned counsel for the Respondents referred to and relied upon the classic passage in Kiran Singh v. Chaman Paswan (1955) 1 Supreme Court Cases 117 (at page 122) and various other judgments following it to contend that in cases of inherent lack of jurisdiction, it would be open to a party to ignore an award by an Emergency Arbitrator. They also referred to the judgment in Central Inland Revenue v. Pearl Mechanical Engineering & Foundry Works (P) Ltd., (2004) 4 Supreme Court Cases 597, where this Court spoke of the jurisdiction of a court or tribunal by stating that such jurisdiction only subsists when a court or tribunal exercises such jurisdiction from the law. It is a power which nobody on whom the law is not conferred can exercise. None of these judgments are applicable in the fact situation of the present case. On the contrary, we have pointed out that no party, after agreeing to be governed by institutional rules, can participate in a proceeding before an Emergency Arbitrator and, after losing, turn around and say that the award is a nullity or coram non judice when there is nothing in the Arbitration Act which interdicts an Emergency Arbitrator's order from being made. As has been pointed out, Section 17, as construed in the light of the other provisions of the Act, clearly leads to the position that such emergency award is made under the provisions of Section 17(1) and can be enforced under the provisions of Section 17(2)., We, therefore, answer the first question by declaring that full party autonomy is given by the Arbitration Act to have a dispute decided in accordance with institutional rules which can include Emergency Arbitrators delivering interim orders, described as awards. Such orders are an important step in aid of decongesting the civil courts and affording expeditious interim relief to the parties. Such orders are referable to and are made under Section 17(1) of the Arbitration Act., We now come to the question as to the maintainability of the appeal that has been filed under Order XLIII, Rule 1(r). Order XLIII, Rule 1(r) reads as under: ORDER XLIII Appeals from Orders 1. Appeals from orders. An appeal shall lie from the following orders under the provisions of Section 104, namely: (r) an order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10., In order to answer this question, it is important to advert to Sections 9, 17, and 37 of the Arbitration Act. Section 9(1) reads as follows: 9. Interim measures, etc. by Court. (1) A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with Section 36, apply to a Civil Court: (i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely: (a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the Civil Court to be just and convenient, and the Civil Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it., After the 2015 Amendment Act, Section 17(1), which, as has been stated hereinabove, is now a mirror image of Section 9(1), reads as follows: 17. Interim measures ordered by arbitral tribunal. (1) A party may, during the arbitral proceedings, apply to the arbitral tribunal (i) for the appointment of a guardian for a minor or person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely (a) the preservation, interim custody or sale of any goods which are the subject matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken, or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the arbitral tribunal to be just and convenient, and the arbitral tribunal shall have the same power for making orders, as the Civil Court has for the purpose of, and in relation to, any proceedings before it., Section 17(2), which was also introduced by the same Amendment Act, reads: 17. Interim measures ordered by arbitral tribunal. (2) Subject to any orders passed in an appeal under section 37, any order issued by the arbitral tribunal under this section shall be deemed to be an order of the Civil Court for all purposes and shall be enforceable under the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were an order of the Civil Court., Section 37, within the four corners of which appeals against orders are to be made under the Arbitration Act, reads as follows: 37. Appealable orders. (1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the High Court authorised by law to hear appeals from original decrees of the Civil Court passing the order, namely: (a) refusing to refer the parties to arbitration under Section 8; (b) granting or refusing to grant any measure under Section 9; (c) setting aside or refusing to set aside an arbitral award under Section 34. (2) An appeal shall also lie to a High Court from an order of the arbitral tribunal (a) accepting the plea referred to in sub-section (2) or sub-section (3) of Section 16; or (b) granting or refusing to grant an interim measure under Section 17. (3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court of India., As has been pointed out hereinabove, the Law Commission recommended an amendment to Section 17 to provide the arbitral tribunal the same powers as a court would have under Section 9., Section 9(1), after setting out in clauses (i) and (ii) what interim measures or protection could be granted, then goes on to add, and the Civil Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it., The italicised words arose for interpretation in Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 Supreme Court Cases 125. In paragraph 11 of the judgment, this Court held: 11. It is true that Section 9 of the Act speaks of the court by way of an interim measure passing an order for protection, for the preservation, interim custody or sale of any goods, which are the subject-matter of the arbitration agreement and such interim measure of protection as may appear to the court to be just and convenient. The grant of an interim prohibitory injunction or an interim mandatory injunction are governed by well-known rules and it is difficult to imagine that the legislature while enacting Section 9 of the Act intended to make a provision which was dehors the accepted principles that governed the grant of an interim injunction. Same is the position regarding the appointment of a receiver since the section itself brings in the concept of just and convenient while speaking of passing any interim measure of protection. The concluding words of the section, and the court shall have the same power for making orders as it has for the purpose and in relation to any proceedings before it also suggest that the normal rules that govern the court in the grant of interim orders is not sought to be jettisoned by the provision. Moreover, when a party is given a right to approach an ordinary court of the country without providing a special procedure or a special set of rules in that behalf, the ordinary rules followed by that court would govern the exercise of power conferred by the Act. On that basis also, it is not possible to keep out the concept of balance of convenience, prima facie case, irreparable injury and the concept of just and convenient while passing interim measures under Section 9 of the Act., Quite apart from the above, the language of the last part of Section 9(1) clearly refers to Section 94 of the Code of Civil Procedure read with Order XXXIX thereof. Section 94 of the Code of Civil Procedure reads as follows: 94. Supplemental proceedings. In order to prevent the ends of justice from being defeated the Civil Court may, if it is so prescribed, (a) issue a warrant to arrest the defendant and bring him before the Civil Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison; (b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Civil Court or order the attachment of any property; (c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold; (d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property; (e) make such other interlocutory orders as may appear to the Civil Court to be just and convenient., Order XXXIX, Rules 1, 2, and 2-A read as follows: Temporary injunctions 1. Cases in which temporary injunction may be granted. Where in any suit it is proved by affidavit or otherwise (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Civil Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Civil Court thinks fit, until the disposal of the suit or until further orders. 2. Injunction to restrain repetition or continuance of breach. (1) In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the Civil Court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any breach of contract or injury of a like kind arising out of the same contract or relating to the same property or right. (2) The Civil Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Civil Court thinks fit. 2-A. Consequence of disobedience or breach of injunction. (1) In the case of disobedience of any injunction granted or other order made under Rule 1 or Rule 2 or breach of any of the terms on which the injunction was granted or the order made, the Civil Court granting the injunction or making the order, or any Civil Court to which the suit or proceeding is transferred, may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding three months, unless in the meantime the Civil Court directs his release. (2) No attachment made under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Civil Court may award such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto., Prior to the Code of Civil Procedure (Amendment) Act, 1976, disobedience of an injunction or breach of any of its terms was enforced under sub-rules (3) and (4) of Order XXXIX, Rule 2 as follows: 2. Injunction to restrain repetition or continuance of breach. (3) In case of disobedience, or of breach of any such terms, the Civil Court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in the civil prison for a term not exceeding six months, unless in the meantime the Civil Court directs his release. (4) No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the Civil Court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto., A controversy arose as to whether sub-rules (3) and (4) to Rule 2 applied to breach of injunctions that were granted under Rule 1 of Order XXXIX. This controversy was set at rest by omitting sub-rules (3) and (4) from Order XXXIX, Rule 2 and introducing a new Rule 2-A to Order XXXIX. The Statement of Objects and Reasons for this provision read as follows: Clause 89 Sub-rule (iii) New Rule 2-A is being inserted to provide for the consequences of a breach of an injunction issued under Rule 1 which is, at present, not covered. The amendment is intended to seek the application of the provisions for breach, which are, at present, available under an injunction granted under Rule 2, to the said class of cases as well. There is a controversy as to whether under the existing provision, a Civil Court to which a suit is transferred can punish disobedience of an injunction issued by the predecessor court. New Rule 2-A provides that the transferee court can also exercise that power. (See Gazette of India, 8th April 1974, Part II, Section 2. Extra page 335)., A reading of Order XXXIX, Rule 2(3) and 2(4) as it originally stood, and Order XXXIX, Rule 2-A as it stands after the 1976 Amendment Act is to prescribe under Section 94 of the Code of Civil Procedure as to what is the consequence when a temporary injunction order and/or an order appointing a receiver of property is flouted. The consequences are mentioned in Sections 94(c) and (d) itself and fleshed out by Order XXXIX as aforesaid., Mr. Nankani cited the judgment of Food Corporation of India v. Sukh Deo Prasad, (2009) 5 Supreme Court Cases 665, in which he relied upon the following observations of this Court: 38. The power exercised by a Civil Court under Order 39 Rule 2-A of the Code is punitive in nature, akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. The person who complains of disobedience or breach has to clearly make out beyond any doubt that there was an injunction or order directing the person against whom the application is made, to do or desist from doing some specific thing or act and that there was disobedience or breach of such order. While considering an application under Order 39 Rule 2-A, the Civil Court cannot construe the order in regard to which disobedience/breach is alleged, as creating an obligation to do something which is not mentioned in the order, on surmises, suspicions and inferences. The power under Rule 2-A should be exercised with great caution and responsibility. He also relied upon the judgment of U.C. Surendranath v. Mambally's Bakery, (2019) 20 Supreme Court Cases 666, and paragraph 7 in particular, which states: 7. For finding a person guilty of wilful disobedience of the order under Order 39 Rule 2-A CPC there has to be not mere disobedience but it should be a wilful disobedience. The allegation of wilful disobedience being in the nature of criminal liability, the same has to be proved to the satisfaction of the Civil Court that the disobedience was not mere disobedience but a wilful disobedience., As pointed out earlier, during the second visit of the Commissioner to the appellant's shop, tea cakes and masala cakes were being sold without any wrappers/labels. The only thing which the Commissioner has noted is that nonremoval of the hoarding displayed in front of the appellant's shop for which the appellant has offered an explanation which, in our considered view, is acceptable., It is one thing to say that the power exercised by a Civil Court under Order XXXIX, Rule 2-A is punitive in nature and akin to the power to punish for civil contempt under the Contempt of Courts Act, 1971. It is quite another thing to say that Order XXXIX, Rule 2-A requires not mere disobedience but wilful disobedience. We are prima facie of the view that the latter judgment in adding the word wilful into Order XXXIX, Rule 2-A is not quite correct and may require to be reviewed by a larger Bench. Suffice it to say that there is a vast difference between enforcement of orders passed under Order XXXIX, Rules 1 and 2 and orders made in contempt of court. Orders which are in contempt of court are made primarily to punish the offender by imposing a fine or a jail sentence or both. On the other hand, Order XXXIX, Rule 2-A is primarily intended to enforce orders passed under Order XXXIX, Rules 1 and 2, and for that purpose, civil courts are given vast powers which include the power to attach property, apart from passing orders of imprisonment, which are punitive in nature. Orders passed under Section 17(2) of the Arbitration Act, using the power contained in Order XXXIX, Rule 2-A are, therefore, properly referable only to the Arbitration Act. When an order for permanent injunction is to be enforced, Order XXI, Rule 32 provides for attachment and/or detention in a civil prison. Orders that are passed under Order XXI, Rule 32 are primarily intended to enforce injunction decrees by methods similar to those contained in Order XXXIX, Rule 2-A. This also shows the object of Order XXXIX, Rule 2-A is primarily to enforce orders of interim injunction., It is well settled that the expression in relation to, which occurs in both Section 9(1) and Section 17(1), is an expression which is comprehensive in nature, having both a direct as well as an indirect significance. Thus, in Bandekar Brothers Pvt. Ltd. v. Prasad Vassudev Keni, 2020 Supreme Court Cases OnLine SC 707 the Supreme Court of India held: 20. The words in relation to have been the subject matter of judicial discussion in many judgments. Suffice it to say that for the present, two such judgments need to be noticed. In State Wakf Board, Madras v. Abdul Azeez Sahib, All India Reporter 1968 Madras 79, the expression relating to contained in Section 57(1) of the Wakf Act, 1954 fell for consideration before the Madras High Court. The Madras High Court held: 8. We have no doubt whatever that the learned Judge, (Kailasam, J.), was correct in his view that even the second suit has to be interpreted as within the scope of the words employed in S. 57(1) namely, In every suit or proceeding relating to title to Wakf property. There is ample judicial authority for the view that such words as relating to or in relation to are words of comprehensiveness which might both have a direct significance as well as an indirect significance, depending on the context. They are not words of restrictive content and ought not be so construed. The matter has come up for judicial determination in more than one instance. The case in Compagnie Financiec Dae Pacifique v. Peruvian Guano Co, is of great interest, on this particular aspect and the judgment of Brett, L.J., expounds the interpretation of O. 31, R. 12 of the Rules of the Supreme Court, 1875, in the context of the phrase material to any matter in question in the action. Brett, L.J., observed that this could both be direct as well as indirect in consequences and according to the learned Judge the test was this (at page 63): a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry, which may have either of these consequences. 21. Likewise, in Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale, (1995) 2 Supreme Court Cases 665, the expression Suits and proceedings between a licensor and licensee relating to the recovery of possession under Section 41(1) of the Presidency Small Cause Courts Act, 1882 came up for consideration before the Supreme Court of India. The Court held: 14. The words relating to are of wide import and can take in their sweep any suit in which the grievance is made that the defendant is threatening to illegally recover possession from the plaintiff-licensee. Suits for protecting such possession of immovable property against the alleged illegal attempts on the part of the defendant to forcibly recover such possession from the plaintiff, can clearly get covered by the wide sweep of the words relating to recovery of possession as employed by Section 41(1)., As a matter of fact, the judgment of the Supreme Court of India in Thyssen Stahlunion GmbH v. Steel Authority of India Ltd., (1999) 9 Supreme Court Cases 334, set out Section 85 of the Arbitration Act in paragraph 2 as follows: 2. This Section 85 of the new Act we reproduce at the outset: 85. Repeal and savings. (1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
id_1268	4	Notwithstanding such repeal, the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before the Arbitration and Conciliation Act came into force unless otherwise agreed by the parties but the Arbitration and Conciliation Act shall apply in relation to arbitral proceedings which commenced on or after the Arbitration and Conciliation Act comes into force; all rules made and notifications published under the said enactments shall, to the extent to which they are not repugnant to the Arbitration and Conciliation Act, be deemed respectively to have been made or issued under the Arbitration and Conciliation Act. The expression \in relation to\ appears in Section 85(2)(a). The question which arose before the Supreme Court of India, and which was answered by the Supreme Court of India, was whether enforcement proceedings would be included within the ambit of Section 85(2)(a). Holding that they did, the Supreme Court of India opined: 32. We are, therefore, of the opinion that it would be the provisions of the old Act that would apply to the enforcement of the award in the case of Civil Appeal No. 6036 of 1998. Any other construction on Section 85(2)(a) would only lead to confusion and hardship., This construction put by us is consistent with the wording of Section 85(2)(a) using the terms provision and \in relation to\ arbitral proceedings which would mean that once the arbitral proceedings commenced under the old Act it would be the old Act which would apply for enforcing the award as well. This passage was referred to by the Supreme Court of India in BCCI v. Kochi Cricket (P) Ltd., (2018) 6 Supreme Court of India Cases 287, in paragraph 69, as follows: 69. However, Shri Viswanathan strongly relied upon the observations made in para 32 in Thyssen [Thyssen Stahlunion GmbH v. SAIL, (1999) 9 Supreme Court of India Cases 334] and the judgment in Hameed Joharan v. Abdul Salam [Hameed Joharan v. Abdul Salam, (2001) 7 Supreme Court of India Cases 573]. It is no doubt true that para 32 in Thyssen [Thyssen Stahlunion GmbH v. SAIL, (1999) 9 Supreme Court of India Cases 334] does, at first blush, support Shri Viswanathan's stand., However, this was stated in the context of the machinery for enforcement under Section 17 of the 1940 Act which, as we have seen, differs from Section 36 of the 1996 Act, because of the expression \in relation to\ arbitral proceedings, which took in the entire gamut, starting from the arbitral proceedings before the Arbitral Tribunal and ending up with enforcement of the award. It was also in the context of the structure of the 1940 Act being completely different from the structure of the 1996 Act, which repealed the 1940 Act. Finally, however, the Supreme Court of India held that Section 36, as amended by the 2015 Amendment Act, should apply to Section 34 applications filed even before the commencement of the 2015 Amendment Act., Coupled with this, the expression any proceedings, occurring in Section 9(1) and Section 17(1), would also be an expression comprehensive enough to take in enforcement proceedings. The expression any has been construed by some of the judgments of the Supreme Court of India. Thus, in Shri Balaganesan Metals v. M.N. Shanmugham Chetty, (1987) 2 Supreme Court of India Cases 707, in context of Section 10(3)(c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, the Supreme Court of India held as follows: 18. In construing Section 10(3)(c) it is pertinent to note that the words used are any tenant and not a tenant who can be called upon to vacate the portion in his occupation. The word any has the following meaning: some; one of many; an indefinite number. One indiscriminately or whatever kind or quantity. 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. It is often synonymous with either, every or all. Its generality may be restricted by the context; (Black's Law Dictionary, 5th Ed.), 19. Unless the legislature had intended that both classes of tenants can be asked to vacate by the Rent Controller for providing the landlord additional accommodation, be it for residential or non‑residential purposes, it would not have used the word any instead of using the letter a to denote a tenant. Similarly, in Lucknow Development Authority v. M.K. Gupta, (1994) 1 Supreme Court of India Cases 243, the Supreme Court of India, while construing the word service under the Consumer Protection Act, 1986, held as follows: 4. What is the meaning of the word service? Does it extend to deficiency in the building of a house or flat? Can a complaint be filed under the Act against the statutory authority or a builder or contractor for any deficiency in respect of such property? The answer to all this shall depend on understanding of the word service. The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide. How it should be understood and what it means depends on the context in which it has been used in an enactment., Clause (o) of the definition section defines it as under: service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; it is in three parts. The main part is followed by an inclusive clause and ends by an exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words any and potential are significant. Both are of wide amplitude. The word any dictionarily 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 a wider sense extending from one to all., In Union of India v. A.B. Shah, (1996) 8 Supreme Court of India Cases 540, the Supreme Court of India, while examining the purport of the expression at any time contained in one of the conditions set by the Director General of Coal Mines in exercise of his powers under the Coal Mines Regulations, 1957 read with the Mines Act, 1952, held as follows: 12. 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 the 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, a 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 Edition, 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 the Supreme Court of India in Lucknow Development Authority v. M.K. Gupta [(1994) 1 Supreme Court of India Cases 243] gave a very wide meaning to this word finding place in Section 2(o) of the Consumer Protection Act, 1986 defining service. (See para 4), Properly so read, the expressions \in relation to\ and any proceedings would include the power to enforce orders that are made under Section 9(1), and are not limited to incidental powers to make interim orders, as was suggested by Mr. Viswanathan. Thus, if an order under Section 9(1) is flouted by any party, proceedings for enforcement of the same are available to the court making such orders under Section 9(1). These powers are, therefore, traceable directly to Section 9(1) of the Arbitration and Conciliation Act, which then takes us to the Code of Civil Procedure. Thus, an order made under Order XXXIX Rule 2‑A, in enforcement of an order made under Section 9, would also be referable to Section 9(1) of the Arbitration and Conciliation Act., Given the fact that the 2015 Amendment Act has provided in Section 17(1) the same powers to an arbitral tribunal as are given to a court, it would be anomalous to hold that if an interim order was passed by the tribunal and then enforced by the court with reference to Order XXXIX Rule 2‑A of the Code of Civil Procedure, such order would not be referable to Section 17. Section 17(2) was necessitated because the earlier law on enforcement of an arbitral tribunal's interim orders was found to be too cumbersome. Thus, in Alka Chandewar v. Shamshul Ishrar Khan, (2017) 16 Supreme Court of India Cases 119, the Supreme Court of India referred to the earlier position as follows: 8. Coming to Shri Rana Mukherjee's submission that subsection (2) of Section 17 introduced by the 2015 Amendment Act now provides for the necessary remedy against infraction of interim orders by the Tribunal, suffice it to state that the Law Commission itself, in its 246th Report, found the need to go one step further than what was provided in Section 27(5) as construed by the Delhi High Court [Sri Krishan v. Anand, 2009 Supreme Court of India Online Delhi 2472 : (2009) 112 Delhi Reporter (Judicial) 657 : (2009) 3 Arbitration Law Reports 447]., The Commission, in its Report, had this to say: Powers of Tribunal to order interim measures 46. Under Section 17, the Arbitral Tribunal has the power to order interim measures of protection, unless the parties have excluded such power by agreement. Section 17 is an important provision, which is crucial to the working of the arbitration system, since it ensures that even for the purposes of interim measures, the parties can approach the Arbitral Tribunal rather than await orders from a court. The efficacy of Section 17 is however seriously compromised given the lack of any suitable statutory mechanism for the enforcement of such interim orders of the Arbitral Tribunal. 47. In Sundaram Finance Ltd. v. NEPC India Ltd., (1999) 2 Supreme Court of India Cases 479, the Supreme Court of India observed that though Section 17 gives the Arbitral Tribunal the power to pass orders, the same cannot be enforced as orders of a court and it is for this reason only that Section 9 gives the court power to pass interim orders during the arbitration proceedings. Subsequently, in Army Welfare Housing Organisation v. Sumangal Services (P) Ltd., (2004) 9 Supreme Court of India Cases 619, the Supreme Court of India held that under Section 17 of the Act no power is conferred on the Arbitral Tribunal to enforce its order nor does it provide for judicial enforcement thereof., In the face of such categorical judicial opinion, the Delhi High Court attempted to find a suitable legislative basis for enforcing the orders of the Arbitral Tribunal under Section 17 in Sri Krishan v. Anand, 2009 Supreme Court of India Online Delhi 2472 : (2009) 112 Delhi Reporter (Judicial) 657 : (2009) 3 Arbitration Law Reports 447 [followed in Indiabulls Financial Services Ltd. v. Jubilee Plots & Housing (P) Ltd., 2009 Supreme Court of India Online Delhi 2458]. The Delhi High Court held that any person failing to comply with the order of the Arbitral Tribunal under Section 17 would be deemed to be making any other default or guilty of any contempt to the Arbitral Tribunal during the conduct of the proceedings under Section 27(5) of the Act. The remedy of the aggrieved party would then be to apply to the Arbitral Tribunal for making a representation to the court to mete out appropriate punishment. Once such a representation is received by the court from the Arbitral Tribunal, the court would be competent to deal with such party in default as if it is in contempt of an order of the court i.e., either under the provisions of the Contempt of Courts Act or under the provisions of Order 39 Rule 2‑A of the Code of Civil Procedure, 1908., The Commission believes that while it is important to provide teeth to the interim orders of the Arbitral Tribunal as well as to provide for their enforcement, the judgment of the Delhi High Court in Sri Krishan v. Anand, 2009 Supreme Court of India Online Delhi 2472 : (2009) 112 Delhi Reporter (Judicial) 657 : (2009) 3 Arbitration Law Reports 447 is not a complete solution. The Commission has, therefore, recommended amendments to Section 17 of the Arbitration and Conciliation Act which would give teeth to the orders of the Arbitral Tribunal and the same would be statutorily enforceable in the same manner as the orders of a court. In this respect, the views of the Commission are consistent with (though do not go as far as) the 2006 amendments to Article 17 of the United Nations Commission on International Trade Law Model Law. (emphasis in original) 9. Pursuant to this 246th Report, sub‑section (2) to Section 17 was added by the 2015 Amendment Act, so that the cumbersome procedure of an Arbitral Tribunal having to apply every time to the High Court for contempt of its orders would no longer be necessary. Such orders would now be deemed to be orders of the court for all purposes and would be enforced under the Code of Civil Procedure, 1908 in the same manner as if they were orders of the court. Thus, we do not find Shri Rana Mukherjee's submission to be of any substance in view of the fact that Section 17(2) was enacted for the purpose of providing a complete solution to the problem., It was to remedy this situation that Section 17(2) was introduced. There is no doubt that the Arbitral Tribunal cannot itself enforce its orders, which can only be done by a court with reference to the Code of Civil Procedure. But the court, when it acts under Section 17(2), acts in the same manner as it acts to enforce a court order made under Section 9(1). If this is so, then what is clear is that the Arbitral Tribunal's order gets enforced under Section 17(2) read with the Code of Civil Procedure., There is no doubt that Section 17(2) creates a legal fiction. This fiction is created only for the purpose of enforceability of interim orders made by the Arbitral Tribunal. To extend it to appeals being filed under the Code of Civil Procedure would be a big leap not envisaged by the legislature at all in enacting the said fiction. As a matter of fact, the Supreme Court of India, in Paramjeet Singh Patheja v. ICDS Ltd., (2006) 13 Supreme Court of India Cases 322, dealt with Section 36 of the Arbitration Act as it stood immediately before the 2015 Amendment Act (Section 36 as it then stood is the mirror image of Section 36(1) post amendment). In answering the question raised before it as to whether an arbitration award can be said to be a decree for the purpose of Section 9 of the Presidency Towns Insolvency Act, 1909, the Supreme Court of India held: 39. Section 15 of the Arbitration Act, 1899 provides for enforcing the award as if it were a decree. Thus, a final award, without actually being followed by a decree (as was later provided by Section 17 of the Arbitration Act of 1940), could be enforced i.e., executed in the same manner as a decree. For this limited purpose of enforcement, the provisions of the Code of Civil Procedure were made available for realising the money awarded. However, the award remained an award and did not become a decree either as defined in the Code of Civil Procedure and much less so far the purposes of an entirely different statute such as the Insolvency Act are concerned., 40. Section 36 of the Arbitration and Conciliation Act of 1996 brings back the same situation as it existed from 1899 to 1940. Only under the Arbitration Act, 1940, was the award required to be made a rule of court i.e., required a judgment followed by a decree of court. 41. Issuance of a notice under the Insolvency Act is fraught with serious consequences: it is intended to bring about a drastic change in the status of the person against whom a notice is issued viz. to declare him an insolvent with all the attendant disabilities. Therefore, firstly, such a notice was intended to be issued only after a regularly constituted court, a component of the judicial organ established for the dispensation of justice, has passed a decree or order for the payment of money. Secondly, a notice under the Insolvency Act is not a mode of enforcing a debt; enforcement is done by taking steps for execution available under the Code of Civil Procedure for realising monies. 42. The words as if demonstrate that award and decree or order are two different things. The legal fiction created is for the limited purpose of enforcement as a decree. The fiction is not intended to make it a decree for all purposes under all statutes, whether State or Central. (emphasis supplied), Mr. Viswanathan cited the judgment Rajasthan State Industrial Development & Investment Corporation v. Diamond & Gem Development Corporation Ltd., (2013) 5 Supreme Court of India Cases 470. Far from supporting his contention that the legal fiction contained in Section 17(2) extends to the filing of an appeal under the Code of Civil Procedure as enforcement proceedings are different from interim orders, paragraph 26 states as follows: VI. As if Meaning of 26. The expression as if is used to make one applicable in respect of the other. The words as if create a legal fiction. By it, when a person is deemed to be something, the only meaning possible is that, while in reality he is not that something, but for the purposes of the Act of legislature he is required to be treated that something, and not otherwise. It is a well‑settled rule of interpretation that, in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on the basis of which alone such fiction can operate. The words as if in fact show the distinction between two things and, such words must be used only for a limited purpose. They further show that a legal fiction must be limited to the purpose for which it was created., The celebrated judgment in East End Dwellings Co. Ltd. v. Finsbury Borough Council, 1952 AC 109 : (1951) 2 All England Law Reports 587 (House of Lords) then follows in paragraph 27, followed by another judgment of the Supreme Court of India in paragraph 28, as follows: 27. In East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952 AC 109 : (1951) 2 All England Law Reports 587 (House of Lords)] the Supreme Court of India approved the approach which stood adopted and followed persistently. It set out as under: (AC p. 133) The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs. 28. In Industrial Supplies (P) Ltd. v. Union of India [(1980) 4 Supreme Court of India Cases 341] the Supreme Court of India observed as follows: (SCC p.351, para 25) 25. It is now axiomatic that when a legal fiction is incorporated in a statute, the court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be carried to its logical conclusion. The court has to assume all the facts and consequences which are incidental or inevitable corollaries to giving effect to the fiction., The legal effect of the words as if he were in the definition of owner in Section 3(n) of the Nationalisation Act read with Section 2(1) of the Mines Act is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so., There can be no doubt that the legal fiction created under Section 17(2) for enforcement of interim orders is created only for the limited purpose of enforcement as a decree of the court. To extend this fiction to encompass appeals from such orders is to go beyond the clear intention of the legislature. Mr. Salve's argument in stressing the words under the Code of Civil Procedure in Section 17(2), thus holds no water as a limited fiction for the purpose of enforcement cannot be elevated to the level of a genie which has been released from a statutory provision and which would encompass matters never in the contemplation of the legislature., In a recent judgment of the Supreme Court of India in Union of India v. Vedanta Ltd., (2020) 10 Supreme Court of India Cases 1, the Supreme Court of India held that a petition to enforce a foreign award, made under Section 49 of the Arbitration Act, is governed by Article 137 of the Limitation Act, 1963 and not by Article 136 of the said Act. This conclusion was arrived at as follows: 69. Section 36 of the Arbitration Act, 1996 creates a statutory fiction for the limited purpose of enforcement of a domestic award as a decree of the court, even though it is otherwise an award in an arbitral proceeding [Umesh Goel v. H.P. Coop. Group Housing Society Ltd., (2016) 11 Supreme Court of India Cases 313 : (2016) 3 Supreme Court of India (Civil) 795]. By this deeming fiction, a domestic award is deemed to be a decree of the court [Sundaram Finance Ltd. v. Abdul Samad, (2018) 3 Supreme Court of India Cases 622 : (2018) 2 Supreme Court of India (Civil) 593], even though it is as such not a decree passed by a civil court. The Arbitral Tribunal cannot be considered to be a court, and the arbitral proceedings are not civil proceedings. The deeming fiction is restricted to treat the award as a decree of the court for the purposes of execution, even though it is, as a matter of fact, only an award in an arbitral proceeding. In Paramjeet Singh Patheja v. ICDS Ltd., (2006) 13 Supreme Court of India Cases 322, the Supreme Court of India in the context of a domestic award, held that the fiction is not intended to make an award a decree for all purposes, or under all statutes, whether State or Central. It is a legal fiction which must be limited to the purpose for which it was created. Paras 39 and 42 of the judgment in Paramjeet Singh Patheja v. ICDS Ltd., (2006) 13 Supreme Court of India Cases 322 read as: (SCC pp. 345-46) 39. Section 15 of the Arbitration Act, 1899 provides for enforcing the award as if it were a decree. Thus a final award, without actually being followed by a decree (as was later provided by Section 17 of the Arbitration Act of 1940), could be enforced i.e., executed in the same manner as a decree. For this limited purpose of enforcement, the provisions of the Code of Civil Procedure were made available for realising the money awarded. However, the award remained an award and did not become a decree either as defined in the Code of Civil Procedure and much less so far the purposes of an entirely different statute such as the Insolvency Act are concerned. 42. The words as if demonstrate that award and decree or order are two different things. The legal fiction created is for the limited purpose of enforcement as a decree. The fiction is not intended to make it a decree for all purposes under all statutes, whether State or Central., Foreign awards are not decrees of an Indian civil court. By a legal fiction, Section 49 provides that a foreign award, after it is granted recognition and enforcement under Section 48, would be deemed to be a decree of that court for the limited purpose of enforcement. The phrase \that court\ refers to the court which has adjudicated upon the petition filed under Sections 47 and 49 for enforcement of the foreign award. In our view, Article 136 of the Limitation Act would not be applicable for the enforcement/execution of a foreign award, since it is not a decree of a civil court in India., The enforcement of a foreign award as a deemed decree of the High Court concerned [as per the amended Explanation to Section 47 by Act 3 of 2016 confers exclusive jurisdiction on the High Court for execution of foreign awards] would be covered by the residuary provision i.e. Article 137 of the Limitation Act. A three‑Judge Bench of the Supreme Court of India in Kerala State Electricity Board v. T.P. Kunhaliumma, (1976) 4 Supreme Court of India Cases 634, held that the phrase any other application in Article 137 cannot be interpreted on the principle of ejusdem generis to be applications under the Code of Civil Procedure. The phrase any other application used in Article 137 would include petitions within the word applications, filed under any special enactment. This would be evident from the definition of application under Section 2(b) of the Limitation Act, which includes a petition. Article 137 stands in isolation from all other Articles in Part I of the Third Division of the Limitation Act, 1963. The application under Sections 47 and 49 for enforcement of the foreign award is a substantive petition filed under the Arbitration and Conciliation Act, 1996. It is a well‑settled position that the Arbitration and Conciliation Act is a self‑contained code. [Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 Supreme Court of India Cases 333 : (2011) 4 Supreme Court of India (Civil) 178; Kandla Export Corporation v. OCI Corporation, (2018) 14 Supreme Court of India Cases 715 : (2018) 4 Supreme Court of India (Civil) 664; Shivnath Rai Harnarain (India) Co. v. Glencore Grain Rotterdam, 2009 Supreme Court of India Online Delhi 3564 : (2009) 164 Delhi Law Times 197; Usha Drager (P) Ltd. v. Dragerwerk AG, 2009 Supreme Court of India Online Delhi 2975 : (2010) 170 Delhi Law Times 628; Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd., (2008) 4 Supreme Court of India Cases 91; Conros Steels (P) Ltd. v. Lu Qin (Hong Kong) Co. Ltd., 2014 Supreme Court of India Online Bombay 2305 : (2015) 1 Arbitration Law Reports 463 : (2015) 2 Bombay Civil Reporter 1] The application under Section 5 for condonation of delay, if required in the facts and circumstances of the case, may be filed.
id_1268	5	Salve then read the provisions of the New Zealand Arbitration Act, 1996, the Hong Kong Arbitration Ordinance (Cap. 209), the Singapore Arbitration Act, 2001 as well as the Singapore International Arbitration Act, 1994, and the English Arbitration Act, 1996 to argue that in all the aforesaid legislations, awards passed by an Emergency Arbitrator were expressly included with varying provisions as to their enforcement. A contrast of these legislations with the provisions of the Indian Arbitration Act, again, does not take us very far, given the fact that we have, on a proper interpretation of the said Act, held that an award or order by an Emergency Arbitrator would be covered by Section 17 of the Arbitration Act, when properly read with other provisions of the Act., Mr. Salve and Mr. Viswanathan then argued that Section 36(1), which is a pari materia provision with Section 17(2), must be contrasted with the provisions of Section 36(3). They argued that there is a basic difference between having due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure and enforcement of an award in accordance with the provisions of the Code of Civil Procedure. According to them, it is clear that the Supreme Court of India granting a stay under sub‑sections (2) and (3) of Section 36 does so under the Arbitration Act only having due regard to the provisions regarding grant of stay of a money decree under the Code of Civil Procedure. By way of contrast, an award is enforced in accordance with the provisions of the Code of Civil Procedure and not under the Arbitration Act. It was also argued that Section 17(2) and Section 36(1) are instances of legislation by reference and not legislation by incorporation., The interpretation of Section 36 is not before us; the interpretation of Section 17 read with Section 9 is. As far as Section 17 is concerned, as has been pointed out by us hereinabove, the scheme qua interim orders passed by an arbitral tribunal mirrors the scheme qua interim orders passed by civil courts under Section 9. This vital difference between the provisions of Section 17 read with Section 9 and as contrasted with Section 36 puts paid to this argument., We will now deal with some of the judgments of the Supreme Court of India cited by the learned counsel for the Respondents. They strongly relied upon the judgment of the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd., 2009 SCC OnLine Del 511 : (2009) 159 Delhi Law Times 579 for the proposition that enforcement applications under Section 36 of the Arbitration Act are independent of arbitral proceedings which culminate in an award. The Delhi High Court held that since execution applications would be governed by Sections 38 and 39 of the Code of Civil Procedure, Section 42 of the Arbitration Act cannot be held to apply and, as a result, the courts mentioned in Sections 38 and 39 of the Code of Civil Procedure would have jurisdiction to execute arbitral awards., In Sundaram Finance Ltd. v. Abdul Samad, (2018) 3 SCC 622, this Court, in paragraph 18, referred to Daelim Industrial Co. (supra) with approval. The question which arose before this Court was posed thus: the divergence of legal opinion of different High Courts on the question as to whether an award under the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the said Act) is required to be first filed in the court having jurisdiction over the arbitration proceedings for execution and then to obtain transfer of the decree or whether the award can be straightaway filed and executed in the Court where the assets are located is required to be settled in the present appeal. A Division Bench of this Court, after setting out the relevant provisions of the Code of Civil Procedure and the Arbitration Act, then held: the aforesaid provision would show that an award is to be enforced in accordance with the provisions of the Code of Civil Procedure in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the Arbitral Tribunal which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the Code of Civil Procedure. The judgment ultimately turned on Section 32 of the Arbitration Act, which made it clear that after arbitral proceedings had been terminated, Section 42 of the Act would not apply. This being so, the question posed before the Court was answered thus: we are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the court which would have jurisdiction over the arbitral proceedings. This judgment does not, in any manner, take the matter any further as it does not advert to Section 17 of the Act at all and is on a completely different point as to whether execution of an award can only be in the first court which is approached under Section 42 of the Act or can be a proceeding which can be filed and pursued in any court., The learned counsel for the Respondents then relied upon the Full Bench judgment of the Bombay High Court in Gemini Bay Transcription Pvt. Ltd. v. Integrated Sales Service Ltd., 2018 SCC OnLine Bom 216 : AIR 2018 Bom 89 (Full Bench) which dealt with the same question and decided that Section 42 of the Act would not apply to enforcement applications under the Act, which have to follow the drill of Sections 38 and 39 of the Code of Civil Procedure. The learned counsel for Amazon, however, strongly relied upon judgments of the Bombay High Court in Jet Airways (supra), Kakade Construction (supra), and Global Asia Venture Co. v. Arup Parimal Deb, 2018 SCC OnLine Bom 13061. Since these judgments deal with enforcement proceedings filed under Section 36 of the Arbitration Act, we do not express any opinion on their correctness., Mr. Salve then relied upon Punjab State Civil Supplies Corporation Ltd. v. Atwal Rice & General Mills, (2017) 8 SCC 116. This judgment dealt with objections to the enforcement of an arbitral award in execution. In the course of dealing with the aforesaid objections, the Supreme Court of India observed: in other words, the arbitral award has been given the status of a decree of the civil court and, therefore, it is enforced like a decree of the civil court by applying the provisions of Order 21 of the Code of Civil Procedure and all other provisions which deal with the execution of the decree of the civil court. This judgment again does not take the matter very much further. It does not deal with Section 17 of the Act at all but deals with Section 36 which, as has been pointed out by us, contains a scheme different from that contained for enforcement of interim orders under Section 17., We now come to the appeal provision in the Arbitration Act. There can be no doubt that Section 37 is a complete code so far as appeals from orders and awards made under the Arbitration Act are concerned. This has further been strengthened by the addition of the non obstante clause by the Arbitration and Conciliation (Amendment) Act, 2019., This Court, in Kandla Export Corporation v. OCI Corporation, (2018) 14 SCC 715 held in the context of a Section 50 appeal as follows: given the judgment of this Court in Fuerst Day Lawson (Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., (2011) 8 SCC 333 : (2011) 4 SCC (Civil) 178), which Parliament is presumed to know when it enacted the Arbitration Amendment Act, 2015, and given the fact that no change was made in Section 50 of the Arbitration Act when the Commercial Courts Act was brought into force, it is clear that Section 50 is a provision contained in a self‑contained code on matters pertaining to arbitration, and which is exhaustive in nature. It carries the negative import mentioned in paragraph 89 of Fuerst Day Lawson that appeals which are not mentioned therein are not permissible. This being the case, it is clear that Section 13(1) of the Commercial Courts Act, being a general provision vis‑à‑vis arbitration relating to appeals arising out of commercial disputes, would obviously not apply to cases covered by Section 50 of the Arbitration Act. However, the question still arises as to why Section 37 of the Arbitration Act was expressly included in the proviso to Section 13(1) of the Commercial Courts Act, which is equally a special provision of appeal contained in a self‑contained code, which in any case would be outside Section 13(1) of the Commercial Courts Act. One answer is that this was done ex abundanti cautela. Another answer may be that as Section 37 itself was amended by the Arbitration Amendment Act, 2015, which came into force on the same day as the Commercial Courts Act, Parliament thought, in its wisdom, that it was necessary to emphasise that the amended Section 37 would have precedence over the general provision contained in Section 13(1) of the Commercial Courts Act. Incidentally, the amendment of 2015 introduced one more category into the category of appealable orders in the Arbitration Act, namely, a category where an order is made under Section 8 refusing to refer parties to arbitration. Parliament may have found it necessary to emphasise the fact that an order referring parties to arbitration under Section 8 is not appealable under Section 37(1)(a) and would, therefore, not be appealable under Section 13(1) of the Commercial Courts Act. Whatever may be the ultimate reason for including Section 37 of the Arbitration Act in the proviso to Section 13(1), the ratio decidendi of the judgment in Fuerst Day Lawson would apply, and this being so, appeals filed under Section 50 of the Arbitration Act would have to follow the drill of Section 50 alone. This, in fact, follows from the language of Section 50 itself. In all arbitration cases of enforcement of foreign awards, it is Section 50 alone that provides an appeal. Having provided for an appeal, the forum of appeal is left to the Court authorised by law to hear appeals from such orders. Section 50 properly read would, therefore, mean that if an appeal lies under the said provision, then alone would Section 13(1) of the Commercial Courts Act be attracted as laying down the forum which will hear and decide such an appeal. In fact, in Sumitomo Corporation v. CDC Financial Services (Mauritius) Ltd., (2008) 4 SCC 91, this Court adverted to Section 50 of the Arbitration Act and to Sections 10(1)(a) and 10‑F of the Companies Act, 1956, to hold that once an appeal is provided for in Section 50, the Court authorised by law to hear such appeals would then be found in Sections 10(1)(a) and 10‑F of the Companies Act. The present case is a parallel instance of Section 50 of the Arbitration Act providing for an appeal, and Section 13(1) of the Commercial Courts Act providing the forum for such appeal. Only, in the present case, as no appeal lies under Section 50 of the Arbitration Act, no forum can be provided for. What is important to note is that it is Section 50 that provides for an appeal, and not the letters patent, given the subject‑matter of appeal. Also, the appeal has to be adjudicated within the parameters of Section 50 alone. Concomitantly, where Section 50 excludes an appeal, no such appeal will lie. This judgment is, therefore, an authority for the proposition that the Arbitration Act is a self‑contained code on matters pertaining to arbitration, which is exhaustive in nature. The appeal provision in that case (Section 50) was held to carry a negative import that only such matters as are mentioned in the Section are permissible, and matters not mentioned therein cannot be brought in. It was further held that what follows from this is that the substantive provision of appeal is contained in Section 50 of the Act, which alone must be read, Section 13(1) of the Commercial Courts Act, 2015 being a general provision, which must give way to the specific provision contained in Section 50., Likewise, in Deep Industries Ltd. v. ONGC, (2020) 15 SCC 706, this Court opined: given the aforesaid statutory provision and given the fact that the 1996 Act repealed three previous enactments in order that there be speedy disposal of all matters covered by it, it is clear that the statutory policy of the Act is that not only are time limits set down for disposal of the arbitral proceedings themselves but time limits have also been set down for Section 34 references to be decided. Equally, in Union of India v. Varindera Constructions Ltd., (2020) 2 SCC 111 : (2020) 1 SCC (Civil) 277, dated 17‑9‑2018, disposing of SLP (C) No. 23155 of 2013, this Court has imposed the same limitation on first appeals under Section 37 so that there be a timely resolution of all matters which are covered by arbitration awards. Most significant of all is the non obstante clause contained in Section 5 which states that notwithstanding anything contained in any other law, in matters that arise under Part I of the Arbitration Act, no judicial authority shall intervene except where so provided in this Part. Section 37 grants a constricted right of first appeal against certain judgments and orders and no others. Further, the statutory mandate also provides for one bite at the cherry, and interdicts a second appeal being filed (see Section 37(2) of the Act). The Court dealt with the maintainability of an appeal under Section 37 of the Act in a case in which an application under Section 34 of the Act was ordered to be transferred from a court which had no jurisdiction to a court which had jurisdiction. In deciding this question, this Court referred copiously to Kandla Export (supra) in paragraph 12. It then went on to decide: given the fact that there is no independent right of appeal under Section 13(1) of the Commercial Courts Act, 2015, which merely provides the forum of filing appeals, it is the parameters of Section 37 of the Arbitration Act, 1996 alone which have to be looked at in order to determine whether the present appeals were maintainable. Section 37(1) makes it clear that appeals shall only lie from the orders set out in sub‑clauses (a), (b) and (c) and from no others. The pigeonhole that the High Court in the impugned judgment (NHPC Ltd. v. Jaiprakash Associates Ltd., 2018 SCC OnLine P&H 1304 : (2019) 193 AIC 839) has chosen to say that the appeals in the present cases were maintainable is sub‑clause (c). According to the High Court, even where a Section 34 application is ordered to be returned to the appropriate court, such order would amount to an order refusing to set aside an arbitral award under Section 34. Interestingly, under the proviso to Section 13(1‑A) of the Commercial Courts Act, 2015, Order 43 of the Code of Civil Procedure is also mentioned. Order 43 Rule 1(a) reads as follows: 1. Appeals from orders. An appeal shall lie from the following orders under the provisions of Section 104, namely (a) an order under Rule 10 of Order 7 returning a plaint to be presented to the proper court except where the procedure specified in Rule 10‑A of Order 7 has been followed; This provision is conspicuous by its absence in Section 37 of the Arbitration Act, 1996, which alone can be looked at for the purpose of filing appeals against orders setting aside, or refusing to set aside awards under Section 34. Also, what is missed by the impugned judgment (NHPC Ltd. v. Jaiprakash Associates Ltd., 2018 SCC OnLine P&H 1304 : (2019) 193 AIC 839) is the words under Section 34. Thus, the refusal to set aside an arbitral award must be under Section 34 i.e. after the grounds set out in Section 34 have been applied to the arbitral award in question, and after the Court has turned down such grounds. Admittedly, on the facts of these cases, there was no adjudication under Section 34 of the Arbitration Act, 1996; all that was done was that the Special Commercial Court at Gurugram allowed an application filed under Section 151 read with Order 7 Rule 10 of the Code of Civil Procedure, determining that the Special Commercial Court at Gurugram had no jurisdiction to proceed further with the Section 34 application, and therefore, such application would have to be returned to the competent court situated at New Delhi. This judgment is determinative of the issue before us as it specifically ruled out appeals under Order 43 Rule 1 of the Code of Civil Procedure when it comes to orders being made under the Arbitration Act., At this juncture, it is important to notice that Section 37 did not remain untouched by the 2015 Amendment Act. As a matter of fact, a new category of appeals was infused into the provision by adding a new sub‑section (1)(a), which reads as follows: 37. Appealable orders. (1) Notwithstanding anything contained in any other law for the time being in force, an appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the Court passing the order, namely: (a) refusing to refer the parties to arbitration under Section 8., Despite Section 17 being amended by the same Amendment Act, by making Section 17(1) the mirror image of Section 9(1) as to the interim measures that can be made, and by adding Section 17(2) as a consequence thereof, significantly, no change was made in Section 37(2)(b) to bring it in line with Order 43 Rule 1(r). The section continued to provide appeals only from an order granting or refusing to grant any interim measure under Section 17. There can be no doubt that granting or refusing to grant any interim measure under Section 17 would only refer to the grant or non‑grant of interim measures under Section 17(1)(i) and 17(1)(ii). In fact, the opening words of Section 17(2), namely, subject to any orders passed in appeal under Section 37 also demonstrate the legislature’s understanding that orders that are passed in an appeal under Section 37 are relatable only to Section 17(1). For example, an appeal against an order refusing an injunction may be allowed, in which case subsection (2) of Section 17 then kicks in to enforce the order passed in appeal. Also, the legislature made no amendment to the granting or refusing to grant any measure under Section 9 to bring it in line with Order 43 Rule 1(r), under Section 37(1)(b). What is clear from this is that enforcement proceedings are not covered by the appeal provision., However, learned counsel appearing on behalf of the Respondents pressed into service a recent judgment of the Supreme Court of India in Chintels (India) Ltd. v. Bhayana Builders (P) Ltd., (2021) 4 SCC 602. The precise question that arose before this Court was as to when an application seeking condonation of delay in filing an appeal is dismissed, whether this would amount to refusal to set aside an arbitral award under Section 34 and thus be appealable under Section 37(1)(c) of the Act. In answering this question, this Court referred to Section 37(1) of the Act and stressed the fact that an application for setting aside an award must be in accordance with sub‑sections (2) and (3) of Section 34. The Court then set out Section 34(3) and opined: a reading of Section 34(1) would make it clear that an application made to set aside an award has to be in accordance with both sub‑sections (2) and (3). This would mean that such application would not only have to be within the limitation period prescribed by sub‑section (3), but would then have to set out grounds under sub‑sections (2) and/or (2‑A) for setting aside such award. What follows from this is that the application itself must be within time, and if not within a period of three months, must be accompanied with an application for condonation of delay, provided it is within a further period of 30 days, this Court having made it clear that Section 5 of the Limitation Act, 1963 does not apply and that any delay beyond 120 days cannot be condoned (see State of H.P. v. Himachal Techno Engineers, (2010) 12 SCC 210 : (2010) 4 SCC (Civil) 605 at paragraph 5). Coming to Section 37(1)(c), the Court then held: we now come to Section 37(1)(c). It is important to note that the expression “setting aside or refusing to set aside an arbitral award” does not stand by itself. The expression has to be read with the expression that follows under Section 34. Section 34 is not limited to grounds being made out under Section 34(2). Obviously, therefore, a literal reading of the provision would show that a refusal to set aside an arbitral award as delay has not been condoned under sub‑section (3) of Section 34 would certainly fall within Section 37(1)(c). The aforesaid reasoning is strengthened by the fact that under Section 37(2)(a), an appeal lies when a plea referred to in sub‑section (2) or (3) of Section 16 is accepted. This would show that the legislature, when it wished to refer to part of a section, as opposed to the entire section, did so. Contrasted with the language of Section 37(1)(c), where the expression under Section 34 refers to the entire section and not to Section 34(2) only, the fact that an arbitral award can be refused to be set aside for refusal to condone delay under Section 34(3) gets further strengthened. Unlike the language of Section 34, a literal reading of Section 17 would show that the grant or non‑grant of interim measures under Section 37(2)(b) refers only to Section 17(1) of the Act. Also, in the context of Section 37(2)(b), the entirety of Section 17 was referred to when Sections 17 and 37 were first enacted in 1996. It is only by the 2015 Amendment Act that Section 17 was bifurcated into two sub‑sections. What is significant in this context is that no corresponding amendment was made to Section 37(2)(b) to include within its scope the amended Section 17, as has been pointed out hereinabove. This judgment is also distinguishable and, therefore, does not carry the Respondents’ argument any further., The second question posed is thus answered declaring that no appeal lies under Section 37 of the Arbitration Act against an order of enforcement of an Emergency Arbitrator’s order made under Section 17(2) of the Act. As a result, all interim orders of the Supreme Court of India stand vacated. The impugned judgments of the Division Bench, dated 8 February 2021 and 22 March 2021, are set aside. The appeals are disposed of accordingly.
id_1269	0	No. K-11019/37/2023-USNII (ii) Government of India Ministry of Law and Justice Department of Justice (Appointments Division) Jaisalmer House, 26, Man Singh Road, New Delhi-110 011. Dated: 09th November, 2023., In exercise of the power conferred by Article 223 of the Constitution of India, the President is pleased to appoint Shri Justice Lanusungkum Jamir, Judge of the Gauhati High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from the date Shri Justice Sandeep Mehta relinquishes the charge as Chief Justice of the Gauhati High Court consequent upon his appointment as a Judge of the Supreme Court of India., Rajinder Kashyap, Special Secretary to the Government of India, Telephone: 2338 3037, to the Manager, Government of India Press, Minto Road, New Delhi., Copy to: Shri Justice Lanusungkum Jamir, Judge of the Gauhati High Court through the Registrar General, Gauhati High Court, Guwahati; The Secretary to the Governor, Assam, Dispur; The Secretary to the Governor, Arunachal Pradesh, Itanagar; The Secretary to the Governor, Mizoram, Aizawl; The Secretary to the Governor, Nagaland, Kohima; The Secretary to the Chief Minister, Assam, Dispur; The Secretary to the Chief Minister, Arunachal Pradesh, Itanagar; The Secretary to the Chief Minister, Mizoram, Aizawl; The Secretary to the Chief Minister, Nagaland, Kohima; The Secretary to the Chief Justice, Gauhati High Court, Guwahati; The Chief Secretary, Government of Assam, Dispur; The Chief Secretary, Government of Arunachal Pradesh, Itanagar; The Chief Secretary to Government, Mizoram, Aizawl; The Chief Secretary to Government, Nagaland, Kohima; The Registrar General, Gauhati High Court, Guwahati; The Accountant General, Assam, Dispur; The President's Secretariat, Chief Administrative Section, Rashtrapati Bhavan, New Delhi; Principal Secretary to the Prime Minister, Prime Minister's Office, South Block, New Delhi; Registrar (Confidential), Office of the Chief Justice of India, 7 Krishna Menon Marg, New Delhi; Technical Director, Ministry of Communication, Department of Justice, with a request to upload on the website of the Department.
id_1270	0	Smt. Nalini Mishra, wife of Surendra Patel, aged about 34 years, residing at House No. 50, Side of Asina Green City Apartment, Near Durga Temple, Clay Castle Colony, In front of Kamal Vihar Gate, Old Dhamtari Road, Dunda, Raipur, Chhattisgarh, is the appellant. She is opposed by Surendra Kumar Patel, son of Shri B. P. Patel, aged about 32 years, residing at Janpad Panchayat Kurud, Sub Engineer, District Dhamtari, Chhattisgarh, the respondent. For the appellant, Shri Shishir Shrivastava, Advocate, appears; for the respondent, Shri C. Jayant K. Rao, Advocate, appears. The judgment is delivered by Honourable Justice Goutam Bhaduri and Honourable Justice Radhakishan Agrawal., The instant appeal is against the judgment and decree dated 17 December 2019 passed in Husband's Motion Application 677/2017 by the learned Family Court, Raipur, whereby the application filed by the husband seeking divorce on the ground of cruelty was allowed. The present appeal is filed by the wife., The husband alleged that the marriage between the parties was solemnised on 31 October 2010 and a child was born from the wedlock. He claimed that the wife spent money as per her own choice, objected to and eventually stopped his visits to his parents, and abused him when he attempted to meet them. He further alleged that without his consent the wife went to a place called Belpahad for her coal‑shifting business at Mahanadi Coalfield, and when he tried to intervene she insulted him. The husband asserted that the wife took his entire salary for her business, procured five vehicles on loan without his consent, and deliberately neglected household responsibilities including caring for the child. He also claimed that the wife prevented him from attending his brother’s marriage and his maternal sister’s marriage, and falsely alleged an illicit relationship between the wife and the girl. Additionally, the husband alleged that the wife accused him of an illicit relationship with an office colleague, leading him to file police reports on several occasions., The wife contended that she never misbehaved with the husband and did not commit any cruelty. She stated that the marriage was entered into at the behest of the husband after an affair, and that the husband was aware that she was a widow. She claimed that, at the husband’s wish, she underwent surgery to conceive a child, which was subsequently born. She further alleged that after the birth of the child the husband’s behaviour became strange and he wanted to separate, and that the divorce application was filed on false allegations and grounds., The learned Family Court framed the issue on whether the husband was treated with cruelty by the wife. On behalf of the husband, two witnesses were examined: the husband himself as Plaintiff Witness 1 and the wife’s sister, Rohini Mishra, as Plaintiff Witness 2. On behalf of the wife, she examined herself as Defendant Witness 1 and one witness, Ananda Pathak, another sister. After evaluating the facts and evidence, the Family Court allowed the husband’s application and granted a decree of divorce. The wife, aggrieved by the judgment and decree, filed the present appeal., The appellant’s counsel submitted that the Family Court failed to appreciate that the wife was treated with cruelty by the husband and that the evidence adduced by the husband does not prove cruelty by the wife. He argued that the wife wanted to live with the husband and child, but the husband did not want to stay with her. He asserted that the wife is financially independent and that the husband’s allegation that the wife was interested in his money is false. He further contended that the statements of the parties do not establish cruelty and that the Family Court erred in holding that cruelty existed merely because one sister deposed against the wife. He maintained that the cruelty was meted out by the husband and that the husband attempted to create false evidence to obtain a divorce, warranting interference with the lower court’s finding., The respondent’s counsel countered that the various police reports filed in 2017 demonstrate the state of affairs between the parties. He alleged that the wife not only made character assaults against the husband by claiming an extramarital affair but also went to the husband’s office to create a scene and sent letters to the Chief Minister seeking the husband’s transfer. He further alleged that the wife accused the husband of an illicit relationship with his cousin sister when she came to appear for an examination, indicating the wife’s mental state. He maintained that the husband suffered both physical and mental cruelty, including physical assault, and that the cumulative evidence supports the Family Court’s finding, which does not require interference., The Court noted that, apart from physical cruelty, mental cruelty has been defined by the Supreme Court in Samar Ghosh versus Jaya Ghosh (2007) 4 Supreme Court Cases 511. The Court reproduced the illustrative instances of mental cruelty, including acute mental pain, inability to live together, persistent abusive and humiliating treatment, sustained unjustifiable conduct affecting physical and mental health, and other conduct amounting to cruelty beyond mere jealousy or trivial irritations., The husband, Surendra Kumar Patel, was examined as Plaintiff Witness 1. He stated that both parties met in 2009, fell in love and married on 31 October 2010. He alleged that after marriage the wife took his entire salary and spent money according to her own choice. He claimed that whenever he wanted to visit his parents, the wife objected and hurled severe abuses, resulting in a complete stoppage of his meetings with his parents. He further stated that the wife demanded additional money for her coal‑handling business, leading him to take a loan of five lakh rupees from friends to procure a vehicle for her business. He narrated an incident on 9 December 2016 where, while attempting to attend his brother’s marriage, he was severely abused over the phone, forced to leave the procession midway, and had to return home, with neighbours intervening to console him., The husband also narrated that his cousin sister, Shweta, came to Raipur to appear for a PSC exam, and the wife alleged an illicit relationship between them and abused them. He further claimed that the wife complained to his office that he had an illicit relationship with a lady colleague, and when he tried to console the matter, she threatened to implicate him in a criminal case. He alleged that, because of the torture meted out, his earlier husband died. Regarding an incident on 3 May 2018, he stated that after parking his car at the office and returning, he found the car door open and important papers, including an ATM card and Aadhaar card, stolen. CCTV footage identified the wife as the perpetrator, leading to her arrest under Section 379 of the Indian Penal Code, after which she was released. He asserted that the wife committed the theft to damage his reputation and cause him harm., The documents exhibited include Ex P‑1, a report made by the husband on 3 August 2017 to the Mahila Thana, in which the husband complained that the wife threatened to kill him, the child, and herself, and that she abused and assaulted him over trivial issues. Ex P‑2 is a police memo under Section 155 of the Criminal Procedure Code, showing that the wife attempted to assassinate the husband’s character and that several complaints were made by the husband, which the police classified as non‑cognizable offences and advised the respondent to approach the Court. Ex P‑3, dated 4 November 2017, similarly records the police’s view that the matter was non‑cognizable and that the wife had defamed the husband. Ex P‑4 is a report addressed to the Chief Minister, alleged to have been written by the wife; the wife denied signing it, but a comparison of signatures on the report, the deposition memo, and the affidavit indicated that the wife had indeed signed it. The report alleged that the husband was maintaining an illicit relationship with a lady named Nagma Fatima and requested his transfer., The Court referred to the Supreme Court decision in Narendra versus K. Meena, AIR 2016 SC 4599, which upheld that character assassination by either party constitutes mental cruelty sufficient to sustain a claim for divorce under Section 13(1)(i‑a) of the Hindu Marriage Act, 1955. The Court quoted the judgment that such allegations of unchastity and indecent familiarity amount to a grave assault on the wife’s honour and reputation, constituting cruelty in matrimonial law., The sister of the wife, Rohini Mishra, was examined as Plaintiff Witness 2. She testified in favour of the husband, describing Nalini as an angry and quarrelsome lady who had previously lived separately with her first husband, Paresh Vishwakarma, who later died. She recounted that Nalini lived with various partners and engaged in contractor work, and that she frequently abused the husband’s cousin sister and office staff, creating scenes at the husband’s office. She also stated that Nalini prevented the cousin sister from staying for an examination by alleging an illicit relationship, and that Nalini demanded money from the husband when her business suffered, resorting to abuse if refused. In cross‑examination, she reiterated that she had witnessed Nalini abusing her mother‑in‑law when called to her in‑laws’ place on 3 August 2017., The overall assessment of the evidence shows that the wife abused the husband on trivial issues, as documented in Ex P‑1, P‑2 and P‑3, although the police treated the matters as non‑cognizable. The husband’s complaints about abusive behaviour and physical assault, including scratches on his neck, are supported by the statements of Plaintiff Witness 1 and Plaintiff Witness 2 and by Ex P‑4. The wife’s allegations of an illicit relationship were unsubstantiated. The wife’s repeated visits to the husband’s office, creation of scenes, and obstruction of the husband’s contact with his parents constitute cruelty. The Court therefore finds no merit in interfering with the Family Court’s judgment., The Court is of the opinion that the judgment and decree passed by the learned Family Court do not require any interference and affirms the finding arrived at by the Family Court. Consequently, the appeal fails and is dismissed.
id_1271	0	Case No.: Public Interest Litigation (Suo Moto)/2/2019. Advocate for the Petitioner: Mister S S Dey, Senior Advocate. Advocate for the Respondent: Mister T C Chutia, (R-1 AND 5). Date: 10 February 2023. Heard Mister D. Nath, Senior Government Advocate for the State of Assam; Mister B.D. Goswami, Additional Advocate General for the State of Arunachal Pradesh; Mister A. Kalita, Additional Advocate General for the State of Mizoram; Ms. M. Kechii, Senior Government Advocate for the State of Nagaland; Mister M. Phukan, Public Prosecutor for the State of Assam; and Mister H.K. Das, standing counsel for the Gauhati High Court., Pursuant to our earlier order dated 7 February 2023, Mister Nitul Gogoi, Indian Police Service, Inspector General of Police (Administration), Assam; Mister D. Upadhaya, Indian Police Service, Inspector General of Police (CID), Assam; Mister Michi Paku, Indian Police Service, Inspector General of Police (Operation and Training), Arunachal Pradesh; Mister Thomas Zodingliona, Indian Police Service, Director General of Police (Eastern Range), Mizoram; and Mister Joseph Hesso, Indian Police Service, Inspector General of Police (Headquarters), Nagaland are personally present before the Gauhati High Court., For the purpose of separating investigation from the general duties of police personnel in the State of Assam, there is a judgment and order dated 31 January 2020 in Criminal Appeal (J) No. 111/2016, which requires the separation of the investigating wing from other police duties. Certain developments have taken place, and we take judicial notice of those developments as recorded in various orders in Criminal Appeal (J) No. 111/2016., Mister Nitul Gogoi, Indian Police Service, Inspector General of Police (Administration), Assam, stated that a tentative list of persons more suitable for investigation has been identified and preliminary training has been imparted at police training institutes and the Judicial Academy of Assam. However, a Cabinet decision is required to implement the separation of the investigating wing, and a draft Cabinet memorandum has already been placed before the Government., Mister D. Nath, Senior Government Advocate, seeks an adjournment to provide further update on the matter before the Cabinet. Upon deliberation, we observe that separating the investigating wing may not incur any additional financial implication, other than certain marginal costs, and creating the wing would be within the existing police force. On the next date, the State of Assam may respond with a specific roadmap and timeline for implementation of the separation., In respect of the State of Arunachal Pradesh, we note the judgment and order dated 23 August 2022 in Public Interest Litigation No. 09(AP)/2022 for separation of the investigating wing within the existing police force. The State of Arunachal Pradesh shall file an affidavit providing a detailed roadmap, timeline, steps taken to implement the separation, and the list of persons to be included in the investigating wing., In respect of the State of Mizoram, although the matter of separation of the investigating wing from the general police force has not been taken up in any judicial proceeding, the judgments for the States of Assam and Arunachal Pradesh are applicable to Mizoram, indicating a public interest requiring separation. Moreover, a judgment by the Honorable Supreme Court requires such separation, which is the law of the land., Mister Thomas Zodingliona, Indian Police Service, Director General of Police (Eastern Range), Mizoram, stated that the rate of conviction in Mizoram is very high. While encouraging, we feel that separating the investigating wing and conducting investigations more professionally could increase the conviction rate further. Accordingly, the State of Mizoram shall file an affidavit placing on record the roadmap, timeline, and immediate steps taken to implement the separation, including identification of police personnel suitable for investigation., The provisions indicated for the State of Mizoram shall also apply to the State of Nagaland. The State of Nagaland shall file an affidavit placing on record the roadmap, timeline, and immediate steps taken to implement the separation. We have been informed that the Assembly Election in the State of Nagaland will take place on 27 February 2023 and the results will be declared on 2 March 2023., In view of the above, the affidavits of the States of Assam, Arunachal Pradesh and Mizoram shall be filed before the next date, 28 February 2023. For the State of Nagaland, because of the ensuing Assembly Election, the affidavit shall be filed by 14 March 2023. The matter concerning the separation of the investigating wing for the States of Assam, Arunachal Pradesh and Mizoram shall be listed for further hearing on 28 February 2023, and for the State of Nagaland on 14 March 2023., Personal appearance of all the aforesaid police officials, except Mister Joseph Hesso, Indian Police Service, Inspector General of Police (Headquarters), Nagaland, shall continue on the next date., A copy of this order shall be furnished to Mister D. Nath, Senior Government Advocate for the State of Assam; Mister B.D. Goswami, Additional Advocate General for the State of Arunachal Pradesh; Mister A. Kalita, Additional Advocate General for the State of Mizoram; Ms. M. Kechii, Senior Government Advocate for the State of Nagaland; and Mister M. Phukan, Public Prosecutor for the State of Assam., The matter shall be listed again on 28 February 2023 and 14 March 2023 as part heard.
id_1272	0	Ghuge Nijal Navin Shah, Applicant; The State of Maharashtra and others, Respondents; Ms. Sonal Parab and wife Tanvi Sawant in behalf of Rajeev Sawant Associates for the applicant; Mr. D.P. Singh for respondent No.2; Mr. A.R. Patil, Additional Public Prosecutor for the State., The applicant, who is facing prosecution under Sections 406, 420, 120(b) read with Section 34 of the Indian Penal Code, 1860, had applied for renewal of the passport before the Metropolitan Magistrate Court, 31st Court, Vikhroli, Mumbai. By the impugned order, the Magistrate rejected the application holding that the investigation is not complete, one of the accused is absconding, and there are chances of tampering of evidence., Learned Advocate Mr. Yogesh Gandhi appears for respondent No.2 and a copy of the writ petition has been served on the advocate for the informant., Insofar as the prayer for renewal of passport is concerned, it is well settled that the rights of a person applying for renewal of passport are regulated by the provisions of the Passport Act. The Additional Sessions Judge had permitted the applicant to travel to the United States of America from 17 July 2017 to 11 August 2019. There is no allegation that the applicant breached the conditions imposed by the Metropolitan Magistrate Court while granting permission to travel abroad., In the facts of the case, merely because the offences under Sections 406, 420, 120(b) read with Section 34 of the Indian Penal Code are pending against the applicant, that fact by itself is not sufficient to deny the applicant's right to renewal of the passport. There is no material on record to show that the applicant carries a flight risk. The applicant has immovable property in Mumbai and the applicant's son is working in Melbourne, Australia. In view of the Division Bench of the Hon'ble High Court in the case of Narendra K. Ambawani Vs. Union of India (Writ Petition No. 361 of 2014), the application for renewal of passport needs to be granted., The Additional Sessions Judge, while passing the order of release of the applicant on pre‑arrest bail, imposed the condition that the applicant shall not travel abroad without permission of the Metropolitan Magistrate Court. Considering that condition, the apprehension expressed by the investigating agency is uncalled for, as such apprehension is taken care of by the conditions imposed in the pre‑arrest bail order., In that view of the matter, the impugned order passed by the Metropolitan Magistrate Court, Vikhroli, on Exhibit 1 in C.C. No. 261/N/2022 dated 8 September 2022 is quashed and set aside., The respondent No.2 is directed not to reject the renewal of the passport on the pendency of the offence against the applicant. However, respondent No.2 shall scrutinize the eligibility of the applicant as required under the provisions of the Passport Act and shall pass an order in accordance with law on the application for renewal of the applicant's passport., In spite of service of a copy of the petition on the advocate for the informant, none appears., The criminal application is disposed of in the above terms. No costs.
id_1273	0	Present: Mr. Satya Pal Jain, Additional Solicitor General of India, with Mr. Dheeraj Jain, Advocate, for respondent No.1 Union of India. Mr. Anil Mehta, Senior Standing Counsel, and Mr. Mayank Sharma, Junior Panel Counsel, Union Territory Chandigarh. Mr. Vinod Ghai, Advocate General, Punjab, with Mr. Gaurav Garg Dhuriwala, Additional Advocate General, Punjab, Mr. Aman Pal, Additional Advocate General, Punjab, for respondent No.5. Mr. Puneet Bali, Senior Advocate, with Mr. Vaibhav Jain, Advocate, Ms. Gauhar Mirza, Advocate, Mr. Sachin Jain, Advocate, and Mr. Yash Karunkaran, Advocate, for respondent No.9 Facebook. Mr. Anand Chhibbar, Senior Advocate, with Mr. Shikhar Sarin, Advocate, and Mr. Rohan Ahuja, Advocate, for respondent No.10 YouTube. Mr. Rohit Khanna, Advocate, and Mr. Saurabh Gautam, Advocate, and Mr. Saransh Jain, Advocate, and Ms. Simran Sharma, Advocate, for respondent No.11 Twitter., Affidavit on behalf of Union Territory Chandigarh has been filed., Mr. Satya Pal Jain, learned Senior Counsel appearing on behalf of respondent No.1 Union of India, submits that needful has been done and a compliance report has been received from the respondent. He further wishes to file a detailed affidavit and is allowed to do so., Statements of respondents No.6 to 8, namely Balwinder Singh Sekhon, Pardeep Sharma and Baljit Singh Marwaha, have been recorded separately, in pursuance of the charge raised against them by order dated 20 February 2023., Compliance report on behalf of respondent No.5, by way of affidavit of Mandeep Singh Sidhu, IPS, Commissioner of Police, Ludhiana, who is also present in the Supreme Court of India, has been filed and taken on record. Perusal of the aforesaid compliance report shows that respondents No.6 and 7 were arrested in pursuance of the directions issued by this Supreme Court of India by order dated 20 February 2023. However, there is an admission in paragraph 19 that during police custody, both the contemners gave media bytes to news channel and newspaper reporters in the Supreme Court of India premises at Ludhiana. It is also an admission that there is apparent lapse on the part of the police officials on duty and a departmental inquiry has been initiated against SHO Sarabha Nagar, Ludhiana and explanation has been sought from the ACP Crime‑1, Ludhiana and ACP West, Ludhiana regarding this aspect., Accordingly, we direct the State of Punjab to file a status report, in the form of a personal affidavit of the Director General of Police, Punjab, regarding the departmental proceedings being conducted against any such officials and that the same shall be finalized expeditiously. The status report shall also give an explanation as to how such offending videos, which have been constantly posted on social media platforms for the last six months containing derogatory remarks against constitutional institutions and against a Judge of the Supreme Court of India and the Judges of this Supreme Court of India, amount to an offence under various provisions of the Indian Penal Code, 1860, the Information Technology Act, 2000 and other special Acts or not. The affidavit will also explain why any such proceedings were not initiated against the persons who were constantly uploading/posting such videos and why there is dereliction of duties on their behalf in this regard. The State shall also give details whether under which other provisions it has the authority to detain people who indulge in such activities. The needful be done within a period of four weeks from today., As per the report prepared by the Registrar (Computerisation) of this Supreme Court of India, the offending material runs into 35 gigabytes of data and has a play time of 10 to 12 hours., Mr. Puneet Bali, Senior Counsel appearing on behalf of respondent No.9 Facebook, has stated that through its authorised company META, it has located the offending URLs/videos and deleted/blocked the same as per the list provided by the officers of this Supreme Court of India in pursuance of the directions given by this Supreme Court of India by order dated 20 February 2023. He further submitted that to delete such offending videos at all levels, the primary instrument which was used for uploading the material would be required so that the cleansing can be done at base level. Consequently, Mr. Bali submits that necessary direction will have to be issued in this context to the private respondents No.6 to 8., On request of counsel for respondent No.9, it is also clarified that with regard to any such offending material which is being identified and which is still available on the platforms, a request made subsequently by the Registrar (Computerisation) of this Supreme Court of India will result in appropriate action to ensure the earlier directions are complied with., Mr. Anand Chhibbar, learned Senior Counsel appearing on behalf of respondent No.10 YouTube, submits that the identity of the said respondent has undergone a change and he wishes to file an appropriate application to place on record the correct description of respondent No.10 who will be in a position to own up the responsibility for deletion of all the uploaded URLs/videos in compliance with the order dated 20 February 2023. Mr. Chhibbar, on instructions, further submits that active steps are being taken and have been taken to remove all the offending material as per the orders of this Supreme Court of India dated 20 February 2023 and appropriate screening of all the material pertaining to respondents No.6 and 7 is ongoing. He further submits that the said respondents shall diligently comply with the order of this Supreme Court of India and if any further offending material is found and conveyed to them, active steps will be taken to remove all such material., Mr. Rohit Khanna, learned counsel appearing on behalf of respondent No.11 Twitter, submits that all the offending URLs/videos were located and have been blocked. He also wishes to file an appropriate application showing the correct description of respondent No.11 Twitter., All three counsels on behalf of respondents No.9 to 11 raised the same grievance regarding the reliance placed upon Swami Ramdev and another versus Facebook Incorporated and others, 2019 (263), Delhi Law Times 689, in the order dated 20 February 2023., It is pointed out that the said matter is a subject matter of appeal before the Division Bench of the Delhi High Court itself and the only interim relief granted is that the contempt proceedings will not be pursued. They accordingly submit that whatsoever compliance has been done, as per the interim relief, should not be treated as a precedent. They submit that they will file a necessary affidavit highlighting whatsoever action has been taken, which is now being pointed out to this Supreme Court of India, before the next date of hearing., It also came to our notice that respondent No.6 had approximately 37,000 subscribers on his private channel allegedly called Balwinder Sekhon Speaks on YouTube. Respondents No.9 to 11 will file specific affidavits that, on account of a large subscriber base of such users, whether any financial benefits accrue to such persons who create such channel and upload videos and, on account of advertisement being posted on such a channel, whether he started earning revenue. Respondents No.9, 10 and 11, in their affidavits, shall also specify how much revenue or earnings, if any, were given to respondent No.6 Balwinder Singh Sekhon by way of monetisation and whether any revenue has been generated in the account of said person. The respondents shall also file affidavits as to whether they received any complaint regarding such uploading/postings by any set of persons including any State authorities who were aggrieved on the ground that such material, which was being posted, was per se offensive. If any such representation was received, whether any action was taken on the same. The respondents, in their affidavits, shall also give details of the redressal mechanism which has been put in place and how actively it has been responded to by the respondents on the complaints received from the citizens., While taking reference from Mr. Bali’s suggestions, mobile phones of respondent No.6 and 7, which were seized by the Punjab Police, will be scrutinised by the Punjab Police to identify all the offending material pertaining to Supreme Court of India proceedings., At this stage, Mr. Pardeep Sharma submits that whatever has happened was an emotional outburst. He was offered an opportunity but he declined to give any unconditional apology., The statements of all three private respondents No.6, 7 and 8 were recorded separately and apparently and unwittingly, they indicted each other. We feel that once we have invoked Article 215 of the Constitution of India read with the fact that the contempt was in the face of the Supreme Court of India under Section 14 of the Contempt of Courts Act, 1971, there is enough judicial precedent that evidence will not have to be led for delaying the matter and for quick dispensation of justice in such cases to ensure that the message goes home. Reliance can be placed upon the observation of a three‑Judge Bench of the Apex Court in the case of Leila David versus State of Maharashtra, 2009 (10) SCC 337, in which there was reference made on account of a divergent view taken earlier., Respondent No.8 Baljit Singh Marwaha has admitted that he conducted the interview on 15 February 2023 in his office studio at 6.30 pm, after hearing had been conducted by this Supreme Court of India on the same day. There is an admission that both respondent Nos.6 and 7 were being interviewed and the recording was done in his studio. His defence is that certain other persons were recording the interview separately who had accompanied respondents Nos.6 and 7. The video was never uploaded on the Scroll Punjab channel as there was an obligation to edit the same and scrutinise its contents and eventually, on account of the aforesaid fact, the same was never uploaded on their channel. It is further stated that uploading was done at an independent level by respondents Nos.6 and 7 without his permission and he only came to know about the same when he received summons from the Chief Judicial Magistrate, Ludhiana., Respondent No.6 Balwinder Singh Sekhon did not admit the contents of both the videos/transcripts and rather got personal with the Supreme Court of India when his plea of defence was being recorded and his conduct was derogatory in nature. On the other hand, respondent No.7 clearly admitted his presence in both the offending videos Annexure A & C and transcripts B and D. For some of the derogatory remarks, he shifted the onus to respondent No.6 Balwinder Singh Sekhon., In such circumstances, since we have ourselves seen the videos and the respondents are present in the Supreme Court of India and there is no dispute regarding the identity of the persons involved in the videos and the transcripts of the said videos are per se derogatory, malicious, libelous and against the constitutional authorities and this institution in principle., It is further not disputed that the said videos were featured on the platforms of respondents No.9 to 11, the intermediaries, and apparently, as noticed above, there were almost 37,000 subscribers and the viewers at this point are uncertain, which would be manifold., Thus mud‑slinging by way of open publication and representation of such malicious material being circulated not only at the national but international level amounts to inciting people at large against the Rule of Law and against one of the basic wings of the democratic set‑up under the Constitution of India consisting of the Legislature, Executive and the Judiciary. Thus, it gives us no reason to postpone the proceedings for requiring any trial., Thus, in view of the above, by invoking Article 215 of the Constitution of India, both respondent Nos.6 and 7, namely Balwinder Singh Sekhon and Pardeep Sharma, are held guilty of the charge issued against them by order dated 20 February 2023 for criminal contempt as defined under Section 2(c)(i) to (iii) of the Contempt of Courts Act, 1971, which is in the face of the Supreme Court of India under Section 14 of the 1971 Act and punishable under Section 12 of the 1971 Act., Keeping in view the fact that contempt was committed, for which respondents Nos.6 and 7 have no remorse, both contemners are convicted and sentenced for a period of six months simple imprisonment along with a fine of Rs 2,000 each. They shall undergo the aforesaid sentence at Model Jail, Burail, Union Territory Chandigarh., Mr. Anil Mehta, Senior Standing Counsel, Union Territory Chandigarh, is directed to ensure compliance of this order in this regard., At the time the sentence was announced, respondent No.6 Balwinder Singh Sekhon raised slogans ‘Judicial Gundayardi Murdabad’ in the open Supreme Court of India and further compounded the contempt and for that, we are not in a position to give a lesser sentence than has been awarded., Detailed order/judgment will follow which will be supplied to the contemners through the Superintendent, Model Jail, Burail, Union Territory Chandigarh for taking any redressal measures by them., The parties are to appear on 04 May 2023 for filing necessary affidavits, including that of respondent No.8., A copy of this order, duly attested by the Special Secretary attached with this Supreme Court of India, be supplied to both the convicted persons, Advocate General, Punjab and Senior Standing Counsel for Union Territory Chandigarh for compliance.
id_1275	0	Appellant Ram Pratap alias Tillu has preferred the present appeal against the judgment and order dated 21 March 2020 and 21 May 2020 passed by the 8th Additional Sessions Judge, Etawah, whereby the Sessions Court convicted the appellant under Section 302 of the Indian Penal Code and awarded death sentence with a fine of Rs 5 lakh and, in default, two years rigorous imprisonment., Six members of a family – Suresh Chandra (deceased No. 1), Vimla Devi (deceased No. 2), Avnish (deceased No. 3), Rashmi (deceased No. 4), Surabhi (deceased No. 5) and Shweta (deceased No. 6) – were brutally murdered. Suresh Chandra and Vimla Devi were husband and wife; Avnish, Rashmi, Surabhi and Shweta were their children., The FIR was lodged by Hom Singh (Prosecution Witness 1) on 28 May 2012 at about 7.45 am. According to the FIR, Vimla Devi, sister of the informant, was married to Suresh Chandra Yadav. The appellant, Ram Pratap alias Tillu, is the brother of Suresh Chandra Yadav. Both brothers lived separately and their properties had been divided. The appellant was described as a criminal‑minded person who had disposed of his entire property and was pressurising his brother Suresh Chandra and Vimla Devi for additional property and money., The FIR records that Suresh Chandra conveyed these circumstances to the informant and his brother Suresh (Prosecution Witness 2). Both witnesses went to the village Pilkhar to pacify the appellant, but the appellant continued to pressurise Suresh Chandra for money. On 15 June 2012 the marriage of Avnish, nephew of the informant, was to take place. Because of these reasons, the appellant was annoyed with Suresh Chandra and kept an evil eye on his property. It is alleged that, with that motive, on the night of 27–28 May 2012 the appellant, aided by his associates, murdered Suresh Chandra, Vimla Devi, Avnish, Rashmi, Surabhi and Shweta, thereby eliminating the entire family of Suresh Chandra., The case was registered at Police Station Ikdil, District Etawah as Case Crime No. 261 of 2012 under Section 302 of the Indian Penal Code. After registration, on 28 May 2012 the Investigating Officer recovered blood‑stained and plain soil, blood‑stained pieces of clothing, a gold earring and prepared a recovery memo (Exhibit Ka‑8). On the same day he also recovered a piece of bread, laddoo, kachauri, three empty quarter bottles of wine, and a bowl containing dal and potato vegetables, for which a recovery memo (Exhibit Ka‑9) was prepared. Subsequently, from the appellant’s house a blood‑stained lock and a blood‑stained towel were recovered, recorded in Exhibit Ka‑10. On 29 May 2012, blood‑stained pieces of bedsheet, cots and plain and blood‑stained bricks were recovered, recorded in Exhibit Ka‑48. During the investigation, inquest reports and autopsies of the bodies were conducted., The autopsy reports (Exhibits Ka‑42 to Ka‑47) revealed ante‑mortem incised wounds on each victim causing shock and haemorrhage as the cause of death. For example, Vimla Devi sustained a 14 cm × 8 cm through‑and‑through incised wound on the right side and back of the neck, cutting the C3 and C4 vertebrae, spinal cord and major blood vessels. Similar deep incised wounds involving the trachea, oesophagus, cervical vertebrae and major vessels were found on Avnish, Surabhi, Suresh Chandra, Shweta and Rashmi, each resulting in shock and haemorrhage., On 19 November 2021 the appellant was arrested and, at his instance, an axe was recovered. The Investigating Officer prepared a recovery memo for the axe (Exhibit Ka‑2)., After investigation, a charge sheet was submitted against the appellant and co‑accused Varun Raj. The case was committed to the Court of Session and, on 12 April 2013, charges under Section 302 read with Section 34 of the Indian Penal Code were framed against the appellant and Varun Raj. Both the appellant and Varun Raj denied the charges and claimed trial., During trial, the prosecution examined the following witnesses: Hom Singh (PW‑1), Suresh (PW‑2), Malkhan Singh (PW‑3), Shiv Raj Singh (PW‑4), Ashok Chandra Dubey (PW‑5), Vinod Kumar Pandey (PW‑6), Devendra Kumar Dwivedi (PW‑7), Sudhakar Singh (PW‑8), Sanjay Dubey (PW‑9), Manish Jaat (PW‑10) and Padamkant Dubey (PW‑11). Nahne Ram was examined as Court Witness‑1 (CW‑1). Among the prosecution witnesses, PW‑1, PW‑2, PW‑3 and PW‑4 are witnesses of fact; the remaining are formal witnesses. CW‑1, the Tehsildar, is a court witness., After recording the statements of the prosecution witnesses, the trial court recorded the appellant’s statements under Section 313 of the Criminal Procedure Code on 14 October 2019, 26 October 2019 and 29 November 2019. On 21 November 2019 the public prosecutor filed a certified copy of the Forensic Science Laboratory report dated 5 March 2013. On 25 November 2019 the defence counsel endorsed ‘no objection’ to the application filed by the public prosecutor and the FSL report was taken on record. A third statement of the appellant under Section 313 was recorded on 29 November 2019, followed by the examination of CW‑1. A fourth statement was recorded on 20 January 2020., On 16 December 2019 a certified copy of the FSL report dated 29 August 2013 was filed. After perusing the entire evidence, the trial court convicted the appellant under Section 302 of the Indian Penal Code and awarded death penalty. Co‑accused Varun Raj was acquitted. The trial court held that the case fell in the category of the rarest of rare cases and therefore awarded death penalty to the appellant., We have heard Sri Yadu Nandan Yadav, learned counsel for the appellant; Sri S. D. Yadav, Advocate holding brief for Sri Ram Naresh Singh, learned counsel for the informant; and Sri Amit Sinha, learned Additional Government Advocate for the State, and have perused the record., Counsel for the appellant submitted that the trial court committed a grave error in convicting the appellant as there is no admissible evidence. He argued that there is no eye‑witness account of the incident and that the prosecution case is based solely on circumstantial evidence, which the prosecution has failed to prove satisfactorily. The chain of circumstances could not be established., Counsel further submitted that the trial court heavily relied on motive and the appellant’s subsequent abscondence as incriminating circumstances, which by themselves cannot form the basis of conviction. He contended that the motive of inheriting property after eliminating his brother’s family is misconceived because, upon conviction for murder, no one can succeed to the estate of the deceased., Counsel also argued that the recovery of the blood‑stained lock and towel is doubtful because one of the independent witnesses to the recovery, Ashok Kumar, was not examined by the prosecution. He maintained that, even if the towel is accepted, there is no serological report linking the blood on the towel to any of the deceased, and no blood‑group report of the deceased is on record. Hence, the presence of blood on the towel is of no consequence., Counsel further submitted that the incriminating circumstances of the appellant’s abscondence and the recovery of the blood‑stained towel and lock were not put to the appellant while recording his statement under Section 313 of the Criminal Procedure Code, causing prejudice; therefore, those circumstances should be eschewed and the appellant is entitled to acquittal., In the alternative, counsel submitted that the facts and nature of the evidence do not warrant a death penalty., The Additional Government Advocate and the informant’s counsel submitted that the prosecution has successfully proved the guilt of the appellant beyond reasonable doubt and that the trial court rightly convicted the appellant., The Additional Government Advocate submitted that the appellant is the real brother of Suresh Chandra Yadav and, immediately after the crime, he absconded and was arrested only after six months. His conduct shows guilt. He further stated that the appellant eliminated the entire family of his brother to grab the property, which subsequently came to the appellant. The appellant executed a Power of Attorney in favour of his wife Manju to enable transfer of the property to his daughter Diksha, who later disposed of the entire property for Rs 5 crore, thereby proving motive., The Additional Government Advocate also submitted that the appellant offered no explanation for the blood‑stained towel recovered from his house, that the recovery was not challenged during cross‑examination, and that the serological report was not challenged. He noted that the defence counsel endorsed ‘no objection’ to the application through which the FSL report was filed. He argued that, as six persons including small children were brutally murdered, the trial court rightly awarded death penalty., Having noted the rival submissions and perused the entire record, we briefly notice the deposition of the prosecution witnesses., PW‑1, Hom Singh, the informant, stated that his sister Vimla Devi was married to Suresh Chandra. The appellant is the sole brother of Suresh Chandra. Their properties had already been divided. The appellant disposed of his entire property and was eyeing his brother’s property, pressurising and threatening them for money. He recounted that he and PW‑2 went to village Pilkhar to settle the matter, but the appellant continued to harass them. He said that the marriage of his nephew Avinash was fixed for 15 June 2015, and that on 27 May 2012 the appellant and co‑accused threatened to eliminate the entire family. He assured his brother‑in‑law that he would come in the morning, but later learned that the entire family had been killed. He produced a written report as Exhibit Ka‑1 and stated that the appellant’s associates also threatened him., In cross‑examination, PW‑1 said he had participated in a panchayat to settle the property dispute and that the mobile phone on which he received the call from Suresh Chandra was lost, so he could not provide its number. He denied the suggestion that the deceased did not call him., PW‑2, Suresh, brother of Hom Singh, reiterated that Vimla Devi was married to Suresh Chandra and that the appellant lived separately, with the property divided between the brothers. He described the appellant as a criminal type who, having disposed of his property, was pressurising his brother and sister‑in‑law for money. He stated that on the night of 27–28 May 2012, the appellant, along with Varun and Dileep, killed Suresh Chandra, Vimla Devi, Avnish, Rashmi, Shweta and Surabhi. In cross‑examination he admitted that the appellant had a separate residence in the village where Suresh Chandra lived., PW‑3, Malkhan Singh, testified that on 28 May 2012, after receiving information about the murders, he arrived at village Pilkhar and, in his presence, blood‑stained soil and other materials were recovered. He signed recovery memos Paper No. 8Ka/1 to 8Ka/4 after they were read to him. In cross‑examination he denied that the recovery memo was not prepared before him and that the paperwork was done at the police station. He did not specifically state that the blood‑stained towel and lock were recovered from the appellant’s house, only that Exhibit Ka‑10 was read and signed., PW‑4, Shivraj Singh, stated that on 10 November 2012 he and Rajesh alias Pappu went to Barthana for work, where they met the appellant on a motorcycle accompanied by Dilip and Vikas alias Varun. They alleged that Hom Singh had lodged an FIR against the appellant, and the appellant supposedly confessed guilt. In cross‑examination PW‑4 could not specify the shop location or shopkeeper’s name, and said the Sub‑Inspector recorded his statement at about 10 am. He also said he was at the market from 12 pm to 4‑5 pm. The trial court discarded his testimony., PW‑5, Ashok Chandra Dubey, explained that he prepared Parcha No. 4 of the case diary and, after reviewing earlier investigation parchas, started investigation on 28 October 2012. He recorded another statement of Hom Singh on 30 October 2012, as well as statements of recovery witnesses Ashok Kumar (not examined) and Malkhan Singh. He arrested the appellant on 19 November 2012 and, upon the appellant’s pointing out, recovered a country‑made pistol, empty cartridge and two motorcycles. He also recovered an axe, allegedly used in the crime, and prepared recovery memo Exhibit Ka‑2. He proved the site plan (Exhibit Ka‑3) and the charge sheet (Exhibit Ka‑4) on 17 January 2013. In cross‑examination he admitted that the axe was recovered about six months after the incident., PW‑6, Vinod Kumar Pandey, the first Investigating Officer, stated that on 28 May 2012, as Station House Officer at Police Station Ikdil, he received a written report from Hom Singh against the appellant and his associates. He recorded PW‑1’s statement, inspected the spot and recovered blood‑stained and plain soil, a gold earring and prepared recovery memo Exhibit Ka‑8, as well as the site plan Exhibit Ka‑6. He also prepared the site plan of the appellant’s house (Exhibit Ka‑7) and a recovery memo (Exhibit Ka‑9) of food items, including empty quarter bottles of wine. He recovered a blood‑stained lock and towel from the appellant’s house, recorded in Exhibit Ka‑10, and produced these items in court as material Exhibit Ka‑2 to Ka‑16. In cross‑examination he said that Parcha No. 1 of the case diary and the site plans were not in his handwriting and were prepared on the informant’s instructions. He admitted that the sample seal of material exhibits was not available as it had been sent to the Forensic Science Laboratory., PW‑7, Devendra Kumar Dwivedi, the third Investigating Officer, stated that on 5 August 2012 he was posted at Police Station Ikdil and prepared Parcha No. 20 of the case diary, followed by Parcha No. 21 on 17 August 2012, disclosing attempts to arrest the appellant. In cross‑examination he said that Parcha Nos. 20, 21, 22 and 23 were not in his handwriting but in that of a Head Constable., PW‑8, Sub‑Inspector Sudhakar Singh, prepared the inquest reports of Suresh Chandra (Exhibit Ka‑11) and Vimla Devi (Exhibit Ka‑16) on 28 May 2012, and proved these reports along with other documents such as challan and photo nash marked as Exhibit Ka‑11 to Ka‑20. He stated that the inquest reports of Avnish and Surabhi were prepared by H.C.P. Amar Singh (now retired) and those of Rashmi and Shweta were prepared by SI Babu Lal Dohre (now deceased). He proved the inquest reports of Avnish (Exhibit Ka‑21), Surabhi (Exhibit Ka‑26), Rashmi (Exhibit Ka‑32) and Shweta (Exhibit Ka‑37)., PW‑9, Sanjay Dubey, Nursing Assistant at CHC Jashwant Nagar, Etawah, testified that on 28 May 2012 he was posted as Nursing Assistant at the Police Hospital, Etawah, and was present with Dr. D. P. Singh at the post‑mortem house where autopsies of all six deceased persons were conducted. He proved the post‑mortem reports (Exhibits Ka‑42 to Ka‑47) and identified the signature of Dr. D. P. Singh on them., In cross‑examination, PW‑9 stated that he was not assigned duty in the post‑mortem house, denied that Dr. D. P. Singh prepared the post‑mortem report in his presence, and clarified that his role was only to note the name of the dead body. He admitted that he was not present during the autopsies and could not comment on the contents of the reports, but denied that he had wrongly verified Dr. Singh’s signature., PW‑10, Manish Jaat, the second Investigating Officer, stated that on 29 May 2012 he was assigned investigation of the case. He prepared CD Parcha No. 2 on 29 August 2012 and recorded a clarificatory statement of the informant, and CD Parcha No. 3 on 30 May 2012 copying the inquest and autopsy reports. He prepared the recovery memo (Exhibit Ka‑48) of all blood‑stained items recovered from the spot on 29 May 2012, and recorded efforts to arrest the appellant, including raids on the appellant’s and his sister’s houses, as entered in CD Parcha Nos. 15, 17 and 18 dated 29 June, 8 July and 11 July 2012 respectively. He also prepared a list of items seized under Section 83 of the Criminal Procedure Code. He stated that after making entry in CD Parcha No. 19 dated 3 August 2012, he was transferred., In cross‑examination, PW‑10 said that Parcha Nos. 2 to 18 are in one handwriting but not his, that the informant is a resident of village Bandhana and was not a witness of the incident, and that he arrived at the scene based on information from villagers. He claimed that the previous Investigating Officer did not lift any item from the spot and that he prepared the memo Exhibit Ka‑48. He also stated that the witnesses of the recovery memo were not from that village, that he did not prepare the site plan, and that he did not record statements of any fact or formal witness, but denied that he had completed the investigation sitting at home., PW‑11, Head Constable Padamkant Dubey, proved the chik FIR (Exhibit Ka‑49) and G.D. entry (Exhibit Ka‑50). He stated that Sushil Kumar, who prepared the chik FIR and G.D. entry, had died, and he recognized the handwriting and signature., CW‑1, Nahne Ram, the Tehsildar, stated that Ram Sanehi, the appellant’s father, died on 10 November 1997 and that the agricultural land was equally divided between his two sons, Suresh Chandra and Ram Pratap. The appellant disposed of his entire agricultural land between 2004 and 2011 through six sale deeds. Half of the ancestral land of Suresh Chandra was inherited by the appellant on 25 July 2015. On 7 February 2016 the appellant executed a Power of Attorney in favour of his wife Manju. On 12 April 2016 Manju executed a sale deed of the property in favour of her minor daughter Diksha Yadav (also known as Aaradhya) and, for 22 plots of different sizes, executed sale deeds in favour of several persons. In 2019 Diksha, after attaining majority, executed six sale deeds disposing of the property, which was located on National Highway 2 and valued at about Rs 2 crore per hectare, with the total value of the properties sold using the Power of Attorney amounting to about Rs 5 crore., In cross‑examination, CW‑1 stated that during investigation the Investigating Officer did not record his statement. He admitted that the appellant inherited the property of Suresh Chandra and, as the owner, had all rights to transfer the property., After the prosecution witnesses’ statements were recorded, the trial court recorded the appellant’s statements under Section 313 of the Criminal Procedure Code on 14 October 2019, 26 October 2019 and 29 November 2019, and an additional statement on 21 November 2019. The prosecution filed a certified copy of the Forensic Science Laboratory report on 21 November 2019; the defence counsel endorsed ‘no objection’ on 25 November 2019, and the report was taken on record. The trial court convicted and sentenced the appellant as above., The present case is based on circumstantial evidence and there is no eye‑witness account of the murders. The law on conviction in cases based on circumstantial evidence is well settled. For brevity, we refer to the recent decision of a three‑Judge Bench of the Supreme Court in Shatrughna Baban Meshram v. State of Maharashtra (2021) 1 SCC 596, where paragraph 42 crystallises the legal principles to be followed in a case based on circumstantial evidence., Before dealing with the second submission on sentence, it must be observed that, as laid down by this Court in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 SCC 116], a case based on circumstantial evidence has to face strict scrutiny.
id_1275	1	Every circumstance from which a conclusion of guilt is to be drawn must be fully established; the circumstances should be conclusive in nature and tendency; they must form a chain of evidence so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused; and such chain of circumstances must be consistent only with the hypothesis of the guilt of the accused and must exclude every possible hypothesis except the one sought to be proved by the prosecution., The decision in Sharad Birdhichand Sarda v. State of Maharashtra [(1984) 4 Supreme Court Cases 116] noted the consistent view on the point, including the decision of the Supreme Court of India in Hanumant v. State of Madhya Pradesh [1952 Supreme Court Reports 1091], where a bench of three judges ruled (All India Reporter pp 34546, para 10): It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and tendency and should exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that, within all human probability, the act was done by the accused., Keeping the aforesaid legal principles in mind, we evaluate the prosecution evidence. The prosecution relied upon the following circumstances: motive; long abscondence of appellant Ram Pratap alias Tillu; receipt of a phone call by the informant Hom Singh (PW‑1) from Suresh Chandra (D‑1) in the evening preceding the night of the incident, in which the appellant allegedly threatened to kill D‑1 and his family; recovery of a blood‑stained lock and blood‑stained towel from the appellant’s house; extra‑judicial confession of the appellant before Shiv Raj; recovery of a blood‑stained axe on the appellant’s pointing out; and the serologist report indicating the presence of blood on the towel recovered from the appellant’s house., Motive: The prosecution alleged that the appellant, who was the brother of Suresh Chandra Yadav (D‑1), wanted to grab D‑1’s property because the appellant had already disposed of his entire property. Hom Singh (PW‑1) and Suresh (PW‑2) stated that they had participated in a Panchayat to resolve the dispute between the appellant and the deceased. According to their testimony, the appellant had disposed of his entire property and therefore pressured Suresh Chandra (D‑1) and his wife Vimla (D‑2) for money and property. To grab D‑1’s property, the appellant allegedly committed the murder of his brother and the entire family., Tehsildar Nanhey Ram (CW‑1) stated that after the death of D‑1’s father, the entire property equally devolved upon Suresh Chandra (D‑1) and Ram Pratap (appellant), but the appellant disposed of his entire property by executing registered deeds between 2004 and 2011. CW‑1 further proved that after the death of Suresh Chandra (deceased No. 1), half of the property was inherited by the appellant on 25 July 2015; on 7 February 2016 the appellant executed a power of attorney in favour of his wife Manju, and on 12 April 2016 Manju executed a sale deed in favour of her daughter Diksha Yadav alias Aradhya. Subsequent sale deeds of twenty‑two plots were executed by Manju and later by Diksha in 2019. CW‑1 estimated that the property transferred through several sale deeds would be worth five crores of rupees. From the statements of Hom Singh (PW‑1), Suresh (PW‑2) and Nanhey Ram (CW‑1), it is proved that the appellant was a beneficiary of his brother’s murder and therefore had motive to wipe out his brother and his entire family to grab the property., The Apex Court in Ramesh Baburao Devaskar and others v. State of Maharashtra [(2007) 13 Supreme Court Cases 501] observed: Proof of motive by itself may not be a ground to hold the accused guilty. Enmity is a double‑edged weapon; while the existence of a motive may be the reason for committing a crime, it may also lead to false implication. Suspicion based solely on motive cannot by itself lead to a conviction., Long abscondence of the appellant: According to the prosecution, after the incident the appellant absconded and could not be promptly arrested. Sub‑Inspector Ashok Chandra Dubey (PW‑5) showed that the appellant was arrested on 19 November 2012, about five and a half months after the incident. Sub‑Inspector Manish Jaat (PW‑10) stated that on 7 June 2012 he approached the Supreme Court of India to obtain process under Section 82 of the Criminal Procedure Code against the appellant and on 8 June 2012 a news item was published announcing the arrest. He later sought a proclamation under Section 83 of the Criminal Procedure Code. On 11 July 2012, PW‑10 entered the list of articles attached from the appellant’s house. These facts show that the prosecution proved that the appellant was not available at his last known residence and could be arrested only after more than five and a half months despite coercive steps, reflecting conduct relevant under Section 8 of the Indian Evidence Act., The Supreme Court in Sujit Biswas v. State of Assam [2013 (12) Supreme Court Cases 406] observed that the mere abscondence of an accused does not lead to a firm conclusion of a guilty mind. Abscondence is relevant evidence, but its value depends on surrounding circumstances and must be taken as a minor item in evidence unless it is linked with other incriminating circumstances., Hom Singh (PW‑1) stated that on the eve of the incident, at about 6 p.m., he received a phone call from his brother‑in‑law Suresh Chandra (D‑1) that the appellant had threatened that D‑1’s entire family would be killed that night. In cross‑examination PW‑1 neither disclosed the mobile number on which the call was received nor the number of D‑1. PW‑1 claimed that the mobile on which he received the call had been lost. In these circumstances the statement of PW‑1 regarding the receipt of the phone call does not inspire confidence, and the prosecution has failed to prove this circumstance beyond reasonable doubt., Recovery of a blood‑stained lock and blood‑stained towel from the appellant’s house: On 28 May 2012, Sub‑Inspector Vinod Kumar Pandey (PW‑6) recovered a blood‑stained lock and a blood‑stained piece of towel from the appellant’s house and prepared a seizure memo (Exhibit Ka‑10). The memo records that the recovery was made in the presence of two witnesses, Malkhan Singh (PW‑3) and Ashok Kumar (not examined). No time is mentioned in the memo, and no other police personnel signed it. It is unclear whether the verandah from which the towel was recovered was accessible from outside, and the memo does not explain how the witnesses, who were residents of a different village, were present at the search. These omissions create serious doubt about the reliability of the recovery., The site plan (Exhibit Ka‑7) shows that the towel was recovered from an inner portion of the house (point B) and the lock from the main door (point A). The front verandah opens into two rooms – one belonging to the appellant’s wife Manju and the other towards the east – both of which provide access to the inner verandah and point B. The seizure memo and the site plan do not indicate that these rooms were locked, nor do they show that point B was inaccessible from outside. In cross‑examination, PW‑6 admitted that he prepared the site plan on the instructions of the informant Hom Singh (PW‑1), yet the seizure memo does not show that PW‑1 was present during the search. No signature of PW‑1 appears on the memo., Malkhan Singh (PW‑3) did not state that the lock and towel were recovered in his presence; he only testified that he signed paper No. 8 Ka/3 after it was read to him. The other witness, Ashok Kumar, was not examined. Furthermore, PW‑6 admitted that he did not prepare Parcha No. 1 of the case diary dated 28 May 2012 and that the diary entries from Parcha No. 1 to 16 are in a single handwriting not attributable to him. Sub‑Inspector Devendra Kumar Dwivedi (PW‑7) and Sub‑Inspector Manish Jaat (PW‑10) similarly disclaimed authorship of several diary entries. These inconsistencies raise doubts about the proper documentation of the recovery., In our opinion, these circumstances suggest that the investigation was not conducted properly and appears tainted. Under Section 172 of the Criminal Procedure Code, the investigating officer must maintain a daily case diary noting all steps of investigation. While lapses in a case diary may not affect a trial based on ocular evidence, in a case relying on circumstantial evidence such lapses are fatal when the prosecution’s case depends heavily on the recovery of incriminating articles., Consequently, we find that the alleged recovery of the blood‑stained lock and towel on 28 May 2012 has not been proved beyond reasonable doubt, nor has it been established that the place from which the towel was recovered was not accessible without removing the lock., Extra‑judicial confession: The prosecution relied on an alleged extra‑judicial confession made by the appellant before Shiv Raj Singh (PW‑4). The Apex Court in Sahadevan v. State of Tamil Nadu [2012 (6) Supreme Court Cases 403] held that extra‑judicial confession is a weak piece of evidence and must inspire confidence and be corroborated by other prosecution evidence. The same principle was approved in Shailendra Rajdev Paswan v. State of Gujarat [(2020) 14 Supreme Court Cases 750]. In the present case, PW‑4 claimed that on 10 November 2012, after meeting the appellant, he recorded a statement at 10 a.m., but he also said he went to market at about 12 noon and remained there till 4‑5 p.m., making the timing of his statement implausible. Moreover, PW‑4’s testimony does not relate to any specific confession of guilt but only to knowledge of the FIR and a request for settlement. Accordingly, the trial court’s finding that PW‑4’s testimony is not credible is affirmed, and the circumstance of extra‑judicial confession is discarded., Recovery of a blood‑stained axe on the appellant’s pointing out: The prosecution asserted that on 19 November 2012, after the appellant’s arrest, a blood‑stained axe was recovered from the roof of a shop at the appellant’s direction. The recovery memo (Exhibit Ka‑2) shows the axe was found on an open roof five and a half months after the incident. No forensic examination was conducted to establish the presence of human blood. Because the axe was recovered from an open place and no scientific analysis links it to the crime, it cannot be treated as an incriminating circumstance., Serological report: The serologist’s report dated 5 March 2013 (paper no. 122 Ka/2) indicates the presence of blood on the towel but does not ascertain its origin. The sample on the lock was too small to determine whether it was blood. A later forensic science laboratory report dated 29 August 2013 concluded that the blood on the towel could not be ascertained because it had disintegrated. In Raghav Prapanna Tripathi v. State of Uttar Pradesh (AIR 1963 Supreme Court 74), the Supreme Court held that without a serologist’s report confirming human origin, blood‑stained earth has no evidentiary value. Similarly, Balwan Singh v. State of Chhattisgarh [(2019) 7 Supreme Court Cases 781] and Madhav v. State of Madhya Pradesh (AIR 2021 Supreme Court 4031) emphasized that recovery of blood‑stained articles must be proved beyond reasonable doubt and that the origin of the blood must be established, though a fixed formula is not required., From the above judgments it emerges that, although the prosecution may have proved motive and the appellant’s abscondence, it failed to prove any other incriminating circumstance beyond reasonable doubt. Motive and abscondence alone, however strong, cannot substitute for proof. The Supreme Court in State of Odisha v. Banabihari Mohapatra [(2021) All India Reporter 1375] reiterated that suspicion, however strong, cannot replace proof, and an accused is presumed innocent unless proved guilty beyond reasonable doubt. Likewise, Shailendra Rajdev Paswan [(2020) 14 Supreme Court Cases 750] emphasized that in circumstantial cases all links of the chain must be complete before a conviction can be recorded., In the present case the chain of circumstances pointing to the guilt of the appellant could not be completed. Accordingly, the appellant is entitled to be acquitted., For all the reasons recorded above, the judgment of the trial court cannot be sustained and is set aside. The appeal is allowed. The reference to confirm the death penalty is answered in the negative and the reference to confirm the death penalty awarded to appellant Ram Pratap alias Tillu is rejected. The judgment and order of the trial court is set aside. The appellant Ram Pratap alias Tillu is acquitted of all charges and shall be released forthwith, unless wanted in any other case, subject to compliance with the provisions of Section 437‑A of the Criminal Procedure Code to the satisfaction of the lower court. A copy of this judgment shall be sent to the lower court for information and compliance.
id_1276	0	The petitioners are before the Hon'ble High Court of Karnataka calling into question proceedings in Criminal Case No. 1580/2022 registered for an offence punishable under Section 3 of the Karnataka Open Places (Prevention of Disfigurement) Act, 1981 (hereinafter referred to as the Act)., A complaint was registered by the Headmaster of the Government Girls High School, Near CMC Hosapete, Vijayanagara, stating that at about 05:45 p.m. when all the students had left and the school was closed, the walls were clean, but when he entered the premises at 09:00 a.m. on the next day, i.e., 16 March 2022, the walls bore the painting \Hijab is our dignity\ in black paint. Consequently, a complaint was lodged which became Crime No. 37/2022 for the aforesaid offence. The police, after investigation, filed a charge sheet against the petitioners and the concerned court registered Criminal Case No. 1580/2022. The registration of the case drives the petitioner to this petition., The learned counsel for the petitioner submits that the offence under the Act could not have been laid against the petitioner because Hosapete Town is not one of the districts notified to come under the Act, as required by law. He seeks quashment of the proceedings., The learned Headmaster, Government Girls High School, while refuting the petitioner's submissions, admits that no notification has been issued, as is necessary under the Act, to bring Hosapete Town within its ambit., I have given careful consideration to the submissions made by the respective learned counsel and have perused the material on record. The narrated facts are not in dispute. What is alleged is an offence punishable under Section 3 of the Act. Section 3 reads as follows: Penalty for unauthorised disfigurement by advertisement—Whoever, by himself or through another person, affixes to, erects, inscribes or exhibits on any place open to public view any advertisement without the written permission of the local authority having jurisdiction over such area, shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both. Provided that nothing in this section shall apply to any advertisement which (i) is exhibited within the window of any building if the advertisement relates to the trade, profession or business carried on in that building; (ii) relates to the trade, profession or business carried on within the land or building upon or over which such advertisement is exhibited or to any sale or letting of such land or building or any effects therein or to any sale, entertainment or meeting to be held on or upon or in the same; (iii) relates to the name of the land or building, upon or over which the advertisement is exhibited, or to the name of the owner or occupier of such land or building; (iv) relates to the business of a railway administration and is exhibited within any railway station or upon any wall or other property of a railway administration; (v) is affixed to or exhibited on any ancient and historical monument declared to be of national importance under the Ancient Monuments and Archaeological Sites and Remains Act, 1958., For an incident to become an offence under Section 3, the rigor of Section 1 must be observed. Section 1 directs that to bring a place or local area within the ambit of the Act, a notification from the State Government is imperative. It is an admitted fact that Hosapete Town has not been notified to come within the Act. Consequently, the respondents' allegation that the petitioners have incurred the wrath of Section 3 is untenable. In the absence of a State notification bringing Hosapete Town under the Act, further proceedings would constitute an abuse of process and result in miscarriage of justice., For the aforesaid reasons, the petition deserves to succeed. Accordingly, the petition is allowed. The proceedings initiated against the petitioners/accused Nos. 1 and 2 in Criminal Case No. 1580/2022 in Crime No. 37/2022 registered by Hosapete Town Police under Section 3 of the Act, pending on the file of the Principal Civil Judge and Judicial Magistrate First Class, Hosapete, are quashed.
id_1278	0	Prajakta Vartak, Paromita Puthran – Petitioners. The Municipal Corporation of Greater Mumbai – Respondent (Not on board. Taken on board.) RNA Royale Park Co-operative Housing Society and Others – Petitioners. Municipal Corporation of Greater Mumbai and Others – Respondents. Mr. Nishad Nevgi with Ms. Anjali Malekar in behalf of Ms. Samaa Shah for the petitioner in Writ Petition Number 702 of 2023 and for the respondent number 12 in Writ Petition Number 148 of 2023. Mr. Rahul Sarda with Ms. Nidhi Doliya for the petitioner in Writ Petition Number 148 of 2023 and for the respondents numbers 15 to 17 in Writ Petition Number 702 of 2023. Mr. Kunal Waghmare for the Municipal Corporation of Greater Mumbai. Mr. Manish Upadhye, Additional Government Pleader for the respondents numbers 8, 10 to 14, State., On the backdrop of earlier orders passed by the Supreme Court of India, we have heard learned counsel for the parties on the present petitions., There appears to be a dispute regarding the designated feeding areas for the dogs. The details are set out in the report of Mr. Abodh Aras, Chief Executive Officer of the organization The Welfare of Stray Dogs, who was appointed by the Supreme Court of India to resolve the issues raised in the present proceedings. Mr. Abodh Aras visited the respondent RNA Royale Park Co-operative Housing Society (hereinafter the Society) and, based on his observations, prepared a report rendering his findings. The report is annexed to the additional affidavit filed on behalf of the petitioner as Exhibit E (page 39)., Learned counsel for the Society submits that Feeding Area Number 2 and Feeding Area Number 4 need to be reconsidered. Feeding Area Number 2 concerns six dogs, and Feeding Area Number 4 concerns one elderly dog that is not in proper health and does not move from that area. Counsel states that both issues can be amicably resolved. The parties are urged to discuss the matters concerning Feeding Area Numbers 2 and 4 and reach an amicable resolution to designate appropriate feeding areas for these seven dogs. Regarding Feeding Area Numbers 1 and 3, there is no dispute., The petitioner intends to provide drinking water to the dogs. The parties need to amicably resolve any dispute, as drinking water must be made available to the dogs. It is the obligation of the residents of the Society to ensure adequate water is provided to the animals, especially considering the onset of the summer season., Another concern raised before us is the timing for feeding the dogs. The parties are directed to decide the feeding schedule during the day, allowing some flexibility. Further discussion should occur between the parties in consultation with Mr. Abodh Aras to reach an appropriate decision., The Society has filed a companion writ petition (Writ Petition Number 148 of 2023) seeking a direction to the Municipal Corporation of Greater Mumbai to take appropriate measures regarding vaccination and sterilisation of the dogs, and to consider any other grievances raised by the petitioner. The Designated Officer of the Municipal Corporation shall hear the parties and take an appropriate decision on all issues raised by the petitioner, also considering the views of Mr. Abodh Aras., We note that any complaint by the petitioner regarding the appointment of bouncers need not be entertained, as learned counsel for the Society has stated that the persons appointed were security guards and that female security guards are now appointed. We accept this statement. Our earlier order recorded that no bouncers were appointed by the Society. If the petitioner has any grievance concerning the legality of such security personnel or alleges that they are in fact bouncers, and if evidence exists, the petitioner may pursue appropriate legal proceedings for redress. All contentions of the parties in this regard are expressly kept open., Regarding security guards causing any scare or threat to the animals by using sticks, the Society is directed to entertain complaints from the petitioner and other members of the Society so that appropriate action can be taken against such guards. Such coercive methods constitute cruelty to the animals and may aggravate their behavior., In the above circumstances, we do not intend to delve into any disputed factual issues canvassed before us. Further adjudication of the petitions is not called for. The petitions stand disposed of in terms of the above observations. No costs., At this stage, learned counsel for the petitioner, on instructions of the petitioner who is present in the Supreme Court of India, states that the petitioner will not bring any new stray dogs within the premises of the Society. The statement is accepted.
id_1280	0	Hon'ble Pratinker Diwaker, Chief Justice, and Hon'ble Ashutosh Srivastava, Justice, received a WhatsApp message at 3:25 pm today. A direction was given to constitute this Bench at 8:00 pm today at the residence of the Chief Justice to hear the matter. An intimation was also given to the office of the learned Advocate General about the constitution of this Bench., At the time of hearing at 8:00 pm, a letter petition was presented by Sri Ram Kaushik, Advocate, espousing the cause of the prosecutrix (hereinafter referred to as X) and giving the details of the gruesome incident and the injuries suffered by X. Apart from bringing certain facts on record, Sri Kaushik also requested that the Supreme Court of India take suo moto cognizance of the matter of the gruesome gang rape of X, who was on duty inside Saryu Express on the night of 30/31 August 2023 by unknown assailants. A request was also made for hearing Union of India and its other wings., Sri Ram Kaushik submitted that, according to media reports, the alleged incident was brought to light when certain passengers who boarded Saryu Express from Ayodhya Junction at about 4:00 am found X in a deplorable state, in a pool of blood, unable to move herself, with a deep cut on her face and other injuries. He stated that, based on a written complaint on behalf of the brother of X, FIR No. 0029 of 2023 dated 30 August 2023 under sections 332, 353 and 307 of the Indian Penal Code has been registered. He further submitted that, considering the serious and physical condition of X, sections 376 and 376D of the Indian Penal Code should also have been added in the FIR., It was further submitted that the Railway Authorities have completely failed to implement various safety measures involving the fundamental rights of women. The present incident clearly shows an utter violation of certain provisions of the Indian Railways Act. Moreover, the Railway Protection Force has completely failed in the discharge of its duties and responsibilities in giving effect to the rules and regulations formulated for the protection of passengers. The incident is not only a crime against X and women, but against the entire society, destroying the psychology of women., Looking at the seriousness of the matter, the Supreme Court of India thinks it appropriate to direct the office to register this letter as a Public Interest Litigation (criminal). Accordingly, the Registry shall register the aforesaid letter as a Public Interest Litigation (criminal) and issue notices to Union of India through its Secretary, Ministry of Railways/Railway Board, New Delhi; Director General of Railway Protection Force; State of Uttar Pradesh through its Secretary, Ministry of Home and State Commission for Women, Uttar Pradesh. Notices shall be issued from the Registry., Sri Manish Goyal, Additional Advocate General, assisted by Sri A.K. Sand, learned Government Advocate, Sri J.K. Upadhyay, Additional Government Advocate (I) and Sri Amit Sinha, Additional Government Advocate (I), appeared on behalf of the State. The Additional Solicitor General of India, representing the Union of India, may also be duly informed (physically and telephonically) about the registration of this Public Interest Litigation. The matter is to be listed for 4 September 2023 at 12:00 noon. Sri A.K. Sand, learned Government Advocate, may also inform the Additional Solicitor General of India about this matter. At the time of hearing, learned State counsel shall place the case diary before the Supreme Court of India. The Investigating Officer is also required to remain present before the Court.
id_1283	0	Case: Bail No. 73 of 2021. Applicant: Kaleem. Opposite Party: Union of India through Intelligence Officer, Narcotics Control Bureau, Lucknow. Counsel for Applicant: Indrajeet Shukla. Counsel for Opposite Party: Shikha Sinha and Akhilesh Kumar Awasthi. Honourable Siddharth J. Heard learned counsel for applicant Shri Akhilesh Kumar Awasthi, learned counsel for the Narcotics Control Bureau and perused the record., This bail application has been preferred by the accused‑applicant Kaleem, who is involved in Case Crime No. 03 of 2019 (Special Session Trial No. 119 of 2019) under Sections 8, 20, 29 and 60(3) of the Narcotic Drugs and Psychotropic Substances Act, Police Station – Narcotics Control Bureau, Lucknow, District Faizabad., Learned counsel for the applicant submitted that the applicant has been falsely implicated in the present case due to an ulterior motive, on the basis of a false and planted recovery of 349.250 kg of ganja and that there is no public witness of the alleged recovery. He further submitted that the mandatory provision of Section 50 of the Narcotic Drugs and Psychotropic Substances Act has not been complied with., At the stage of consideration of bail it cannot be decided whether the offer given to the applicant and his consent obtained was voluntary; these are questions of fact that can be determined only during trial and not at the present stage. In case of prima facie non‑compliance of the mandatory provision of Section 50 the accused is entitled to be released on bail within the meaning of Section 37 of the Narcotic Drugs and Psychotropic Substances Act. The applicant has no criminal history to his credit and has been in jail since 18 January 2019. He undertakes that he will not misuse liberty if granted., Learned counsel for the Narcotics Control Bureau, Shri Akhilesh Kumar Awasthi, opposed the prayer for bail by contending that the innocence of the applicant cannot be adjudged at the pre‑trial stage, that the applicant is involved in supplying contraband and therefore does not deserve any indulgence, and that if released on bail the applicant will again indulge in similar activity. He submitted that the reasonable grounds mentioned in Section 37(1)(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act require more than prima facie grounds; they imply substantial probable cause for believing that the accused is not guilty of the offence charged., The Apex Court in Union of India v. Shiv Shankar Keshari, (2007) 7 SCC 798 held that while considering an application for bail under Section 37 of the Act the court is not called upon to record a finding of not guilty; the court’s function is limited to determining whether there are reasonable grounds for believing that the accused is not guilty and recording its satisfaction on the existence of such grounds, without pronouncing an acquittal., Considering the facts of the case, the arguments advanced by the parties, the ratio of the Apex Court’s judgment in Union of India v. Shiv Shankar Keshari, the larger mandate of Article 21 of the Constitution of India, the nature of the accusations, the nature of the evidence, the severity of the punishment that conviction would entail, the character of the accused‑applicant, circumstances peculiar to the accused, the reasonable possibility of securing the presence of the accused at trial, the reasonable apprehension of witnesses being tampered with, the larger interest of the public and the State, and without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail., Let the applicant Kaleem be released on bail in the aforesaid case crime number upon furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the High Court of Allahabad, subject to the following conditions: The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel; in case of his absence without sufficient cause, the trial court may proceed against him under Section 229‑A of the Indian Penal Code. If the applicant misuses the liberty of bail, a proclamation under Section 82 of the Criminal Procedure Code shall be issued and, if the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him under Section 174‑A of the Indian Penal Code. The applicant shall remain present in person before the trial court on the dates fixed for opening of the case, framing of charge and recording of statement under Section 313 of the Criminal Procedure Code; if, in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, the trial court may treat such default as abuse of liberty of bail and proceed against him in accordance with law. The party shall file a computer‑generated copy of the order downloaded from the official website of the High Court of Allahabad. The concerned court, authority or official shall verify the authenticity of such computerized copy of the order from the official website of the High Court of Allahabad and shall make a declaration of such verification in writing. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. The trial court will make all efforts to conclude the trial against the applicant within a period of one year.
id_1284	0	Date of decision: 12th October, 2023. Through: Mr. Sagar Chandra, Ms. Shubhie Wahi and Ms. Ankita Seth, Advocates. Versus: Mr. Amit Tomar, Advocate Prathiba M. Singh, Judge (Oral)., The hearing was conducted in hybrid mode. Interim Application 20160/2023 (for exemption). This is an application filed by the Plaintiff seeking exemption from filing originals, certified, cleared, typed or translated copies of documents, left side margins, electronic documents, etc. Original documents shall be produced or filed at the time of admission or denial, if sought, strictly as per the provisions of the Commercial Courts Act and the Delhi High Court (Original Side) Rules, 2018. Exemption is allowed subject to all just exceptions. Accordingly, the application is disposed of., This is an application filed by the Plaintiff seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, Commercial Courts Act). The Plaintiff, if it wishes to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act and the Delhi High Court (Original Side) Rules, 2018. The application is disposed of., The plaint is to be registered as a suit. Issue summons to the Defendants through all modes upon filing of process fee. The summons to the Defendants shall indicate that the written statements to the plaint shall be positively filed within 30 days from the date of receipt of summons. Along with the written statements, the Defendants shall also file an affidavit of admission or denial of the Plaintiff’s documents, without which the written statements shall not be taken on record. Liberty is given to the Plaintiff to file the replication(s) within 15 days of receipt of the written statements. Along with the replication(s), an affidavit of admission or denial of the Defendants’ documents shall be filed by the Plaintiff, without which the replication(s) shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines., List before the Joint Registrar for marking of exhibits on 4th December, 2023. It is made clear that any party unjustifiably denying documents shall be liable to be burdened with costs. List before the High Court on 8th April, 2024. Issue notice., The Plaintiff, Britannia Industries Limited, has filed the present suit against Defendant No.1, Amar Biscuit Private Limited, and its promoters, i.e., Defendants Nos. 2 to 4, for manufacturing, selling, and offering for sale butter cookies under the mark GOOD TIME which has an almost identical packaging. The Plaintiff is one of the leading manufacturers and sellers of biscuits, crackers and various other food items under the trademark GOOD DAY, which was adopted by the Plaintiff in 1986. The Plaintiff company itself is a 100‑year‑old Indian company dealing with various food products since 1918. The Plaintiff’s revenue for the financial year 2022‑23 crossed over Rs 16,000 crores. The GOOD DAY mark, registration number 452003 in class 30, was adopted in 1986 and has been used across a large range of products by the Plaintiff including biscuits, bread, confectionery, etc. The GOOD DAY mark has been repeatedly protected against misuse by various courts in proceedings initiated by the Plaintiff. The sales turnover of the GOOD DAY products is stated to be Rs 3,510 crores in the financial year 2022‑2023 with advertising and promotion at Rs 255 crores., The Plaintiff has a significant presence on online platforms such as Facebook, Twitter, Instagram and YouTube with thousands of followers. The product that is the subject matter of the present case is the GOOD DAY BUTTER COOKIES product, which was launched in 1986. Around 1997 a distinctive packaging for the product was adopted. It is averred that the packaging has always been in the colour combination of blue and yellow, with the cookie being shown in a specific form. Over the years the Plaintiff has made minor changes or modifications in the trade dress, however it claims that the essential and prominent features were retained. The evolution of the GOOD DAY BUTTER COOKIES packaging is set out in paragraph 18 of the plaint. The Plaintiff claims that the said packaging of GOOD DAY BUTTER COOKIES is not merely a trademark label entitled to protection but is also an artistic work in which the Plaintiff enjoys copyright. The Plaintiff claims that the sale of GOOD DAY BUTTER COOKIES for the financial year 2022‑2023 is Rs 1,889 crores and the advertisement and promotional expense for the product is around Rs 137 crores., The various proceedings which have been taken to protect the mark GOOD DAY against similar names and packagings are set out in paragraph 27., The Plaintiff recently learned from a consumer who posted on platform X (Twitter) about the Defendants’ adoption of the infringing trade mark and dress GOOD TIME bearing the same colour combination of blue and yellow. A comparative chart of the Plaintiff’s and Defendants’ product is set out, showing colour combination of blue, yellow and white; adoption of an identical colour combination; the mark GOOD DAY written in bold white text against a blue background on the left side of the packaging/trade dress; the impugned mark GOOD TIME written in bold white text against a blue background on the left side of the packaging/trade dress; a combination of red and white colour placed above the trade mark GOOD DAY; the house mark SAGAR, represented in a confusingly similar combination of red and white colour as that of the Britannia logo, placed above the words GOOD TIME; placement of butter cookie on the right part of the packaging/trade dress along with butter shavings; identical placement of cookies with similar curved grooves on the right side of the impugned packaging/trade dress along with butter shavings; placement of the words “Butter Cookies” under the mark GOOD DAY and identical placement under the impugned mark GOOD TIME. Upon realizing this misuse on 6th October 2023, the Plaintiff filed the present suit., Senior counsel appeared for the Defendants upon advance notice. The two competing products, their packagings and various features set out above would show that the Defendants have made a fully thought‑out and deliberate attempt to copy and imitate the Plaintiff’s cookie packaging. Senior counsel for the Plaintiff referred to the Facebook page of Defendant No.1 containing posts where different navy blue and yellow packaging has been used by the Defendants for its butter cookies/biscuits until March 2022. The images are set out below., According to senior counsel for the Plaintiff, the changeover to the new packaging is nothing but an attempt to pass off the Defendants’ products as those of the Plaintiff., Mr. Amit Tomar, senior counsel appearing for the Defendants, submitted that the Defendants have been in consultation with him for the launch of the GOOD TIME BUTTER COOKIES product; however, he was not aware that they had already launched it in the packaging that is complained of. He submitted that he may be given time to seek instructions from his clients., The High Court has heard the counsel. By their very nature, butter cookies are products purchased by children, by literate and illiterate people across urban and rural areas. The enormous turnover of the Plaintiff for the Britannia GOOD DAY cookies leaves no doubt in the mind of the Court that the packaging and product achieved enormous recognition and goodwill in the market. Any attempt to imitate the name, the mark or the packaging must be stopped immediately as consumers are likely to be confused between the two sets of products. Considering that these are food products, any chance of confusion has to be completely avoided., Considering the overall facts, the High Court is convinced that the Plaintiff makes out a prima facie case for the grant of an ad interim injunction. The balance of convenience also lies in favour of the Plaintiff considering that it is a well‑reputed brand selling GOOD DAY BUTTER COOKIES for a long time, as also other products under the said trademark and trade dress. If an ad interim injunction is not granted, it will cause irreparable loss or harm to the Plaintiff, as the Defendants’ packaging is deceptively similar to that of the Plaintiff’s, causing confusion to customers. The Defendants are also taking a piggy‑back ride on the Plaintiff’s goodwill and reputation in an identical business., Accordingly, till the next date of hearing, the Defendants and all others acting for or on their behalf shall be restrained from manufacturing, selling, or offering for sale butter cookie biscuits or any other products in the infringing packaging that is identical or deceptively similar to the Plaintiff’s mark GOOD DAY / GOOD DAY BUTTER COOKIES. The Defendants shall take down any online listings of this product within 48 hours., A stock statement of the material bearing the impugned mark and packaging shall be placed on record by the Defendants on the next date. List on the dates fixed above.
id_1287	0	CrlM 1586/2022 Reserved on: 31 July 2023 Date of Decision: 01 September 2023 Dilshad Sheikh and others Petitioner Through: Mr. Areeb Javid Kawoosa, Advocate Versus Sabha Sheikh Through: Mr. Saqib Shabir, Advocate Respondent(s) Honorable Mr. Justice Javed Iqbal Wani, Judge., The petitioners in the instant petition have invoked the inherent power of this Court enshrined under section 482 of the Criminal Procedure Code seeking quashment of the complaint filed by the respondent herein under section 156(3) of the Criminal Procedure Code titled as Sabha Sheikh versus Dilshad Sheikh and others, filed before the City Magistrate Court of Srinagar along with the order dated 3 October 2022 (impugned order) passed therein., The facts discernable from the record reveal that the respondent is the daughter of petitioner 1 and sister of petitioners 2 and 3, being successors‑in‑interest of one Javed Sheikh, who died in 1986., It is stated that the respondent has not been on good terms with the petitioners, having been litigating with them in respect of various properties left behind by the deceased Javed Sheikh., The respondent earlier filed a complaint before the Chief Judicial Magistrate Court of Srinagar against petitioner 1, where cognizance for offences under section 447 of the Indian Penal Code was taken by order dated 5 November 2021. The complaint and the order of cognizance dated 5 November 2021 were challenged by petitioner 1 before this Court in CRM(M) 403 of 2021, which was disposed on 20 April 2022, quashing the complaint and the proceedings emanating therefrom., Facing the dismissal of the complaint, the respondent, a resident of New Delhi, travelled to Srinagar and allegedly started illegal activities and committed offences against petitioner 1, necessitating the filing of a complaint by petitioner 1 before the police station concerned on 10 May 2022. A further complaint was filed by petitioner 1 on 16 June 2022 after the respondent threatened petitioner 1 with physical assault., The respondent filed an application before the Revenue authorities on 24 May 2022 for partition of the properties situated at Nursing Garh and Kothi Bagh. The Tehsildar South, Srinagar, passed an ex parte order on 24 June 2022 constituting a team for carrying out the partition on 28 June 2022. Aggrieved, the petitioner filed an application for recalling the order before the Tehsildar on 27 June 2022, and the order was consequently recalled., The respondent also filed a suit for partition of the properties left behind by her deceased father in the Principal District Court of Srinagar, which was transferred for adjudication to the Chief Judicial Magistrate Court of Srinagar., Having failed to obtain any relief from the courts, the respondent filed an application under section 156(3) of the Criminal Procedure Code seeking a direction to the Station House Officer, Crime Branch, for taking necessary action, alleging that her signatures were forged and that a writ petition had been withdrawn in 2015. The complaint was disposed of by the City Judge / Judicial Magistrate Court of Srinagar, holding that on preliminary enquiry it was desirable to direct the Station House Officer to conduct a preliminary enquiry and, if a cognizable offence was made out, to register a First Information Report and file a report. The petitioners claim to have no information about the filing of the application and learned of it only after being summoned by the Crime Branch., The respondent again approached the Revenue authorities for demarcation of property, whereupon an order was passed by the Tehsildar South., On 19 September 2022 at around 6 PM, twelve to fourteen persons forcibly and unauthorisedly entered the petitioners' property with Naib Tehsildar Kothibagh, broke open the gates and threatened the petitioner. The petitioner filed an application before the Divisional Commissioner, who directed an inquiry into the matter., Failing to obtain any relief, the respondent filed the impugned complaint, and the City Magistrate Court of Srinagar passed the impugned order., The petitioners, being accused persons in the impugned complaint filed by the respondent under section 156(3) of the Criminal Procedure Code, have maintained the instant petition seeking quashment of the complaint as well as of the impugned order dated 3 October 2022., The response filed by the respondent admits that the respondent filed the impugned complaint under section 151(3) of the Criminal Procedure Code before the Magistrate after the requirements under section 154(3) of the Criminal Procedure Code were complied with, having reported the matter not only to the Station House Officer concerned but also to the Senior Superintendent of Police and to the Director General of Police through various emails, copies of which are placed on record with the objections., The objections state that the petitioners resorted to violence, broke open the locks of the respondent's room, restrained the respondent from entering the house, and damaged furniture of the rooms in the property possessed by the complainant, taking advantage of the decision of the Court in the earlier CRM(M) 403/2021 petition and the cognizance order passed thereon., The objections deny that the respondent is giving colour of criminal offences to a civil dispute and assert that the impugned order was passed validly and legally by the Magistrate and that, upon furnishing a report of enquiry/investigation by the police, if no offence is made out against the petitioners, the complaint would be dismissed. Heard learned counsel for the parties and perused the record., The appearing counsel for the petitioners vehemently argues that the complaint filed by the respondent is baseless and unfounded, and that the impugned order was passed by the Magistrate in violation of the mandatory guidelines laid down by the Supreme Court of India in the case titled Priyanka Srivastava and another versus State of Uttar Pradesh and others reported in 2015 (6) SCC 287, followed by the judgment in Babu Venkatesh and others versus State of Karnataka and another reported in (2022) 5 SCC 639, as there was nothing on record suggesting that the respondent had complied with the provisions of sections 154(1) and 154(3) of the Criminal Procedure Code before invoking section 156(3). The counsel also contends that the allegations levelled in the complaint pertain to the properties left behind by their predecessor‑in‑interest, constituting a private family dispute, and that the respondent sought to set criminal law in motion for settlement of such civil family disputes., Learned counsel for the respondent, on the contrary, while opposing the petitioners' contentions, contends that the complaint was filed for the criminal acts committed by the petitioners and that the respondent invoked the provisions of section 156(3) of the Criminal Procedure Code after complying with sections 154(1) and 154(3)., Law is settled regarding the ambit and scope of section 156(3) of the Criminal Procedure Code in a series of judgments of the Supreme Court of India, including Vinubhai Haribhai Malaviya and others versus State of Gujarat and another reported in (2019) 17 SCC 1, wherein paragraphs 24 and 25 state: \24. Likewise, in Sakiri Vasu v. State of U.P. and Ors. (2008) 2 SCC 409, this Court held: 12. Thus in Mohd. Yousuf v. Afaq Jahan [(2006) 1 SCC 627: (2006) 1 SCC (Cri) 460: JT (2006) 1 SC 10] this Court observed: (SCC p. 631, para 11) 11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.\, The same view was taken by this Court in Dilawar Singh v. State of Delhi [(2007) 12 SCC 641 : JT (2007) 10 SC 585] (JT vide para 17). The Court further clarified that even if an FIR has been registered and the police are making the investigation, a person who feels the investigation is not proper may approach the Magistrate under section 156(3) of the Criminal Procedure Code, and if the Magistrate is satisfied, he can order a proper investigation and take other suitable steps., Section 156(3) of the Criminal Procedure Code states: ‘156. (3) Any Magistrate empowered under section 190 may order such an investigation as abovementioned.’ The words ‘as abovementioned’ refer to section 156(1), which contemplates investigation by the officer in charge of the police station., Section 156(3) provides a check by the Magistrate on the police performing its duties under Chapter XII of the Criminal Procedure Code. Where the Magistrate finds that the police have not performed their duty of investigating the case, or have not done so satisfactorily, he may direct the police to conduct the investigation properly and may monitor the same., The power of the Magistrate to order further investigation under section 156(3) is an independent power and does not affect the power of the investigating officer to continue investigation even after submission of his report under section 173(8). Hence the Magistrate can order reopening of the investigation even after the police submit the final report, vide State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272]., In our opinion, section 156(3) of the Criminal Procedure Code is wide enough to include all such powers in a Magistrate necessary for ensuring a proper investigation, including the power to order registration of an FIR and to order a proper investigation if the Magistrate is satisfied that a proper investigation has not been done., It is well settled that when a power is given to an authority to do something, it includes incidental or implied powers necessary for the proper execution of that thing. Thus, where an Act confers jurisdiction, it implicitly also grants the power to employ such means as are essentially necessary for its execution., It is thus clear that the Magistrate’s power under section 156(3) of the Criminal Procedure Code is very wide, for it is this judicial authority that must be satisfied that a proper investigation by the police takes place. Article 21 of the Constitution of India mandates that all powers necessary, which may also be incidental or implied, are available to the Magistrate to ensure a proper investigation, which would include ordering further investigation after a report is received under section 173(2) and which power continues to endure at all stages of the criminal proceedings until the trial commences. A reference to the judgments of the Supreme Court of India in Priyanka Srivastava also is relevant, wherein paragraphs 30 and 31 state: \30. In our considered opinion, a stage has come in this country where Section 156(3) Criminal Procedure Code applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. 31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari, are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.\, The record shows that the complainant forwarded a complaint on 5 May 2022 before the Station House Officer concerned, as evident from annexure‑B appended to the objections, which contains pictures of WhatsApp chats between the complainant and the Station House Officer showing that the complaint was submitted and the SHO responded that the complaint had been diarised and was proceeding legally. Further perusal reveals that the complainant requested the SHO to provide details of the three complaints filed by her on 9 June 2022. Another complaint appears to have been filed through WhatsApp on 22 September 2022 after the complainant alleged harassment and attack by petitioner 1. The respondent also lodged complaints before the Senior Superintendent of Police on 24 June 2022, 20 September 2022, 27 September 2022 and 3 October 2022, intimating that the complaints were also filed before the SHO who had failed to give any confirmation., These facts amount to substantial compliance with sections 154(1) and 154(3) of the Criminal Procedure Code, and the complainant can be said to have complied with the requirement for invoking section 156(3). Moreover, compliance with filing an affidavit along with the application under section 156(3), as mandated in Priyanka Srivastava, appears to have been fulfilled by the complainant., In view of the foregoing facts and circumstances, the filing of the complaint/application by the respondent and its consideration by the Magistrate, resulting in the impugned order, cannot be faulted. Even if the WhatsApp chats and the email were not part of the complaint at the time of filing, their availability before this Court does not affect the merits of the application., The next question for this Court is whether the exercise of inherent powers is warranted. The law is settled by the Supreme Court of India in Neeharika Infrastructure Private Limited v. State of Maharashtra reported in 2021 SCC OnLine SC 315, holding that criminal proceedings are not to be scuttled at the initial stage and that quashment of a complaint or FIR should be an exception and a rarity, as the inherent power of the Court does not confer an arbitrary jurisdiction to act according to whims and caprice. Though the inherent power is very wide, its conferment requires the Court to be cautious and imposes an onerous and diligent duty on the Court., In view of the aforesaid position, principles of law and the facts of the case, the instant petition fails and is accordingly dismissed.
id_1288	0	The applicants have filed these petitions under section 482 of the Criminal Procedure Code seeking quashment of FIR No.139/2018 registered on a complaint made by respondent No.2 alleging commission of offences under sections 498-A, 323 and 34 of the Indian Penal Code at Police Station Mahila Thana, Indore. The petitioner in Miscellaneous Criminal Case No.16764/2019 has also sought quashment of the proceedings in Criminal Case No.878/2019. Daksh Mathur, the elder son of Applicant No.1, and Smt. Meera Mathur, the wife of Applicant No.1, are among the applicants. The complainant, a daughter of Respondent No.2, and Kartik Mathur, the younger son of Applicant No.1, were married following Hindu rites and rituals in Indore on 22 June 2017., Respondent No.2 lodged an FIR on 29 July 2018 at Police Station Mahila Thana, Indore, disclosing that at the time of marriage her parents spent Rs.50 to 60 lakh and also gave gold and silver ornaments to the applicants. Her husband Kartik Mathur and his parents demanded Rs.1,00,000 for the arrangement of an air‑conditioned bus, which her father gave. After the marriage the complainant went to her matrimonial house in Gurgaon and then to Shimla for a honeymoon, where the parents of Kartik Mathur, namely Rajan Mathur, Smt. Meera Mathur and Smt. Nandita Mathur (wife of Daksh Mathur), accompanied them and allegedly taunted her for the demand of Rs.10 lakh and a car. The complainant returned to Gurgaon, and on 30 July 2017 Kartik Mathur left for Australia, stating he was unhappy because her parents did not fulfil the demand. The complainant remained with her in‑laws for a few days, was beaten and thrown out of the house on 30 July 2017, and subsequently returned to Indore where she lodged the FIR on 29 July 2018, i.e., after one year., The aforesaid FIR was registered against her husband Kartik Mathur, father‑in‑law Rajan Mathur (Applicant No.1), mother‑in‑law Smt. Meera Mathur (Applicant), and the wife of Kartik’s brother (referred to as ‘Jethani’) Smt. Nandita Mathur (Applicant No.2) under sections 498-A, 323 and 34 of the Indian Penal Code., The police sent a notice under section 41A of the Criminal Procedure Code to the applicants for their appearance at the police station for investigation. Rajan Mathur sent a detailed e‑mail questioning the registration of the FIR at Indore when no offence was said to have been committed at Indore., By way of these Miscellaneous Criminal Cases the applicants are seeking quashment of the FIR and the criminal proceedings on the ground that none of the parties have ever resided in Indore; Indore was only the venue for the marriage. The applicants are permanent residents of Gurgaon and the parents of Respondent No.2 are residents of Navi Mumbai, Maharashtra. The selection of a police station at Indore for registration of the FIR under sections 498-A, 323 and 34 of the Indian Penal Code, where no offence is said to have been committed, is alleged to be an intention to harass the applicants. It is further submitted that Respondent No.2 left the matrimonial house of her own will and is now residing in Navi Mumbai and Australia. There is a delay of one year in lodging the FIR. Family settlement proceedings were initiated by Kartik Mathur in the Family Court in Victoria, Australia. Applicant No.1 Rajan Mathur is a retired Air Force Officer and Smt. Nandita is his daughter‑in‑law, married to Daksh Mathur, who is a Lieutenant Colonel in the Army. Applicant No.2 usually resides with her husband and was temporarily residing with her in‑laws as her husband is posted in the forward areas of Jammu and Kashmir. The allegation of demand of dowry of Rs.10 lakh and a car is denied as false and baseless., After notice, Respondent No.2 filed a detailed reply opposing the prayer for quashment of the FIR, reiterating the allegations made in the FIR. She submitted that the entire allegations in the FIR are a matter of evidence and therefore cannot be quashed at this stage by conducting a mini‑trial. She claimed to be a permanent resident of 35, Nanak Palace Colony, Pipliyarao, Indore, and stated that her husband Kartik has obtained an ex‑parte decree of divorce from the High Court in Australia. As the marriage was solemnised in India under the Hindu Marriage Act, she contended that the decree of divorce is illegal and not binding on her. She quoted various judgments of the High Courts and the Supreme Court in respect of the scope of section 482 of the Criminal Procedure Code., The applicant Smt. Meera Mathur, mother‑in‑law of Respondent No.2, also filed Miscellaneous Criminal Case No.16764/2019 seeking quashment of the FIR. In that petition Respondent No.2 filed a reply through her Power of Attorney holder, Sarvesh Mathur (her father), whose residential address is B‑503, Crystal Court, CHS, Sector 7, Kharghar, Navi Mumbai. After execution of the Power of Attorney dated 21 December 2018, Respondent No.2 travelled to Australia on 28 December 2018. She is presently residing in Australia and is contesting the case before the Session Court, Indore as Miscellaneous Criminal Case No.35596/2018 as well as before this High Court., According to Respondent No.2, the parents of Kartik demanded Rs.10 lakh and a car during her stay in the matrimonial house. Her father‑in‑law, mother‑in‑law and sister‑in‑law allegedly taunted her for the demand, and she was thrown out of the house on 30 July 2017 after being beaten. She subsequently came to Indore and stayed at her parents’ house. Her parents attempted to resolve the dispute, but the parents of Kartik remained adamant about the demand. She alleges physical and mental cruelty. However, there is no medical report or other corroborative evidence on record to establish the charge under section 498-A of the Indian Penal Code., There is a delay of one year in lodging the FIR for which no explanation has been provided. Jurisdictionally, only the marriage was solemnised at Indore; Respondent No.2 gave an address but there is no material to support that she or her father is an ordinary resident of Indore. Even if some connection with Indore exists, the FIR alleges that none of the offences were committed in Indore. The applicants are permanent residents of Gurgaon and the complainant’s parents are permanent residents of Navi Mumbai, Maharashtra. As per the contents of the FIR, the alleged demand of dowry and commission of atrocities pertained to the matrimonial house in Gurgaon, and nothing happened after leaving the matrimonial house on 30 July 2017 in Indore. Consequently, the FIR at Police Station Mahila Thana, Indore has been wrongly registered., With respect to the alleged offence under section 323 of the Indian Penal Code, only an oral allegation of assault is made and no medical report is on record. The one‑year delay in lodging the FIR remains unexplained. The allegation of demand of dowry of Rs.10 lakh and a car against the father‑in‑law, mother‑in‑law and ‘Jethani’ is general in nature., The purpose of insertion of section 498-A in the Penal Code, 1860 was to punish the husband or his relatives for dowry harassment, but the provision has been misused in many cases. The Supreme Court in Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273] observed that relatives are unnecessarily being made accused under section 498-A of the Indian Penal Code., The Supreme Court in Preeti Gupta v. State of Jharkhand [(2010) 7 SCC 667] observed that most complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberation, and that many such complaints are not bona fide and are filed with an oblique motive. Paragraph 32 of that judgment states that a large number of complaints are not genuine and that rapid increase in genuine dowry harassment cases is also a serious concern. Paragraph 33 emphasizes the social responsibility of members of the Bar to prevent exaggerated complaints and to help parties reach amicable resolution. Paragraph 34 notes that complainants often do not visualise the consequences of filing such complaints, which can lead to harassment of the accused and his close relations. Paragraph 35 stresses that the ultimate object of justice is to find the truth, punish the guilty and protect the innocent, and that courts must be careful in dealing with matrimonial cases. Paragraph 36 observes that long and protracted criminal trials lead to rancour and bitterness in relationships, and that even a short custodial sentence for the husband or his relations can ruin chances of amicable settlement., The Courts have observed that on general and omnibus allegations, family members and distant relatives are being roped into cases arising under section 498-A of the Penal Code, 1860, as considered by the Supreme Court in Geeta Mehrotra v. State of Uttar Pradesh [(2012) 10 SCC 741] and further deprecated in K. Subba Rao v. State of Telangana [(2018) 14 SCC 452]. Taking guidance from these cases where there is apparent misuse of section 498-A of the Penal Code, the High Court should exercise the power conferred under section 482 of the Criminal Procedure Code to protect the relatives of the husband in matrimonial disputes and to prevent misuse of the process of law., Shri Jerry Lopez, learned counsel appearing for Respondent No.2, argued that although the FIR may not contain all details, the statement under section 161 of the Criminal Procedure Code or evidence in the court would contain details about the demand of dowry or atrocities committed. He further submitted that the e‑mail exchange and chat conversations regarding the demand of dowry also constitute mental cruelty. He contended that the scope of interference by the High Court at this stage is impermissible., In Miscellaneous Criminal Case No.35596/2018, the applicants filed application I.A. No.14725/2022 seeking direction to Respondent No.1 to procure an e‑mail verification report. During the pendency of these petitions, a charge‑sheet was filed on 5 March 2019. On 23 September 2021, the Government Advocate appearing for Respondent No.1 informed this High Court that the details of e‑mails have been verified, but the e‑mails exchanged between the parties could not be procured as they are restricted by Gugal. The DIG, Indore, vide letter dated 18 January 2019, directed investigation, but the said report has not been produced. Consequently, the applicants filed an application for production of the investigation report and e‑mail verification report., This High Court, vide order dated 21 October 2021, directed the parties to settle the dispute by way of mediation, appointing Smt. Rashmi Pandit as Mediator. The Mediator submitted a report on 19 January 2022, indicating that the parties were not ready to compromise the matter., At present, the husband and wife have settled in Australia. The parents of the husband are being harassed by way of the criminal case in India. Applicant No.1 Rajan Mathur is about 67 years old and his wife is also a senior citizen. General allegations have been levelled against ‘Jethani’, causing her unnecessary involvement in the FIR. According to the FIR, the husband of Respondent No.2 was not even in India at the time of the alleged offence. Respondent No.2 has given Power of Attorney to her father to contest the case against these applicants. This is now a case of reverse cruelty upon them. No specific allegation exists that when her husband left India for Australia there was any demand for dowry., In view of the foregoing discussion, these Miscellaneous Criminal Cases are allowed. The impugned FIR is hereby quashed and consequently the charge‑sheet as well as the proceedings in the criminal case are also quashed. A photocopy of this order shall be retained in the file of the connected Miscellaneous Criminal Case.
id_1289	0	Transfer Appeal (C) No.1 of 2023 P. G. Ajithkumar, Judge. The petitioner in unnumbered Transfer Petition (C) No.25 of 2023 has filed this appeal invoking the provisions of Section 5(i) of the Kerala High Court Act, 1958., When this appeal was filed, the Registry raised an objection regarding its maintainability. As per the order dated 07 February 2023, the Registry was directed to number the Transfer Appeal subject to the decision regarding maintainability on the judicial side., On 10 February 2023, notice was directed to be served on the respondent and an order of interim stay was granted for a period of one month. The interim order has been extended from time to time., On 20 March 2023, the matter was referred for mediation with a direction that the mediator who mediated the matter on an earlier occasion should conduct mediation. The mediation, however, did not fetch any positive result., The learned counsel appearing for the appellant and the learned counsel appearing for the respondent were heard., The appellant wants M.C. No. 20 of 2020 pending on the files of the court of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam to be transferred to the Family Court, Ernakulam. The application was filed invoking the jurisdiction of the Kerala High Court under Section 24 of the Code of Civil Procedure, 1908., A proceeding initiated under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (for short D.V. Act) is of a civil nature. But, in view of Section 28 of the said Act, such an application is governed by the provisions of the Code of Criminal Procedure, 1973. The Magistrate dealing with the application is empowered under sub‑section (2) of Section 28 for laying down its own procedure also. The forum constituted to deal with an application under Section 12 of the D.V. Act as per Section 27 is the court of a Judicial Magistrate of the First Class or, as the case may be, a Metropolitan Magistrate. Therefore, the proceedings in an application filed under Section 12 of the D.V. Act have to be regulated as per the provisions in the Code of Criminal Procedure, subject, of course, to the procedure being evolved by the Magistrate concerned to suit the particular facts and circumstances of the case., If so, a petition filed before the Kerala High Court for transfer of an application under Section 12 of the D.V. Act can be governed by the provisions under Section 407 of the Code of Criminal Procedure. But, Section 407 can be invoked only when the transfer is from the court of one Magistrate to another Magistrate. Similar is the position if Section 24 of the Code of Civil Procedure is invoked. Section 24 shall be applied if the transfer is sought from one civil court to another civil court., When the transfer is sought from the court of a Magistrate to a Family Court, neither Section 407 of the Code of Criminal Procedure nor Section 24 of the Code of Civil Procedure can be invoked. However, the Kerala High Court can certainly exercise its jurisdiction under Article 227 of the Constitution of India if a transfer is required from a civil court to a criminal court and vice versa in the interest of justice, and if such a transfer is not prohibited under the provisions of law. Hence, we hold that the Transfer Petition although could not have been entertained under Section 24 of the Code of Civil Procedure, it should have been considered on the judicial side under Article 227 of the Constitution of India. In that view of the matter, the Transfer Petition as well as the Transfer Appeal is maintainable., In the impugned order the plea of the appellant was found not entertainable in the light of the law laid down by this Court in Anish Antony Thimothy and others v. Neetha and another [2011 (3) Kerala High Court 46] and Rajeev Thomas and others v. Sheeja Antony and others [2018 (4) Kerala High Court 8]. In the said decisions, this Court took the view that a case under the D.V. Act pending before a Magistrate is not liable to be transferred to the Family Court. The learned counsel appearing for the appellant, by placing reliance on a decision of the Bombay High Court, took exception to the said view and advanced a contention that in the light of the provisions of Section 26 of the D.V. Act, a petition filed under the said Act before a Judicial Magistrate of the First Class can be transferred to a Family Court for being tried along with the litigations between the same parties pending before the Family Court., Section 26 of the Protection of Women from Domestic Violence Act reads as follows: 26. Relief in other suits and legal proceedings. (1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding before a Civil Court, Family Court or a Criminal Court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act. (2) Any relief referred to in sub‑section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a Civil or Criminal Court. (3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief., The Bombay High Court in its order dated 15 November 2021 in Anirudh Ajaykumar Garg v. State of Maharashtra (M.C.A. No. 76 of 2021) took the view that a case initiated under the D.V. Act and pending before a Magistrate can be transferred to a Family Court, where litigation between the same spouses in relation to their matrimonial dispute is pending. The essential reason for taking such a view is that a proceeding under the D.V. Act is of a civil nature and hence both proceedings where the same issues are at trial are to be considered by the same court. It was also held that the Family Court, having been empowered under Section 26 of the D.V. Act to grant reliefs which are grantable under the provisions of the D.V. Act, a proceeding initiated under the said Act could be transferred from the court of a Magistrate to a Family Court., The learned counsel appearing for the appellant would, therefore, submit that proceedings under the D.V. Act are civil in nature and therefore the fact that a judicial Magistrate is constituted as a forum under the D.V. Act does not stand in the way of transferring a pending case under the D.V. Act to the Family Court. This Court, after referring to the law laid down by the Supreme Court of India in Indira Sarma v. V. K. V. Sarma [(2013) 15 Supreme Court Cases 755] and Kunapareddy @ Nookala Shanka Balaji v. Kunapareddy Swarna Kumari and another [(2015) 11 Supreme Court Cases 774] and also by this Court in Dr. V. K. Vijayalekshmi Amma and another v. Bindu and others [2010 (1) Kerala High Court 57] and Saramma Shyju v. Shyju Varghees and others [2011 (3) Kerala High Court 235] held in Neethu v. Trijo Joseph [2022 (4) Kerala High Court 384] that the proceedings under the D.V. Act are of civil nature, although the forum prescribed to secure the reliefs under the Act is a criminal court. Can, for that reason, a proceeding under the D.V. Act be transferred to a Family Court?, This Court considered the said question in a few decisions, namely, Anish Antony Thimothy [2011 (3) Kerala High Court 46], Mony M. A. v. Leelamma M. P. and another [2007 (2) Kerala Law Journal 209] and Rajeev Thomas [2018 (4) Kerala High Court 8]., In Anish Antony Thimothy [2011 (3) Kerala High Court 46], this Court held, True that by virtue of the power conferred under Section 26 of the Act apart from the 'Magistrate' above referred, a civil court or Family Court or criminal court is also empowered to grant relief under Sections 18, 19, 20, 21 and 22 of the Act. That provision is not intended to equate the Magistrate exercising power under the Act with a Family Court or civil court empowered to grant certain reliefs as provided in the Act. The mere fact that power to grant certain reliefs is conferred on other courts also does not mean that the proceeding pending before the Magistrate could be transferred to those courts. I must also bear in mind that from the decision of the Family Court in exercise of power under Section 26 of the Act, there could be no appeal to the Court of Sessions under Section 29 of the Act. Thus, 'Magistrate' as defined in Section 2(i) of the Act and other courts which are also empowered to grant certain reliefs under the Act are different and it is not as if the case pending in one court could be transferred to the other, exercising power by virtue of Section 26 of the Act. Section 7(2) of the Family Courts Act only empowered the Family Court to exercise the power conferred on a Magistrate under Chapter IX of the Code of Criminal Procedure, 1973 in relation to grant of maintenance of wife, children, etc. Learned counsel made reference to Sub‑clause (b) of Subsection (2) of Section 7. Assuming that jurisdiction conferred on Family Court by other enactments also could be exercised by that Court, it is not as if the Magistrate exercising power under the Act and the Family Court or other court referred to in Section 26 of the Act empowered to grant certain reliefs are in the same position so that a case pending in one court could be transferred to the other court. So the request made by the petitioner cannot be entertained., This Court in Mony M. A. [2007 (2) Kerala Law Journal 209] held as follows: The learned counsel submits that in view of the stipulations in Section 26(1), there cannot be a bar against transfer of a claim under Section 12 to any such civil court or family court. The counsel further submits that Section 7(2)(b) of the Family Courts Act, which I extract below, is also sufficient to indicate that the Family Court has jurisdiction to deal with a claim under Section 12. Section 7. Jurisdiction – (1) Subject to the other provisions of this Act, a Family Court shall – ... 2. Subject to the other provisions of the Act, a Family Court shall also have and exercise – (a) ... (b) such other jurisdiction as may be conferred on it by any other enactment. I am unable to accept this argument at all. Though under Section 7(2)(b), the Family Court is clothed with authority to deal with matters which, under any other law the Family Court can consider, it is significant that the Family Court is not invested with any power to deal with an application under Section 12 of the D.V. Act. That reliefs under Sections 18 to 22 can be claimed before the Family Court in any other proceedings is a world different from the contention that a petition under Section 12 can be considered and disposed of by the Family Court. There is nothing in the language, scheme or purport of the D.V. Act which can even remotely suggest that a Civil court or Family Court is competent to deal with an application under Section 12 and grant reliefs under Sections 18 to 22 in such application under Section 12. Of course, the Family Court and the Civil Court have jurisdiction in a proceeding pending before them to grant the reliefs under Sections 18 to 22 of the D.V. Act also. But certainly there is no power for the Family Court or Civil Court to deal with an application under Section 12. They cannot entertain an application under Section 12 either when it is originally filed before them nor can the superior courts entertain any jurisdiction to transfer such petition under Section 12 pending before the Magistrate to such Civil or Family Court so that such court can entertain jurisdiction to deal with an application under Section 12. The decision of the Legislature to confer the right to redressal through the criminal court cannot obviously be denied to or taken away from an aggrieved woman by such an order of transfer by the superior court. That she can claim the reliefs under the D.V. Act through the civil court also is no reason to deprive her of the vested statutory right of procedure to claim enforcement through the Criminal Court. I, therefore, take the view that except the Magistrate clothed with authority to deal with petitions under Section 12 of the D.V. Act, no Civil Court or Family Court has jurisdiction to deal with an application under Section 12. Consequently this Court cannot direct transfer of a petition under Section 12 pending before the Magistrate to the Family Court and thus clothe the Family Court with jurisdiction to consider such application under Section 12. The prayer for transfer cannot hence succeed., In Rajeev Thomas [2018 (4) Kerala High Court 8], this Court held thus: These decisions clearly show that the correct interpretation of Section 26 of the D.V. Act is that, though an application under Section 12 can be considered only by a Magistrate and cannot be considered by a Family Court or Civil Court or any other Court, the reliefs that can be granted under Sections 18 to 22 can also be granted by other courts while dealing with the pending disputes. There is a sea of difference between holding that both courts have concurrent jurisdiction and that one Court can grant the reliefs which can be granted by another court. What is clarified by Section 26 is that the reliefs under Sections 18 to 22 can be granted by other civil courts. Section 26(3) of the D.V. Act clarifies that, if a relief under Sections 18 to 22 is granted by another court, it shall be reported to the jurisdictional Magistrate, which clearly and categorically clarifies that both the jurisdictions conferred on other courts are not concurrent. In the light of the clear distinction of jurisdictions, there cannot be a transfer of the case pending before the Magistrate court under Section 12 of the D.V. Act to a Family Court. Further, the procedures to be followed in adjudication, the enforcement of orders and the provisions for appeal are different in both courts. Hence, reliefs sought by the petitioners herein cannot be granted., The preamble of the Protection of Women from Domestic Violence Act exemplifies that it is an Act enacted to provide for more effective protection of the rights of women guaranteed under the Constitution of India who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. A victim of violence of any kind occurring within the family is an aggrieved person. An aggrieved person as defined in Section 2(a) of the Act is any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. Domestic relationship is defined in Section 2(f) of the Act as a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Respondent is defined in Section 2(q) as follows: 'respondent' means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act, provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner. From the above definitions, it is possible for a woman alone to seek reliefs under the D.V. Act. Further, a female living in a relationship in the nature of a marriage is also eligible to seek reliefs under the D.V. Act., The scheme of the D.V. Act is such that an aggrieved person is ensured more effective protection through the forum of a criminal court. The D.V. Act was enacted much after the Family Courts Act, 1984 came into force. The Legislature, fully conscious of the provisions of the Family Courts Act, had enacted the D.V. Act in 2005 creating a special forum by investing powers on Judicial Magistrates to deal with the applications under Section 12 and also creating a Court of Session as the appellate forum under Section 29. The intention of the Legislature to confine the jurisdiction to entertain an application under Section 12 of the D.V. Act to the Judicial Magistrates is clear from provisions in the Act. As long as the Family Court or, for that matter, other civil courts cannot have original jurisdiction to entertain an application under Section 12 of the D.V. Act, no application under Section 12 pending before a Magistrate can be transferred to a Family Court., As stated above, women alone can claim reliefs provided under Sections 12 to 18, be it by filing an application under Section 12 or by applying in pending proceedings by invoking Section 26 of the D.V. Act. When women alone are given that right, allowing a respondent in an application under Section 12 of the Act to get the application transferred to a Family Court or other civil court will amount to denial of the special right conferred upon the aggrieved women. Often that will result in facilitating the respondent to pin down the aggrieved woman to a forum which may be totally inconvenient to her., What is clarified in Rajeev Thomas [2018 (4) Kerala High Court 8] is that there is a sea of difference between holding that both courts have concurrent jurisdiction and that one court can grant the reliefs which can be granted by another court. What is provided by Section 26 is that the reliefs under Sections 18 to 22 can be granted by the Family Court and other civil courts. Section 26(3) of the D.V. Act explains that, if a relief under Sections 18 to 22 is granted by another court, it shall be reported to the jurisdictional Magistrate, which clearly and categorically clarifies that the jurisdictions conferred on different courts are not concurrent. We are quite in agreement with that proposition of law., It may be noted that going by the definition of the respondent in Section 2(q) of the Act, a female living in a relationship in the nature of a marriage, in other words, a living‑in‑relationship, may also file an application under Section 12 of the D.V. Act. If it is held that an application under Section 12 of the D.V. Act is liable to be transferred to a Family Court, that will result in an indiscriminate classification inasmuch as a Family Court is empowered to entertain disputes between the parties to a marriage only. That also is a reason to hold that an application under Section 12 of the D.V. Act cannot be transferred to a Family Court., Viewed so, we are in agreement with the findings of this Court in Anish Antony Thimothy [2011 (3) Kerala High Court 46], Mony M. A. [2007 (2) Kerala Law Journal 209] and Rajeev Thomas [2018 (4) Kerala High Court 8]. The said view expounds the correct proposition of law. The view taken by the Bombay High Court in Anirudh Ajaykumar Garg v. State of Maharashtra (M.C.A. No. 76 of 2021) cannot, therefore, be accepted as the correct principle., Accordingly, we hold that a proceeding initiated under the D.V. Act before a Judicial Magistrate of the First Class cannot be transferred to a Family Court. It follows that the plea of the appellant in unnumbered Transfer Petition (C) No.25 of 2023 fails. Therefore, this appeal is liable to be dismissed.
id_129	0	Ashvini Narwade, ABC Petitioners versus Union of India through its Ministry of Health and Family Welfare, Department of Health Research; State of Maharashtra through the Public Health Department; National Assisted Reproductive Technology and Surrogacy Board, through the Department of Health Research; State Assisted Reproductive Technology and Surrogacy Board, through the Public Health Department; and the Appropriate Authority, Assistant Health Officer, Health Department of Pune. Respondents., Counsel for the Petitioners: Mr. Tejesh Dande with Mr. Vishal Navale, Mr. Bharat Gadhavi, Ms. Trusha Shah, Mr. Vikrant Khare, Mr. Pratik Sabrad, Mr. Chinmay Deshpande, Mr. Sarvesh Deshpande and Ms. Janaki Patil, i/b. Tejesh Dande & Associates. Counsel for Respondent No.1 (Union of India): Mr. Y. R. Mishra with Ms. Anusha P. Amin. Counsel for Respondent No.2 (State of Maharashtra): Mrs. Jyoti Chavan, Additional Government Pleader, for the State in Writ Petition No. 22674 of 2023. Mr. Rishikesh M. Pethe for Respondents in WPL/22674/2023., Date: 9 February 2024. Judgment (Per Justice G. S. Kulkarni): Writ Petition No. 10108 of 2023. Rule: Returnable forthwith. Respondents waive service. By consent of the parties, heard finally., The Petitioners, a husband and wife, were married on 29 April 2013. They contend that they could not achieve parenthood due to serious medical issues suffered by the wife. Between 2011 and 2023, the wife underwent multiple surgeries. Because of genetic abnormalities, they were advised that it would not be possible for the wife to bear a child naturally, and the only option was surrogacy., When the Petitioners intended to resort to surrogacy under the Surrogacy (Regulation) Act, 2021 and the Rules framed thereunder, they were confronted with the notification dated 14 March 2023 issued by the Government of India, Ministry of Health and Family Welfare. By that notification, issued under Section 50 of the Surrogacy Act, the Central Government amended the Surrogacy (Regulation) Rules, 2022. Form‑2 under Rule 7 was amended, substituting paragraph 1(d) with new stipulations. The amended rules read: (i) Couple undergoing surrogacy must have both gametes from the intending couple and donor gametes are not allowed; (ii) Single woman (widow or divorcee) undergoing surrogacy must use self‑eggs and donor sperm., The petitioners are aggrieved by the prohibition of donor gametes, contending that the condition is illegal and contrary to the Surrogacy Act. They argue that it defeats the purpose of surrogacy, especially when the couple cannot use their own gametes due to medical reasons. They assert that the condition is arbitrary, illogical, and violative of Articles 14 and 21 of the Constitution of India., Counsel for the petitioner submitted medical evidence that the wife suffers from Von Hippel‑Lindau syndrome, a genetic disorder with a high risk of transmission to the fetus. Experts have advised that using the wife’s oocytes would likely pass the defect to the child, and that women over 35 are generally not recommended to use their own oocytes. The petitioners rely on the interim order dated 18 October 2023 of the Supreme Court of India, which observed that the amendment dated 14 March 2023 was prima facie contrary to the intent of the Surrogacy Act and stayed paragraph 1(d) of Form‑2 for the petitioners., On behalf of the petitioner, it is submitted that, in view of the Supreme Court’s observations, the petitioners should be granted protection from the condition in paragraph 1(d) of Form‑2, allowing them to proceed with surrogacy., The learned Single Judge of the Karnataka High Court, in Smt. XXX v. Union of India & Anr., partly allowed similar writ petitions, holding that the petitioners were entitled to opt for surrogacy on the terms directed by the Supreme Court in the Arun Muthuvel case., It is submitted that, considering the wife’s medical condition as reflected in the medical reports, applying the impugned notification would deny the petitioners their legal right to achieve parenthood. Accordingly, reliefs are sought, keeping the challenge to the impugned rules open before the Supreme Court., Respondent No.1 filed a reply affidavit justifying the legality of the impugned rules, but its contents are contrary to the Supreme Court’s observations in Arun Muthuvel., The petitioner’s wife has been diagnosed with Von Hippel‑Lindau syndrome. Several family members, including her mother and younger brother, have lost vision in the left eye. She has undergone multiple surgeries for complications of the illness. The condition carries a high probability of being transmitted to the fetus, and IVF experts have advised that using her oocytes would lead to genetic defects. Moreover, women above 35 years are generally not recommended to use their own oocytes. Hence, the petitioners have no alternative but to opt for surrogacy., In these circumstances, it is imperative for the petitioners to proceed with surrogacy, but they cannot be compelled to comply with Rule 1(d)(I) of the notification dated 14 March 2023. The situation falls within the parameters considered by the Supreme Court in Arun Muthuvel, where the Court stayed the impugned conditions in Form‑2., Reproductive health is a facet of personal liberty under Article 21 of the Constitution of India. The Surrogacy Act regulates surrogacy clinics and procedures, including consent of the surrogate mother, prohibition of abandonment, rights of the surrogate child, limits on embryos, and prohibition of abortion. The Surrogacy (Regulation) Rules, 2022, particularly Rule 7, prescribe the consent form (Form‑2). The amendment dated 14 March 2023 introduced the prohibitions on donor gametes., Rule 14 of the 2022 Rules provides for medical indications necessitating gestational surrogacy, including absence or abnormality of the uterus, repeated IVF failure, multiple pregnancy losses, or any illness that makes pregnancy impossible or life‑threatening., The present proceedings consider whether the petitioners can be subjected to paragraph 1(d)(I) of the impugned rules, given the Supreme Court’s observations in Arun Muthuvel that the amendment impedes surrogacy for couples with such medical conditions., The Supreme Court observed that Rule 14 is woman‑centric, addressing medical conditions of the wife, and that when a woman cannot produce oocytes, donor oocytes are necessarily required. Therefore, the amendment prohibiting donor gametes is contrary to the purpose of Rule 14 and must be stayed for the petitioners., The Karnataka High Court noted a communication from the Ministry of Health and Family Welfare dated 5 October 2023, stating that any willing woman can act as surrogate mother and it is not mandatory for the surrogate mother to be genetically related to the intending couple or intending woman., The Supreme Court, in a subsequent order dated 5 February 2025, observed that petitioners may approach the jurisdictional High Courts for relief, consistent with the interim orders., In view of the foregoing, if protection is not granted, the petitioners’ legal right to achieve parenthood through surrogacy will be prejudiced. Accordingly, the impugned notification dated 14 March 2023 shall not apply to the petitioners; they may opt for surrogacy subject to compliance with the 2021 Act and Rules, except the said notification. The challenge to the notification remains open before the Supreme Court. The order is applicable only to the petitioners. No costs., Date: 9 February 2024. Judgment (Per Justice G. S. Kulkarni): Writ Petition (L) No. 22674 of 2023. Rule: Returnable forthwith. Respondents waive service. By consent of the parties, heard finally., The petitioners in this petition are similarly placed as in the earlier petition, and the Court permits them to proceed with surrogacy without being subjected to the impugned rules of 14 March 2023. The wife could not conceive due to multiple medical complications, and previous attempts at IUI and IVF failed, including a stillbirth and a neonatal death. Experts advised against using her own eggs., The Court orders that the impugned notification dated 14 March 2023 shall not be applied to the petitioners; they may opt for surrogacy subject to other conditions of the 2021 Act and Rules. The challenge to the notification remains open before the Supreme Court. The order applies only to the petitioners. No costs.
id_1293	0	We have perused the draft judgments prepared by our esteemed brothers Ajay Rastogi, Judge and Hrishikesh Roy, Judge. With profound respect to our learned Brothers, we are unable to, however, concur with them in their reasoning and conclusions save as will be made clear. Hence, the following judgment., A Bench of three learned Judges disposed of Civil Appeal Nos. 3802‑3803 of 2020 by Judgment dated 11.01.2021. The Judgment is reported in N.N. Global Mercantile Private Limited v. Indo Unique Flame Limited and others. What is of relevance for the purpose of the Reference is the following:, We are of the considered view that the finding in SMS Tea Estates [SMS Tea Estates (P) Ltd. v. Chandmari Tea Co. (P) Ltd., (2011) 14 Supreme Court Cases (SCC) 66 : (2012) 4 SCC (Civil) 777] and Garware [Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engineering Ltd., (2019) 9 SCC 209 : (2019) 4 SCC (Civil) 324] that the non‑payment of stamp duty on the commercial contract would invalidate even the arbitration agreement, and render it non‑existent in law, and unenforceable, is not the correct position in law., In view of the finding in paragraphs 146 and 147 of the judgment in Vidya Drolia [Vidya Drolia v. Durga Trading Corporation, (2021) 2 SCC 1 : (2021) 1 SCC (Civil) 549] by a coordinate Bench, which has affirmed the judgment in Garware, the aforesaid issue is required to be authoritatively settled by a Constitution Bench of the Supreme Court of India., We consider it appropriate to refer the following issue, to be authoritatively settled by a Constitution Bench of five Judges of the Supreme Court of India: Whether the statutory bar contained in Section 35 of the Stamp Act, 1899 applicable to instruments chargeable to stamp duty under Section 3 read with the Schedule to the Arbitration and Conciliation Act, 1996, would also render the arbitration agreement contained in such an instrument, which is not chargeable to payment of stamp duty, as being non‑existent, unenforceable, or invalid, pending payment of stamp duty on the substantive contract/instrument?, The first respondent, who was awarded the Work Order, entered into a sub‑contract with the appellant. Clause 10 of the Work Order, constituting the sub‑contract, provided for an Arbitration Clause. The appellant had furnished a bank guarantee in terms of Clause 9. The invocation of the said guarantee led to a suit by the appellant against the encashment of the bank guarantee. The first respondent applied under Section 8 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the Act) seeking reference. A writ petition was filed by the first respondent challenging the order of the Commercial Court rejecting the application under Section 8 of the Act. One of the contentions raised was that the arbitration agreement became unenforceable as the Work Order was unstamped. The High Court, however, allowed the writ petition filed by the first respondent. The issue relevant to this Bench was whether the arbitration agreement would be enforceable and acted upon, even if the Work Order is unstamped and unenforceable under the Indian Stamp Act, 1899 (hereinafter referred to as the Stamp Act)., The Supreme Court of India found that an arbitration agreement is a distinct and separate agreement, which is independent from the substantive commercial contract in which it is embedded. Under the doctrine of Kompetenz‑Kompetenz, the arbitral tribunal had competence to rule on its own jurisdiction, including objections with regard to the existence, validity and scope of the arbitration agreement. Section 16(1) of the Act was relied upon. The Supreme Court of India made a copious reference to case law in support of the doctrine of Kompetenz‑Kompetenz. Section 5 of the Act contemplated minimal judicial interference. The Supreme Court of India referred to the Maharashtra Stamp Act, 1958. Section 34 of the said Act is pari materia with Section 35 of the Stamp Act, 1899. There are other provisions which follow the same pattern as the latter Act. The Supreme Court of India thereafter referred to Item 63 of Schedule I of the Maharashtra Stamp Act, 1958, which dealt with works contract. It was found that the Stamp Act is a fiscal measure. The Supreme Court of India then discussed the judgment reported in SMS Tea Estates Private Limited v. Chandmari Tea Company Private Limited and quoted the following part of that judgment:, 19. Having regard to Section 35 of the Stamp Act, unless the stamp duty and penalty due in respect of the instrument is paid, the Supreme Court of India cannot act upon the instrument, which means that it cannot act upon the arbitration agreement also which is part of the instrument. Section 35 of the Stamp Act is distinct and different from Section 49 of the Registration Act in regard to an unregistered document. Section 35 of the Stamp Act does not contain a proviso like Section 49 of the Registration Act enabling the instrument to be used to establish a collateral transaction., 21. Therefore, when a lease deed or any other instrument is relied upon as contending the arbitration agreement, the Supreme Court of India should consider at the outset whether an objection in that behalf is raised, and whether the document is properly stamped. If it concludes that it is not properly stamped, it should be impounded and dealt with in the manner specified in Section 38 of the Stamp Act. The Supreme Court of India cannot act upon such a document or the arbitration clause therein. But if the deficiency of duty and penalty is paid in the manner set out in Section 35 or Section 40 of the Stamp Act, the document can be acted upon or admitted in evidence., The Supreme Court of India further found that, at the time SMS Tea Estates was decided, the law relating to reference to arbitration under Section 11 of the Act was expounded in the Constitution Bench decision reported in SBP & Co. v. Patel Engineering Ltd. and another, among other cases. It was further found that the law laid down was that in an application under Section 11(6) of the Act, the Supreme Court of India may determine certain threshold issues, such as whether the claim was time‑barred, or a stale claim; whether there was accord and satisfaction, which would preclude the need for reference to arbitration. The Supreme Court of India then referred to the amendment to Section 11 by the insertion of Sub‑Section (6A). It referred to the judgment in Duro Felguera, S.A. v. Gangavaram Port Limited to conclude that the only question was whether an arbitration agreement existed. The Supreme Court of India noted that the said position was affirmed by a bench of three learned judges in Mayavati Trading Private Limited v. Pradyut Deb Burman. Further, the Supreme Court of India noticed the judgment rendered by a bench of two learned judges in Garware Wall Ropes Limited v. Coastal Marine Constructions & Engineering Limited and referred to paragraph 22 of that decision where it relied on Section 2(h) of the Indian Contract Act, 1872 and found that an unstamped agreement is unenforceable., In Garware, the bench of two learned judges took the view that the arbitration clause contained in the sub‑contract would not exist as a matter of law until the sub‑contract was duly stamped. It was further found that Section 11(6A) deals with existence as opposed to Section 8, and Section 45 of the Arbitration and Conciliation Act, 1996. The bench of three learned judges in its judgment in N.N. Global, containing the order of reference to the Constitution Bench, found that an arbitration agreement is not included in the Schedule as an instrument chargeable to stamp duty. The Supreme Court of India referred to Item 12 of Schedule I of the Maharashtra Stamp Act, 1958, in this regard. Thereafter, the Supreme Court of India found that the Work Order was chargeable to payment of stamp duty. However, it found that the non‑payment or deficiency on the Work Order did not invalidate the main contract. Section 34 of the Maharashtra Act, corresponding to Section 35 of the Stamp Act, did not make the unstamped instrument invalid, non‑existent or unenforceable in law. The Supreme Court of India found that the arbitration agreement was a distinct and independent contract. On the doctrine of separability, it would not be rendered invalid, unenforceable or non‑existent, even if the substantive contract in which it is contained was inadmissible in evidence or could not be acted upon because it was not stamped. The bench in N.N. Global held as follows:, 26. In our view, there is no legal impediment to the enforceability of the arbitration agreement, pending payment of stamp duty on the substantive contract. The adjudication of the rights and obligations under the work order or the substantive commercial contract would, however, not proceed before complying with the mandatory provisions of the Stamp Act., 27. The Stamp Act is a fiscal enactment for payment of stamp duty to the State on certain classes of instruments specified in the Stamp Act. Section 40 of the Stamp Act, 1899 provides the procedure for instruments which have been impounded, and sub‑section (1) of Section 42 requires the instrument to be endorsed after it is duly stamped by the Collector concerned. Section 42(2) provides that after the document is duly stamped, it shall be admissible in evidence, and may be acted upon., 28. In our view, the decision in SMS Tea Estates does not lay down the correct position in law on two issues: (i) that an arbitration agreement in an unstamped commercial contract cannot be acted upon, or is rendered unenforceable in law; and (ii) that an arbitration agreement would be invalid where the contract or instrument is voidable at the option of a party, such as under Section 19 of the Indian Contract Act, 1872., 29. We hold that since the arbitration agreement is an independent agreement between the parties, and is not chargeable to payment of stamp duty, the non‑payment of stamp duty on the commercial contract would not invalidate the arbitration clause, or render it unenforceable, since it has an independent existence of its own. The view taken by the Supreme Court of India on the issue of separability of the arbitration clause on the registration of the substantive contract ought to have been followed even with respect to the Stamp Act. The non‑payment of stamp duty on the substantive contract would not invalidate even the main contract. It is a deficiency which is curable on the payment of the requisite stamp duty., 30. The second issue in SMS Tea Estates that a voidable contract would not be arbitrable as it affects the validity of the arbitration agreement is, in our view, not the correct position in law. The allegations that the substantive contract has been obtained by coercion, fraud, or misrepresentation must be proved by leading evidence. These issues can certainly be adjudicated through arbitration., 31. We overrule the judgment in SMS Tea Estates with respect to the aforesaid two issues as not laying down the correct position in law., We may also notice paragraph 32 in N.N. Global: Garware judgment has followed the judgment in SMS Tea Estates. The counsel for the appellant placed reliance on paragraph 22 of that judgment to contend that the arbitration clause would be non‑existent in law, and unenforceable, till stamp duty is adjudicated and paid on the substantive contract. We hold that this finding is erroneous and does not lay down the correct position in law. We have already held that an arbitration agreement is distinct and independent from the underlying substantive commercial contract. Once the arbitration agreement is held to have an independent existence, it can be acted upon, irrespective of the alleged invalidity of the commercial contract., Thereafter, the bench of three learned judges in N.N. Global noted that the judgment in Garware was cited with approval by a bench of three learned judges in Vidya Drolia and others v. Durga Trading Corporation. The Supreme Court of India set out paragraphs 146 and 147 of Vidya Drolia and doubted the correctness of the said view and found it appropriate to refer the findings in paragraphs 22 and 29 of Garware, as affirmed in paragraphs 146 and 147 of Vidya Drolia, to the Constitution Bench. We deem it appropriate to now refer to the following paragraphs in N.N. Global:, 35. The next issue which arises is as to which authority would exercise the power of impounding the instrument under Section 33 read with Section 34 of the Maharashtra Stamp Act, in a case where the substantive contract contains an arbitration agreement., 36. In an arbitration agreement, the disputes may be referred to arbitration by three modes., 36.1. The first mode is where the appointment of the arbitrator takes place by the parties consensually in accordance with the terms of the arbitration agreement, or by a designated arbitral institution, without the intervention of the court. In such a case, the arbitrator/tribunal is obligated by Section 33 of the Stamp Act, 1899 (or the applicable State Act) to impound the instrument, and direct the parties to pay the requisite stamp duty (and penalty, if any), and obtain an endorsement from the Collector concerned. This is evident from the provisions of Section 34 of the Stamp Act which provides that any person having by law or consent of parties authority to receive evidence is mandated by law to impound the instrument and direct the parties to pay the requisite stamp duty., 36.2. The second mode of appointment is where the parties fail to make the appointment in accordance with the arbitration agreement, and an application is filed under Section 11 before the Supreme Court of India to invoke the default power for making the appointment. In such a case, the High Court, or the Supreme Court of India, as the case may be, while exercising jurisdiction under Section 11, would impound the substantive contract which is either unstamped or inadequately stamped, and direct the parties to cure the defect before the arbitrator/tribunal can adjudicate upon the contract., 36.3. The third mode is when an application is filed under Section 8 before a judicial authority for reference of disputes to arbitration, since the subject‑matter of the contract is covered by an arbitration agreement. In such a case, the judicial authority will make the reference to arbitration. However, in the meanwhile, the parties would be directed to have the substantive contract stamped in accordance with the provisions of the relevant Stamp Act, so that the rights and obligations emanating from the substantive contract can be adjudicated upon., Shri Gagan Sanghi, learned counsel, appeared on behalf of the appellant (M/s N.N. Global Mercantile Private Limited). Initially, since there was no appearance for the first respondent, we appointed Shri Gourab Banerji, learned senior counsel as amicus curiae. We also heard Ms. Malavika Trivedi, learned senior counsel, appearing by way of intervention. Shri K. Ramakanth Reddy, learned senior counsel, appeared thereafter for the first respondent and made his submissions., Shri Gagan Sanghi took us through the provisions of the Stamp Act and the Arbitration and Conciliation Act, 1996 and contended that Section 35 of the Stamp Act barred admission of a not duly stamped instrument in evidence for any purpose in the Supreme Court of India. Furthermore, the Supreme Court of India could not act upon such an instrument, not even for a collateral purpose. There is an absolute bar. An arbitration agreement, even if contained in a clause in a work order or other commercial contract, cannot have a separate existence as found in N.N. Global. The doctrine of the arbitration agreement being distinct and having a separate existence has been erroneously understood in the context of Sections 33 and 35 of the Stamp Act. The judgment in SMS Tea Estates ought not to have been overruled. The principle of stare decisis could not have been overlooked. The learned counsel drew our attention to the fact that several foreign countries have laws containing provisions similar to Sections 33 and 35 of the Stamp Act. He contended that there was no occasion to make the reference as the main case stood disposed of. He submitted that even in an application under Section 11 of the Arbitration and Conciliation Act, 1996, the Supreme Court of India was bound to observe the mandate of the law contained in Sections 33 and 35 of the Stamp Act. The law has been correctly laid down in SMS Tea Estates and Garware and was also correctly upheld in Vidya Drolia. The amendment to Section 11 by the insertion of Sub‑Section (6A) could not authorise a Supreme Court of India to overlook the dictate of Sections 33 and 35 of the Stamp Act., Smt. Malavika Trivedi, learned senior counsel, projected the same complaint against the view taken in N.N. Global. She drew our attention to the impact of the view taken in N.N. Global on the proceedings under Section 9 of the Arbitration and Conciliation Act, 1996. It is her case that the requirement to comply with Sections 33 and 35 of the Stamp Act would not be displaced, even in an application under Section 9 of the Act., Shri Gourab Banerji, learned amicus, contended that parts of Garware, Vidya Drolia and N.N. Global did lay down the law correctly. He pointed out that the bench in N.N. Global was not correct in proceeding on the basis that an arbitration agreement was not required to be stamped. He drew our attention to Article 5 of Schedule I of the Maharashtra Stamp Act, 1958. It is his submission that the existence and/or validity of an arbitration agreement is not affected by the provisions of the Stamp Act. Non‑payment of stamp duty will not invalidate the instrument; it is a curable defect. A true reading of Section 11(6A) would establish that the impounding of an unstamped or deficiently stamped instrument is not to be done by the judge under Section 11 but by the arbitrator appointed under Section 11. Section 11(6A) compels the Supreme Court of India to confine its examination to the question of the existence of the arbitration agreement. In view of the fact that neither Garware nor N.N. Global laid down the law correctly, he requested that the reference be reformulated as indicated later., Relying upon the judgment of the Supreme Court of India in Hindustan Steel Ltd. v. Dilip Construction Company, it is contended that an unstamped document can be acted upon after payment of duty and penalty. Being a curable defect, it could not be found that an unstamped instrument did not exist in the eye of law. He drew our attention to the judgment of the Privy Council in Lachmi Narayan Agarwalla and Others v. Braja Mohan Singh (since deceased), to contend that an unstamped instrument, with penalty paid, became effective in law. He further drew support from the following judgments: 51 Indian Appeals 332 i. Joyman Bewa v. Easin Sarkar; ii. Gulzari Lal Marwari v. Ram Gopal; iii. Purna Chandra Chakrabarty and others v. Kalipada Roy and another., The aforesaid case law unerringly points to the conclusion that failure to stamp a document did not affect the validity of the document; it merely rendered the document inadmissible in evidence. From the judgment of the Pakistan Supreme Court in United Insurance Company of Pakistan Limited v. Hafiz Muhammad Siddique, the following words of Justice Dorab Patel are enlisted: \It would be against all canons of construction to enlarge the meaning of the words in Section 35 so as to render invalid instruments which fall within the mischief of the section.\, The learned amicus pointed out that stamp duty is levied with reference to the instrument and not the transaction. The Stamp Act is a consolidating act; it is a fiscal law. Securing revenue was the aim. It cannot be used to clothe a litigant with an arm of technicality. He drew our attention to Section 5 of the Arbitration and Conciliation Act, 1996 interdicting judicial intervention. He pointed out Section 8 of the Act, which, after the amendment in 2015, permits disallowing a reference to arbitration only if the Supreme Court of India found prima facie that no valid arbitration agreement existed. Section 8, he noted, referred to validity. He took us through the decision in SMS Tea Estates in the context of the law laid down in SBP & Co., by the Constitution Bench, the Report of the Law Commission of India and emphasized the need for minimal interference and to give full meaning to Section 11(6A). He drew our attention to the discussion by the high‑level committee which preceded the amendment in Section 11. He commended the Supreme Court of India's acceptance of the view taken in Duro Felguera, wherein Justice Kurian Joseph, speaking for the Court, held that after the amendment, all that the courts need to see is whether an arbitration agreement exists, nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Supreme Court of India's intervention at the stage of appointing the arbitrator and this intention, incorporated in Section 11(6‑A), ought to be respected., 59. The scope of the power under Section 11(6) of the Arbitration and Conciliation Act, 1996 was considerably wide in view of the decisions in SBP & Co. v. Patel Engineering Ltd. (2005) 8 SCC 618 and Boghara Polyfab [National Insurance Co. Ltd. v. Boghara Polyfab (P) Ltd., (2009) 1 SCC 267 : (2009) 1 SCC (Civil) 117]. This position continued till the amendment brought about in 2015. After the amendment, all that the Supreme Court of India needs to see is whether an arbitration agreement exists, nothing more, nothing less. The legislative policy and purpose is essentially to minimise the Supreme Court of India's intervention at the stage of appointing the arbitrator and this intention, incorporated in Section 11(6‑A), ought to be respected., The learned amicus pointed out that non‑stamping did not render the agreement null and void. In law and in fact, an unstamped instrument bears life. He pointed out that Duro Felguera was approved by a bench of three learned judges in Mayavati Trading. He attacked the finding in Garware that an unstamped instrument was void as being incorrect. He submitted that after the insertion of Sub‑Section (6A) the requirement is clear: the existence of an arbitration agreement is all that should detain the judge in an application under Section 11. He noted that Section 5 of the Arbitration and Conciliation Act, 1996 makes certain disputes non‑arbitrable, which may detain a judge approached under Section 11 from making a reference. Exceptional cases such as agreements made by a minor or a person of unsound mind may require the judge to decline the reference. Apart from these, the amicus requested the Supreme Court of India to draw comfort from the fact that the arbitrator is fully competent by virtue of the doctrine of Kompetenz‑Kompetenz, enshrined in Section 16 of the Act, to deal with all objections. Having regard to the clear legislative intent discernible from the Report of the Law Commission and the amendment to Section 11 of the Act, which finds its echo in the change brought about in Section 8 of the Act, the effort must be to facilitate an unhindered and smooth passage for an application seeking reference to arbitration. The amicus, with reference to paragraph 18 of SBP, submits that the Supreme Court of India in Garware erred in holding that only if the arbitrator was appointed without intervention of the Court would Section 16 have full play. The judgment in SBP will not have life after the amendment in 2015. He also pointed out that the Supreme Court of India in Garware erred in suggesting that the Court was only giving effect to a mandatory enactment to protect public revenue. While correct, it is pointed out that an agreement enforceable by law is a contract and Section 2(g) of the Indian Contract Act, 1872 provides that an agreement not enforceable by law is void; non‑stamping or inadequate stamping would not make an instrument void. The suggestion that an unstamped document did not become a contract and therefore was unenforceable in law was incorrect. He also found fault with the Supreme Court of India in Garware when it held that an unstamped document would not exist as a matter of law. The solution suggested is that an arbitrator may be appointed and the arbitral tribunal allowed to fulfil its duties under the Stamp Act. In other words, in keeping with the purpose of Section 11(6A) and the need for minimal interference, as contemplated in Section 5 of the Act, on a prima facie examination of the existence of an arbitration agreement, a reference must be made. He further pointed out that the judgment of Justice Sanjiv Khanna in Vidya Drolia may require a revisit. With reference to paragraph 31, wherein Justice Sanjiv Khanna felt bound by the Constitution Bench judgment in SBP, it is pointed out that the judge ignored the amendments to Sections 8 and 11 brought about by the amendment in 2015. He further pointed out that in paragraphs 81 to 154, under the caption \Who decides non‑arbitrability\, clarity is called for. In paragraph 98, it is pointed out that an error was occasioned in concluding that Sections 8 and 11 were complementary in nature and that the jurisdiction was complementary. The views of Justice Sanjiv Khanna appear inconsistent with those of the three‑judge bench in Mayavati. The amicus submits that the observations of Justice Sanjiv Khanna in paragraphs 146, 147.1, 147.9 and 147.10 may require recalibration. Paragraphs 146 to 154 may need fine‑tuning. The amicus points out that the conclusion of Justice N.V. Ramana in paragraphs 237 and 244 may be endorsed to the extent of inconsistency with that of Justice Sanjiv Khanna. Regarding N.N. Global, the amicus notes that contrary to what was held, an arbitration agreement was indeed liable to stamp duty. The ratio in paragraphs 22 and 26 would have to be supported. The amicus contends that Sections 8 and 11 of the Arbitration and Conciliation Act, 1996 could not be equated. The standard to be applied may be the same, i.e., a prima facie satisfaction of the existence of the arbitration agreement. In Section 11, the Supreme Court of India operates as a substitute of an appointing authority; there is only a narrow scope. In an application under Section 8, the scope may be wider as one has to see whether there was a valid arbitration agreement. Unless it is patently void, subject‑matter arbitrability should be left to the arbitrator. In a Section 8 application, the Supreme Court of India should not examine the issue relating to stamp duty, which goes to admissibility and not jurisdiction. The word \existence\ in Section 11(6A) means legally enforceable existence and not mere presence in the contract. The scope of the Supreme Court of India must be circumscribed to a narrow prima facie examination of: (i) formal validity of the arbitration agreement at the stage of contract formation, including whether it is in writing; (ii) whether the core contractual ingredients were fulfilled; (iii) on rare occasions, whether the dispute was arbitrable.

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